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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, FOR PUBLICATION April 25, 2017

9:05 a.m.

v No. 330898
Kalamazoo Circuit Court SABRINA RACINE PARKER, LC No. 2013-001721-FH

Defendant-Appellant.

Before: B ECKERING , P.J., and M ARKEY and S HAPIRO , JJ.

P ER C URIAM

.

Defendant, Sabrina Racine Parke r, appeals by leave granted her guilty plea to identity theft, MCL 445.65, and conspiracy to steal and retain a financi al transaction device without consent, MCL 750.157n(1). The trial court sentenced defendant as a fourth-offense habitual offender, MCL 769.12, to 4 to 15 years’ imprisonment for each o ffense. The trial court ordered these sentences to run concurrently to one another, but consecu tively to sentences imposed upon defendant in 2010 that she failed to complete because the Depar tment of Corrections (DOC) erroneously released her into t he community in 2011. Given the absence of statutory authority to support the trial court’s imposition of consecutive sentences i n this case, we remand to the trial court to correct defendant’s judgment of sentence by striking t he provision that her current

sentences run consecutivel y to her sentences from 2010.

I. PERTINENT FACTS

In October 2010, defendant was convicted and sentenced in Kent County to serve 21 to 72 months’ imprisonment for possession of a stolen financial tr ansaction device. In November 2010, while serving her Kent County sentence, defendant was als o convicted of possession of a

stolen financial transaction de vice in Monroe County and senten ced to 32 to 48 months’ imprisonment. On June 6, 2011, t he DOC erroneously released de fendant back into the community before she finished serving either of her sentences.

The charges in the current case arose from conduct initiated o n January 9, 2013, when

defendant stole five credit cards from a victim while the victi m was participating in a yoga class. Defendant was arrested on December 17, 2013, and subsequently e ntered guilty pleas to identity theft under MCL 445.65 and conspiracy to steal and retain a fin ancial transaction device without consent under MCL 750.157n(1). The trial court sentenced defen dant to concurrent sentences of 4 to 15 years’ imprisonment for each offense. Because defendan t’s release from prison in 2011,-2- before completing her sentences from 2010, came about through c lerical error, her presentence investigation report indicated t hat she was “in prison.” Accor dingly, the trial court ordered that defendant’s sentences in this case run consecutively to the com pletion of her sentences from 2010 pursuant to MCL 768.7a. 1

II. ANALYSIS

On appeal, defendant argues th at the trial court erred by orde ring that her current sentences run consecutively to her sentences from 2010 because the consecutive sentencing provisions of MCL 768.7a do not a pply to her. We agree.

Whether a consecutive sentence may be imposed is a question of law that we review de

novo. People v Gonzalez , 256 Mich App 212, 229; 663 NW2d 499 (2003). Resolution of th is issue requires us to interpret MCL 768.7a and related statutes. “The purpose of statutory interpretation is to give effect to the intent of the Legislatu re. If a statute is clear, we enforce it as plainly written. However, if a statute is susceptible to mo re than one interpretation, we must engage in judicial construction and interpret the statute.” People v Denio , 454 Mich 691, 699; 564 NW2d 13 (1997) (citations omitted). The purpose of a conse cutive sentencing statute is “to deter persons convicted of one crime from committing other crim es by removing the security of concurrent sentencing.” People v Phillips , 217 Mich App 489, 499; 552 NW2d 487 (1996). Accordingly, “ ‘consecutive sent encing statute[s] should be con strued liberally in order to achieve the deterrent effect intended by the Legislature.’ ” Id ., quoting People v Kirkland , 172 Mich App 735, 737; 432 NW2d 422 (1988).

A trial court may only impose a consecutive sentence if specif ically authorized by statute. People v Lee , 233 Mich App 403, 405; 592 NW2d 779 (1999). Neither of the s tatutes under which the court sentenced defendant in this case specifically a uthorizes consecutive sentencing. See MCL 445.65; MCL 750.157n(1). As authority for the impositi on of consecutive sentences, the trial court relied upon MCL 768.7a, which states in pertine nt part:

(1) A person who is incarcerated in a penal or reformatory inst itution in this state, or who escapes from such an institution, and who commits a crim e during that incarceration or escape which is punishable by imprisonment in a penal or reformatory institution in this state shall, upon conviction of that crime, be sentenced as provided by law. The term of imprisonment imposed for the crime shall begin to run at the expira tion of the term or terms of im prisonment which the person is serving or has become liable to serve in a penal or r eformatory

institution in this state.

(2) If a person is convicted and sentenced to a term of impriso nment for a felony committed while the person was on parole from a sentence for a previous offense,

1 Notably, the record contains a letter from the DOC to the tria l court regarding defendant’s sentences, indicating that it did not believe that defendant’s current sentence should run consecutively to her 2010 sentences.-3- the term of imprisonment imposed for the later offense shall be gin to run at the expiration of the remaining portion of the term of imprisonment imposed for the previous offense.

According to the plain language of MCL 768.7a, to be subject t o consecutive sentencing a person must either be “incarcerated in a penal or reformatory institution,” an escapee, or a parolee. It is undisputed that defendant was neither an escape e nor a parolee when she committed the 2013 offenses. Therefore, the question before th is Court is whether defendant was “incarcerated in a penal or reformatory institution” at the time of the 2013 offenses, thus warranting imposition of a consecuti ve sentence pursuant to MCL 768.7a(1).

It is undisputed that defendant w as not literally incarcerated at the time she committed the crimes charged in this case. T herefore, interpreting MCL 768.7 a(1) according to its plain language leads to the conclusion that defendant was not subject to its provisions and the trial court improperly ordered her to serve the sentences imposed for her current crimes consecutively to those imposed for her 2010 convictions. However, “[f]or con secutive sentencing purposes the term ‘penal or reformatory insti tution’ is broadly construed to include any grounds under the control of any person authorized by the Department of Correctio ns to have a prison inmate under care, custody or supervision either in an institution or outsid e an institution.” People v Sanders

, 130 Mich App 246, 250-251; 343 NW 2d 513 (1983) (quotation marks and citation omitted). Literal confinement, therefore, “is not a controlling factor if the person continues to be under the control of the Department of Corrections.” People v Larkin , 118 Mich App 471, 474; 325 NW2d 460 (1982) (concluding that a pers on on “pre-parole” status rem ains subject to the consecutive sentencing statute); see also Kirkland , 172 Mich App at 737 (“incarcerated in a penal or reformatory institution” applies “to inmates who are participat ing in community corrections programs, assigned to halfwa y houses, or on extended furloughs. ”).

However, given the particular facts of this case, even a liber al construction of the phrase “incarcerated in a penal or reformatory institution” does not b ring defendant within MCL 768.7a(1) for sentencing purposes. After the DOC erroneously r eleased defendant on June 6, 2011, the DOC stopped asserting any type of control over defend ant or her activities. There is no evidence that the DOC was aware of or attempted to contact d efendant regarding her erroneous release. Defendant’s only connection with the DOC af ter her release in 2011 was that

she had time left unserved on her sentences from 2010 that she could have been ordered to serve under the DOC’s jurisdiction. See Michigan ex rel Oakland Co Prosecutor v Dep’t of

Corrections , 199 Mich App 681, 694; 503 NW2d 465 (1993) (indicating that a prisoner whose early release resulted from an i ncorrect method of calculating good-time and special good-time credits could have been required to complete his sentence). Ne vertheless, as Michigan’s Supreme Court recently illustrated, this connection alone is no t sufficient to find that defendant was “incarcerated in a penal or r eformatory institution” pursua nt to MCL 768.7a(1).

People v Veilleux , unpublished opinion per curiam o f the Court of Appeals, issue d March 29, 2012 (Docket No. 302335), involved a defendant who had prev iously been sentenced to 365 days in jail and three years’ probation for a felony drug viola tion, plus seven 90-day sentences for contempt of court arising fr om defendant’s outbursts at the sentencing hearing. Veilleux

, unpub op at 1-2. The trial court had ordered the seven sentenc es for contempt of court to be-4- served consecutively, and all of t he contempt sentences were to be consecutive to the sentence for the underlying felony. Id . However, the DOC released the defendant in error after servi ng 365 days in jail on the felony vi olation, without having served any of his sentences for contempt

of court. Id . at 2. Three weeks after his erroneous release, police arrest ed the defendant for assault. Although the assault charged was dismissed, the defen dant’s blood alcohol level at the time of his arrest had been .17%, and, therefore, the defendant was found in violation of the terms of his probation. Id . The trial court re-sentenced the defendant to 34 months to 1 5 years’ imprisonment, and ordered the sentence to be served consecutive to the seven sentences for contempt, relying in part on MCL 768.7a(1). 2 Id . This Court granted the defendant’s delayed application for leave to appeal, “limiting [its] inquiry to whe ther the trial court erred in ordering that defendant’s 34 month to 15-year prison term run consecutiv e to his sentences for contempt

of court.” Id . Relying heavily on the Court’s decision in Williams , a two-member majority

affirmed the trial court’s orde r of consecutive sentencing on t he ground that the defendant had to complete the sentence “he remained liable to serve” at the time of his resentencing. Id . at 4.

Defendant sought leave to appeal this Court’s decision to Mich igan’s Supreme Court. In lieu of granting leave to appeal, the Supreme Court reversed th is Court’s judgment and remanded the matter to the trial court “for it to correct the judgment o f sentence by striking those provisions making the sentences for contempt consecutive to eac h other and consecutive to defendant’s sentence for the underlying felony.” People v Veilleux , 493 Mich 914; 828 NW2d 328 (2012). Regarding the applicability of MCL 768.7a(1), the Supreme Court explained:

Contrary to the lower courts’ holdings, MCL 768.7a(1) does not specifically authorize the consecutive sentences imposed here. MCL 768.7a(1 ) applies only to “[a] person who is incarcerated in a penal or reformatory in stitution in this state, or who escapes from such a n institution.” When defendan t committed the contempts of court at issue here, he was not at the time incarc erated in a penal or reformatory institution and he was not an escapee.

2 The trial court also relied on this Court’s decision in People v Kevin Williams , unpublished opinion per curiam of the Cour t of Appeals, issued May 12, 2005 (Docket No. 254628). At issue

in Williams was whether a trial court could order that multiple contempt s entences run consecutively. People v Veilleux , unpublished opinion per curiam of the Court of Appeals, issued March 29, 2012 (Docket No. 302335), p 3 (quotation marks and citation omitted). The Court determined in relevant part that “[t]he clear and unambig uous language of MCL 768.7a(1) requires that each of defendant’s sentences for contempt . . . be consecutive ‘to terms of imprisonment which the person . . . has become liable to serve. ” Id . (quotation marks and citation omitted). Accordingly, the Court concluded, “each con tempt sentence is required to be served consecutively to those prio r contempt sentences for whic h defendant had already become

liable to serve.” Id . (quotation marks and citation omitted). Williams was not quite on point, as

unlike the defendant in Veilleux , the defendant in Williams did not contest the trial court’s authority to impose the contempt sentences consecutive to the s entence for an underlying crime.

Id

.-5- In Veilleux , our Supreme Court rejected the idea that merely being “liable to serve” a sentence is tantamount to being “incarcerated in a penal or ref ormatory institution” for purposes of MCL 768.7a(1). The Veilleux Court’s decision underscores that the purpose of the portion o f MCL 768.7a(1) at issue is to deter incarcerated persons from co mmitting crimes while incarcerated by “removing the security of concurrent sentencing ,” thereby ensuring that they will actually serve additional time for the crimes committed. See Phillips , 217 Mich App at 499. That defendant had time remaining on her sentences from 2010 is not, by itself, sufficient to find that defendant was “incarcerated in a penal or reformatory inst itution” within the meaning of MCL 768.7a(1). Accordingly, the tr ial court erre d by ordering that defendant’s current sentences run consecutive to the comple tion of her sentences from 2010 pu rsuant to MCL 768.7a(1).

The prosecution argues that def endant should be considered “in carcerated in a penal or reformatory institution” based on the interplay between MCL 768 .6, MCL 768.7, and MCL 768.7a(1). MCL 768.6 provides:

Any person now or hereafter confin ed in any penal or reformator y institution in this state, and who during the term of such confinement shall c ommit any crime or offense punishable under the laws of this state by imprisonm ent in such institution, shall be subject to the same punishment as if the crime had been committed at any other place or by a person not so confined.

And MCL 768.7 provides in relev ant part as follows:

The circuit court for the county in which the prison or institu tion named in the preceding section is, shall have jurisdiction over cases arisin g under the foregoing section[.] . . . The provisions of this and the preceding sect ion shall apply to persons who are temporarily outside the limits of the instituti ons named in such sections, except those prisoners who have received a parole by due process of law and are at liberty under the terms of such parole.

MCL 768.6 applies when a person commits a crime while “confine d in any penal or reformatory institution.” MCL 768.7 expands the applicability of MCL 768.6 to persons “temporarily outside the limits” of such institutions at the ti me the person commits a crime. Thus, a person who commits a cri me while “temporarily outside t he limits” of a penal or reformatory institution may be punished as though the person co mmitted the crime while incarcerated in a penal or ref ormatory institution. MCL 768.6; MCL 768.7. If a person commits a crime while “incarcerated in a penal or reformatory instituti on,” the person is subject to consecutive sentencing pursuant to MCL 768.7a(1). Based on thi s interplay between MCL 768.6, MCL 768.7, and MCL 768.7a(1), the prosecution argues tha t defendant was subject to consecutive sentencing pursuant to MCL 768.7a(1) because she co mmitted the crimes in this case while “temporarily outside t he limits” of a penal or refor matory institution.

We find the prosecution’s argument unpersuasive. MCL 768.7 do es not define “temporarily,” nor is a definition provided in the relevant sec tion of the Code of Criminal Procedure, MCL 761.1. Where terms are undefined, a court may c onsult a dictionary regarding their plain and ordinary meaning. People v Ackah-Essien , 311 Mich App 13, 25; 874 NW2d 172-6- (2015). The dictionary defines t he word “temporarily” as “duri ng a limited time.” MerriamWebster’s Collegiate Dictionary (11th ed), p 1286. Nothing in the record indicates that defendant’s erroneous release from prison was for a “limited ti me” only, after which she would be returning to incarceration. The DOC did not attempt to brin g defendant back under its control or notify her that she was out by mistake, or even seem aware t hat an error had occurred. In other words, nothing in the recor d suggests that defendant’s ti me at liberty was other than

unlimited. If there was no limit on defendant’s time at liberty, there is no possible interpretation

of MCL 768.7 that would allow fo r defendant’s time outside of a penal or reformatory institution to be considered temporary.

Accordingly, we conclude that the trial court erred by orderin g that defendant’s current sentences run consecutively to her previous sentences from 2010 pursuant to MCL 768.7a(1), and thus, we remand the case to the trial court to correct the judgment of sentence by striking the provisions making defendant’s s entences consecutive. We do not retain jurisdiction.

/s/ Jane M. Beckering /s/ Jane E. Markey /s/ Douglas B. Shapiro