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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, FOR PUBLICATION October 8, 2015

v No. 318854 St. Clair Circuit Court JUSTIN TIMOTHY COMER, LC No. 11-001804-FC

Defendant-Appellant.

G LEICHER , P.J. ( concurring ).

I concur with the result reached in the majority opinion only because I am compelled to do so by People v Harris , 224 Mich App 597; 569 NW2d 525 (1997). In my view, Harris was wrongly decided and should be overruled by our Supreme Court. Further, I believe that the Supreme Court has signaled, albe it in obiter dictum, that the a nalysis set forth in Harris is deeply flawed. Were it not for Harris , I would vacate the electronic monitoring provision from defendant’s sentence.

Resolution of this case hinges on an interpretation of two clo sely related court rules. The first, MCR 6.429 sets forth two relevant subrules. Subrule (A) establishes that a trial court possesses the authority to correct an invalid sentence. Subrul e (B), titled “Time for Filing Motion,” sets forth various time limits for filing a motion to correct an invalid sentence. Subsection (B)(1) provi des that “[a] motion to correct an inval id sentence may be filed before the filing of a timely claim of appeal.” If a claim of appeal has already been filed, a motion to correct an invalid sentence may be filed only in accordance wit h the procedure set forth in MCR 7.208(B), or the remand procedure set forth in MCR 7.211(C)(1). 1 MCR 6.429(B)(2). If the matter involves adefendant who may only appeal by leave (as her e), a motion to correct an invalid sentence must be filed “within 6 months of entry of the judgment of conviction and sentence.” MCR 6.429(B)(3). When a defendant is no longer ent itled to appeal by leave,

1 MCR 7.208(B) provides that “[n]o later than 56 days after the commencement of the time for filing the defendant-appellant’s brief” in the Court of Appeals , the defendant may file in the trial court a motion to correct an invalid sentence. MCR 7.211(C)(1) addresses motions to remand filed in the Court of Appeals “[ w]ithin the time provided for f iling the appellant’s brief.” Neither rule applies here.-2- “defendant may seek relief pursuant to the procedure set forth in subchapter 6.500.” MCR 6.429(B)(4).

These procedures clearly contemplate that a court may correct an invalid sentence only after a party has filed a motion seeking that relief. Although MCR 6.429(A) imbues a court with the authority to correct an invalid senten ce, MCR 6.429(B) describes in cons iderable detail the
process for correcting an invalid sentence. That process commences wi th the filing of a motion. Justice S TEPHEN M ARKMAN reached the same conclusion when dissenting from an order deny ing leave to appeal in People v Peck , 481 Mich 863 (2008). Joined by Justice C AVANAGH , Justice M ARKMAN wrote that MCR 6.429 “requires that a ‘motion’ be ‘filed’ by a ‘party’ before a trial court may correct a sentence.” Id . at 867 n 1. No motion was filed i n the case at bar.

Furthermore, I believe that the Supreme Court’s opinion in People v Holder , 483 Mich 168; 767 NW2d 423 (2009), comes close to implicitly overruling Harris . The defendant in Holder committed several crimes after receiving a parole discharge fr om prison. Id . at 169. The trial court sentenced him for those crimes. Subsequently, the Department of Corrections notified the defendant and the trial cour t that it had “cancelled” the d efendant’s parole discharge. The DOC asked the judge “to amend the defendant’s judgment of sente nce to reflect that the sentence imposed was to be served consecutively to the sentence for whic h defendant was on parole.” Id

. at 170. The judge complied with this request. Id . The Supreme Court held that “[b]ecause the original judgment of sentence wa s valid when imposed, the sente ncing judge had no authority to modify it pursuant to MCR 6.429(A),” and vacated the amended se ntence. Id . The Supreme Court emphasized that notices sent by the DOC to trial courts “ are merely advisory and informational in nature,” and do not excuse compliance with “th e relevant statutes and court rules.” Id

.

Holder is distinguishable from this case, as the sentence in Holder was valid when imposed while defendant’s sentenc e was not. However, in obiter dictum the Holder Court observed:

While the DOC certainly has an obligation to ensure that any s entence executed is free from errors, the department is not a party to the underlying criminal proceedings under either MCR 6.429 or MCR 6.435. As a result, we wish to reiterate that any notices sent from the DOC to the courts and parties regarding sentencing errors are m erely informational, and any r equests contained therein merely advisory. Any judge receiving such a notice mus t ascertain the nature of the claimed error, determine whether the error implic ates a defendant’s sentence, and consider the cur ative action recommended by the D OC. It is imperative, however, that any corrections or modifications to a judgment of sentence must comply with the relevant statutes and court rules

. Significantly, if the claimed error is substantive, the c ourt may modify the se ntence only “[a]fter giving the parties an opportunity to be heard” and if “it has not yet entered judgment in the case. . . .” MCR 6.435(B). Similarly, if the original judgment of sentence was valid when entered, MCR 6.429(A) controls and mand ates that the court “may not modify a valid sentence after it has been impose d except as provided by law.” [ Id . at 176-177 (emphasis added, alt erations in original).]-3- Here, as in Holder , a letter from the DOC triggered the trial court’s correction of defendant’s sentence. Here, as in Holder , the error was substantive rather than clerical. I conclude, as the Supreme Court indicated in Holder , that the procedure for correcting a substantive error is governed by MCR 6.435(B).

MCR 6.435 empowers courts to correct “mistakes.” This court r ule distinguishes between two types of mistakes—“c lerical” and “subs tantive”—as f ollows:

(A) Clerical Mistakes. Clerical mistakes in judgments, orders , or other parts of the record and errors arising from oversight or omissi on may be corrected by the court at any time on its own initiative or on motion of a party, and after notice if the court orders it.

(B) Substantive Mistakes. After giving the parties an opportu nity to be heard, and provided it has not yet entered judgment in the case , the court may reconsider and modify, correct, or rescind any order it conclud es was erroneous. [Emphasis added.]

Because the omission of lifetime electronic monitoring from bot h judgments of sentence constituted a substantive rather than a clerical mistake, were it not for Harris , I would hold that the trial court lacked the aut hority to correct this mistake.

According to the 1989 Staff Comment to MCR 6.435, subrule (A) permits a court to correct “an inadvertent error or omission in the record, or in an order or judgment.” The purpose of subrule (A) “is to make the lower court record and judgment accurately reflect what was done and decided at the trial level.” Central Cartage Co v Fewless , 232 Mich App 517, 536; 591 NW2d 422 (1998) (discussing MCR 2.612[A] , which is identical to MCR 6.435[A]).

The staff comment explains that subrule (B), addressing “subst antive mistakes,” “pertains to mistakes relating not to the accuracy of the record, but rat her, to the correctness of the conclusions and decisions reflect ed in the record.” The commen t continues, “[s]ubstantive mistake refers to a conclusion or decision that is erroneous be cause it was based on a mistaken belief in the facts or the applicable law.” MCR 6.435, 1989 St aff Comment. The comment provides the following examples intended to “illustrate the dis tinction” between clerical and substantive mistakes:

A prison sentence entered on a judgment that is erroneous becau se the judge misspoke or the clerk made a typing error is correctable under subrule (A). A prison sentence entered on a judgment that is erroneous because the judge relied on mistaken facts (for example, confused codefendants) or made a mistake of law (for example, unintentionally im posed a sentence in violation o f the Tanner rule 2 )

2 The “ Tanner rule” refers to the pre-legislative sentencing guideline rule that a defendant’s minimum sentence could be no more than 2/3 his maximum sentence . See People v Tanner , 387 Mich 683; 199 NW2d 202 (1972).-4- is a substantive mistake and is c orrectable by the judge under subrule (B) until the judge signs the judgmen t, but not afterwards. [ Id .]

During defendant’s first two sen tencing hearings, neither Judg e Adair nor the prosecuting attorney mentioned lifetime electronic monitoring. Most likely , this was because it remained unclear whether lifetime electr onic monitoring was required whe n a defendant’s CSC-I offense did not involve a child under the age of 13. Brantley and King illustrate the disagreement involving this legal question. In my view, Judge Adair (and th e prosecutor) neglected to raise the issue of lifetime monitori ng because both were “laboring un der a misconception of the law.” See People v Whalen , 412 Mich 166, 170; 312 NW2d 638 (1981). Their misconception gave rise to a substantive mistake requiring correction. Under MCR 6.435(B), that correction could only occur before the court ent ered a judgment of sentence.

Notably, in Harris , this Court failed to address MCR 6.435. I believe that prope rly construed, MCR 6.435 governs the procedure for correcting mista kes that render a sentence invalid. Alt hough MCR 6.429 empowers a trial cour t to make corrections, MCR 6.435 imposes limits on that authority. Because the correction of substantiv e mistakes must occur before entry of the judgment of sentence, I believe that Judge West was fore closed from adding lifetime electronic monitoring as a te rm of defendant’s sentence.

Finally, I believe that Judge West erred by attempting to circ umvent MCR 6.435 by withdrawing defendant’s guilty plea and forcing him to enter a renewed plea of guilty. A defendant may move to withdraw his guilty plea within six month s after sentence, and thereafter only in accordance with the procedure set forth in MCR 6.500 et seq . MCR 6.310(C). Defendant did not move to withdr aw his guilty plea within six m onths, and never invoked the procedures set f orth in MCR 6.500 et seq . MCR 6.310(C) further provides:

If the trial court determines that there was an error in the p lea proceeding that would entitle the defendant to have the plea set aside, the cou rt must give the advice or make the inquiries necessary to rectify the error and then give the defendant the opportunity to elect to allow the plea and senten ce to stand or to withdraw the plea.”

In context, this provision of M CR 6.310(C) relates to the trial court’s determination of a motion brought by a defendant to withdr aw a guilty plea. MCR 6.310(E) allows a court to vacate a plea on a prosecutor’s motion “if the defendant has failed to comply with the terms of a plea agreement.” I have located no authority empowering a trial cou rt to independently decide, years after sentencing, that a defect in the plea proceeding required setting aside a guilty plea. Moreover, in People v Strong , 213 Mich App 107, 112; 539 NW2d 736 (1995), this Court emphasized that a “trial court may exercise its discretion to v acate an accepted plea only under the parameters of the court rule.” Thus, in my view the trial court abused its discretion by withdrawing defendant’s guilty plea and requiring him to re-ple ad, and did not restart the clock under MCR 6.435(B).-5- Harris permits a trial court to substantively modify a defendant’s se ntence without a motion, and at any time. I believe that MCR 6.435 was intended to rein in a court’s authority to alter even an invalid sentence , and urge the Supreme Court to c onsider this question.

/s/ Elizabeth L. Gleicher