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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, FOR PUBLICATION October 8, 2015 9:00 a.m.

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

Defendant-Appellant.

Before: G LEICHER , P.J., and S AWYER and M URPHY , JJ.

P ER C URIAM

. Defendant pleaded guilty to first-degree criminal sexual condu ct, MCL 750.520b(1)(c), and first-degree home invasion, MCL 750.110a(3). This court va cated his original sentences for reasons not germane to this appeal, and new sentences were impo sed. Neither the first nor the second CSC sentence included a provision for lifetime electroni c monitoring as required under MCL 750.520b. Three and a half months after defendant was rese ntenced, the Department of Corrections notified the trial court that the judgment of sente nce omitted “any specific language ordering lifetime electronic m onitoring.” Over defendant’s obj ection, the trial court resentenced him a third time and imposed lif etime electron ic monitoring.

Defendant asserts that he is not subject to lifetime electroni c monitoring, and that the trial court waited too long before imposing that punishment. Binding caselaw requires us to reject both arguments. Accordingly, we affirm.

I.

In 2011, former St. Clair Circuit Court Judge James Adair sent enced defendant to 51 months’ to 18 years’ imprisonment for CSC-I. The judgment of s entence form included a line to be checked by the trial court indicating: “The defendant is sub ject to lifetime monitoring under MCL 750.520n.” Judge Adair did not place a checkmark on this l ine or otherwise indicate in the judgment of sentence that defendant was subject to lifetime ele ctronic monitoring.

Defendant sought leave to appeal his sentence, contending that the trial court had improperly scored several offens e variables. In lieu of granti ng leave to appeal, we vacated defendant’s CSC sentence and remanded for resentencing. People v Comer , unpublished order of the Court of Appeals, issued June 29, 2012 (Docket No. 30940 2). On October 8, 2012, Judge Adair resentenced defendant, lowering his minimum sentence for both convicted offenses to 42-2- months’ imprisonment. The second judgment of sentence form inc ludes the same unchecked line referencing lif etime monitoring and omits any other refere nce to that punishment.

On January 29, 2013, the Michigan Department of Corrections no tified Judge Adair that pursuant to People v Brantley , 296 Mich App 546; 823 NW2d 290 (2012), defendant’s sentence should have included lifetime electronic monitoring. Defendant ’s previous appellate counsel, Jacqueline Ouvry, filed an objection, arguing that Brantley did not apply to defendant and that because the prosecution neglected to bring a motion to correct defendant’s sentence, MCR 6.429(B)(3) precluded resentencing. Ms. Ouvrey further contend ed that the Supreme Court’s opinions in People v Cole , 491 Mich 324; 817 NW2d 497 (2012), and People v Lee , 489 Mich 289; 803 NW2d 165 (2001), prohibited the court from amending de fendant’s sentence to add a provision for lifetime electroni c monitoring. The prosecution replied that Brantley applied, and that without a provision for lif etime electronic monitoring, de fendant’s sentence was invalid. The prosecution insisted that th e court had the authority to co rrect defendant’s sentence by offering him the opportunity to w ithdraw his previous guilty pl ea or allowing that plea to stand after being informed of the lif etime electronic monitoring requ irement.

At a hearing conducted on April 29, 2013, Judge Michael West, Judge Adair’s successor, found defendant’s guilty plea “d efective,” declaring: “I’m not going to proceed further with the plea being defective.” Ms. Ouvrey contended that omission of l ifetime electronic monitoring constituted a “substantive mistake” that could be corrected onl y pursuant to a timely motion to correct an invalid sentence, whi ch the prosecution had failed t o file. The court rejected this argument, reasoning: “This is not a question of whether the sen tence is invalid. This is a question as to whether the plea was invalid.” Judge West then offered defendant the opportunity to withdraw his guilty plea or to allow the plea to stand while acknowledging that the plea “carries with it . . . lifetime electronic monitoring.” Defend ant declined to withdraw his plea. Judge West signed a new judgment of sentence maintaining the te rm of incarceration previously imposed and adding: “Lifetime GP S upon release from prison.”

Defendant again sought appellate review of his sentence, and t he trial court appointed different counsel. This Court de nied defendant’s delayed appli cation for leave to appeal. People v Comer , unpublished order of the Court of Appeals, issued January 27, 2014 (Docket No. 318854). The Supreme Court remanded for consideration as on leave grant ed. People v Comer

, 497 Mich 957; 858 NW2d 462 (2015).

III.

Defendant first contends that Brantley “did not create a mandate to amend the Judgment of Sentence in every CSC-I case issued since 2006, where lifeti me electronic monitoring was not applied.” While we agree that no such “mandate” exists, we rej ect defendant’s related argument that the law remains “unsettled” regarding whether defendants c onvicted of CSC-I are subject to lifetime electronic monitoring. In Brantley , this Court considered the statutory circumstances under which a defendant convicted of CSC-I must submit to lifet ime electronic monitoring. The defendant in that case contended that lifetime electronic monit oring could be imposed only if the defendant was 17 years or older and the victim was less than 13 years old at the time of the offense. Brantley , 296 Mich at 556. The majority c onceded that “the language of MCL 750.520n(1) does seem to indicate that a trial court must order a defendant who is convicted of-3- CSC-I to submit to life time electronic monitoring only if the defendant was 17 years old or older, and the victim was less than 13 years old.” Id. at 557 (emphas is in original). Over a strong dissent by Judge K.F. K ELLY , the majority nevertheless determined that “in context” and pursuant to a tool of statutory interpretation known as the las t antecedent rule, defendants convicted of CSC-I under MCL 75 0.520b(1)(c) are subject to life time monitoring under MCL 750.520b(2), regardless of the age of the defendant or the vict im. Id . at 557-559.

In People v King , 297 Mich App 465; 824 NW2d 258 (2012), two judges of this Cou rt criticized Brantley ’s reasoning and called for a conflict panel to resolve which d efendants convicted of CSC-I are subject t o lifetime electronic monitorin g. This Court declined to convene a conflict panel, People v King , 297 Mich App 802 (2012), and the Supreme Court denied the defendant’s application for leave to appeal. People v King , 493 Mich 938; 839 NW2d 595 (2013). More recently, in People v Johnson , 298 Mich App 128; 826 NW2d 170 (2012), we reiterated that MCL 750.520b(2) “requires lifetime electronic m onitoring for first-degree criminal sexual conduct convictions when the defendant has not been sentenced to life in prison without the possibility of parole.” Id. at 135-136. We are required to follow Brantley and Johnson , MCR 7.215(J), and conclude that the law is now settled: defen dant was subject to lifetime electronic monitoring whe n he was first sentenced in 2 011.

In Cole , 491 Mich at 327, the Supreme C ourt held that when enacting MC L 750.520n(1), the Legislature intended to make lifetime electronic monitoring part of the sentence itself for CSC-I. Thus, because Mr. Comer’s sentence did not include elec tronic monitoring, it was properly considered inva lid by the trial court.

IV.

We next consider whether the trial court possessed the authori ty to correct defendant’s sentence 20 months after the original sentencing. 1 Our resolution of this issue hinges on our interpretation of several rules of criminal procedure. We inte rpret and apply these rules de novo. Lee , 489 Mich at 295. In doing so, we are guided by the general r ules of statutory interpretation. Hinkle v Wayne Co Clerk , 467 Mich 337, 340; 654 NW2d 315 (2002). Foremost among those rules is that we must give effect to the intent and purpose und erlying them. Brown v Gainey Transp Servs, Inc , 256 Mich App 380, 383; 663 NW2d 519 (2003). Because both jud gments of sentence violated the law by omitting a provision for lifetime monitoring, we tra in our attention on the rules governing corre ction of invalid sentences.

MCR 6.429 is titled “Correction and Appeal of Sentence.” Subr ule (A) concerns a court’s “authority to modify” a sentence. It provides that eit her party may move “to correct an invalid sentence.” The rule continues, “The court may correct an invalid sentence, but the court may not modify a valid sentence after it has been imposed excep t as provided by law.”

1 Defendant’s 4-1/2 page brief on appeal only tangentially raise s this issue, but we consider it nonetheless as defendant raised this issue more fully in an in pro per reply brief filed in the Supreme Court.-4- In People v Harris , 224 Mich App 597, 601; 569 NW2d 525 (1997), this Court held t hat “a motion for resentencing is not a condition precedent for a t rial court to correct an invalid sentence under MCR 6.429(A),” and that the court rule “does not set time limits with respect to a trial court’s authority to correct an invalid sentence.” Furth er, Harris broadly declares, “There being no time restrictions specified in MCR 6.429(A), we declin e to construe this court rule as containing a jurisdictional tim e limitation. Therefore, there was no impediment to the time of the trial court’s decision . . . th at would preclude it from orderi ng a resentencing pursuant to MCR 6.429(A).” Id . We are bound by Harris . MCR 7.215(C). Accordingly, the trial court was empowered to correct defendant’s invalid sentence without time limitation.

We affirm.

/s/ Elizabeth L. Gleicher /s/ David H. Sawyer /s/ William B. Murphy