Order Michigan Supreme Court 

Lansing, Michigan 

May 16, 2008 Clifford W. Taylor,

 Chief Justice 

135613 Michael F. Cavanagh 

Elizabeth A. Weaver 

Marilyn Kelly 

PEOPLE OF THE STATE OF MICHIGAN, 

Plaintiff-Appellee, 

Maura D. Corrigan 

Robert P. Young, Jr. 

Stephen J. Markman,

 Justices 

v SC: 135613 

 COA: 278360 

Muskegon CC: 01-046608-FH 

CURTIS PECK, 

Defendant-Appellant. 

_________________________________________/ 

On order of the Court, the application for leave to appeal the November 28, 2007 

order of the Court of Appeals is considered, and it is DENIED, because we are not 

persuaded that the question presented should be reviewed by this Court. 

CORRIGAN, J., concurs and states as follows: 

I concur in the order denying leave because it is clear that the trial judge properly 

corrected defendant’s erroneous maximum sentence. The judge reasonably explained 

that the error was clerical in nature and therefore correctable under MCR 6.435(A). The 

judge also aptly cited case law holding that an erroneously imposed maximum sentence is 

a “nullity” — and correctable at any time — because the Legislature generally fixes 

maximum sentences and courts have no discretion to depart from the statutorily defined 

maximums. People v Bannan (In re O’Dell), 365 Mich 429, 431 (1962); People v Smith, 

35 Mich App 349, 351-352 (1971). 

As Justice Kelly observes, at the sentencing hearing following defendant’s 

probation violation, the judge erroneously imposed a five-year maximum sentence for 

second-degree home invasion, which carries a statutory maximum sentence of 15 years. 

Defendant was informed of the 15-year maximum at his original guilty-plea hearing and 

at the later hearing when he pleaded guilty to violating probation. The judge observed 

that all of his notes in the case reflected the 15-year maximum. When the judge later 

amended the sentence, he characterized his error as “a clerical mistake (by the judge, not 

his clerk).” 
2 

The judge also advised defendant that he could request appointment of counsel in 

order to challenge the amendment, if defendant so chose. Defendant did so and moved 

for resentencing. The judge denied defendant’s motion, correctly observing that the 

maximum sentence for defendant’s offense is set by statute, as are the maximum 

sentences for most offenses in Michigan. See People v Harper, 479 Mich 599, 612 

(2007). Sentencing courts are not empowered to deviate from fixed statutory maximums. 

MCL 769.8(1). The judge quoted Bannan, supra at 431, in which this Court cited 

decisions establishing that “the maximum term is fixed by law, that a lesser maximum 

provided in a sentence is a nullity and that the maximum fixed by statute should be read 

into the sentence.” The Bannan Court also observed that “imposition of an unlawful 

sentence by a sentencing judge does not so exhaust his sentencing power as to preclude 

his exercising it again to impose a valid sentence.” Id. The judge also cited Smith, supra 

at 351-352, which held: “The duty to impose a maximum sentence is ministerial. . . . 

The entry of a Nunc pro tunc order is a proper method to correct a maximum sentence.” 

MCR 6.435(A) provides: “Clerical mistakes in judgments, orders, or other parts 

of the record and errors arising from oversight or omission 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.” The 1989 staff comment to the rule illustrates: “A prison sentence entered on 

a judgment that is erroneous because the judge misspoke or the clerk made a typing error 

is correctable under subrule (A).” Justice Kelly asserts that, here, the judge did not state 

that he misspoke at defendant’s sentencing. Yet the judge appears to mean exactly this 

when he characterizes the error as a clerical mistake by the judge. Moreover, regardless 

that the judge’s notes indicating the correct maximum sentence are not in the lower court 

file, there is no evidence that the judge intentionally imposed the incorrect maximum 

because he misapprehended the law. Rather, the record shows that the judge and parties 

were aware, throughout the case, that defendant’s offense carried a 15-year maximum 

term. 

Regardless of whether I agree that a violation of the Tanner rule may not be 

corrected by the court on its own initiative, the erroneous sentence in this case is not akin 

to a violation of the Tanner rule, as Justice Kelly suggests. The rule, now codified in 

MCL 769.34(2)(b), prohibits a sentencing court from imposing a minimum sentence that 

exceeds two-thirds of the statutory maximum sentence. MCL 769.34(2)(b); People v 

Tanner, 387 Mich 683, 690 (1972); People v Garza, 469 Mich 431, 435 (2003) 

(acknowledging codification). When a judge violates the Tanner rule, he exercises his 

sentencing discretion to intentionally impose what he believes to be an appropriate 

minimum sentence. He imposes an erroneous sentence because he misapprehended or 

misapplied the relevant law. But the ministerial act of imposing a statutory maximum 

sentence is not susceptible to the same kind of mistake. Only the statutory maximum 

sentence is appropriate and the trial judge does not exercise discretion in imposing the 

maximum. 
 

 

3 

I would also note that trial judges are not generally precluded from correcting 

substantive mistakes in their judgments. Rather, under MCR 6.429, a judge may correct 

an invalid judgment — and may even correct a valid judgment “as provided by law” — 

even after judgment has entered. At a minimum, if the period for appeal or correction has 

passed, a defendant may seek post-appeal relief under subchapter 6.500. MCR 

6.429(B)(4). 

For these reasons, the judge in this case appropriately corrected the error. Most 

significantly, defendant has not suffered injustice; his sentence was merely conformed to 

the correct statutory maximum, of which he was informed when he pleaded guilty of 

second-degree home invasion and again when he pleaded guilty to violating probation. 

Indeed, were we to conclude that resentencing is required, the judge would simply be 

bound to impose the correct 15-year maximum upon resentencing. Accordingly, I concur 

in the order denying leave. 

KELLY, J., dissents and states as follows: 

I would grant leave to appeal in this case. At sentencing, the circuit judge 

informed defendant that he was imposing a term of imprisonment of 1-1/2 to 5 years. 

After defendant had served nearly five years in prison and was ready for release, the 

Department of Corrections advised the judge that he had erred in imposing a five-year 

maximum sentence. Less than one month before defendant’s release date, the judge 

notified defendant that he was changing defendant’s sentence to a maximum term of 15 

years’ imprisonment. The judge entered the new judgment of sentence nunc pro tunc. 

Thus, just as defendant was preparing for imminent release from prison, he learned that 

he would remain there for as many as 10 additional years. 

There is no question that the correct statutory maximum sentence in this case is 15 

years’ imprisonment. In fact, defendant was informed of the statutory maximum at his 

original guilty-plea hearing and at a later hearing when he pleaded guilty of violating 

probation. But the fact remains that he was sentenced to five years’ maximum 

imprisonment and five years elapsed between entry of the original judgment of sentence 

and discovery of the error. Because of the time lapse, it is not clear by what means the 

sentence can be legally changed. 

The judge has tried the device of denominating the error a “clerical mistake” under 

MCR 6.435(A). If the error was not clerical, it was substantive. The staff comment to 

the court rule provides some guidance for distinguishing between clerical and substantive 

mistakes.1

 It suggests that, if the trial judge simply misspoke or if the clerk made a 

1

 MCR 6.435, 1989 staff comment. 
 

 

4 

typing error, the mistake is clerical in nature.2

 However, the comment further suggests 

that, if the judge relied on mistaken facts “or made a mistake of law (for example, 

unintentionally imposed a sentence in violation of the Tanner[3] rule),” the mistake is 

substantive.4

 A substantive mistake cannot be corrected under this court rule after 

judgment has been entered. Assuming that the staff comment to MCR 6.435 correctly 

interprets the court rule, the error in this case may not have been correctable. 

When he characterized his error as “clerical,” the judge added that his notes 

reflected the correct 15-year maximum. However, his notes are not part of the lower 

court record. Moreover, the judge did not claim that he misspoke at defendant’s 

sentencing. If the judge did misspeak, why did he sign a judgment of sentence that 

reflected the same sentence? 

The record suggests that the error in this case may be an error of law akin to an 

unintentional violation of the Tanner rule. In Tanner, this Court held that a minimum 

sentence exceeding two-thirds of the maximum is improper because it does not comply 

with the indeterminate sentence act.5 The Legislature later codified this rule.6 A 

minimum term that fails to comply with the Tanner rule is invalid.7 

The sentencing court has no discretion in imposing the statutory maximum. But it 

has discretion in imposing a minimum sentence. However, the legislative sentencing 

guidelines, which incorporate the Tanner rule, limit the sentencing court’s discretion in 

imposing a minimum term.8 If the sentencing court violates the Tanner rule, it does so 

because it has misapprehended or misapplied the relevant law. Thus, if a sentencing 

court unintentionally pronounces an invalid minimum term in violation of the Tanner 

rule, it commits an error of law. 

A sentencing court that imposes an invalid maximum sentence has also 

misapprehended or misapplied the relevant law. An unintentional violation of a statutory 

requirement to impose the statutory maximum sentence renders the sentence invalid just 

as a Tanner violation would render the sentence invalid. Therefore, both errors are errors 

of law. 

2 Id. 

3 People v Tanner, 387 Mich 683 (1972). 

4 Id. 

5 Id. at 690. 

6

 MCL 769.34(2)(b). 

7 People v Thomas, 447 Mich 390, 393-394 (1994). 

8

 MCL 769.34(2)(b). 
 

 

5

 And both errors generally are corrected in the same manner. When an appellate 

court concludes that a Tanner violation has occurred, it should direct the sentencing court 

to reduce the minimum term to two-thirds of the maximum.9 Similarly, to correct an 

error concerning the statutory maximum challenged in accord with our court rules, an 

appellate court should direct that the maximum term be that which is required by law. 

These errors are similar in kind. 

Because a Tanner violation and an error in the imposition of the statutory 

maximum are similar, both may be substantive. However, the remedy generally applied 

to Tanner violations challenged on appeal cannot clearly be applied here. The error in 

this case was not timely challenged on appeal as was the Tanner error. Nor did either 

party timely move to correct the invalid sentence under MCR 6.429. And, only a 

defendant may seek relief from an invalid sentence by filing a postconviction motion 

under subchapter 6.500. Defendant did not file such a motion. 

There is Michigan caselaw holding that the imposition of a maximum sentence 

that is below the statutory maximum is a nullity.10 Entry of a nunc pro tunc order is 

proper to correct the error.11 However, this caselaw predates the current court rules. 

Unless the imposition of an invalid maximum sentence was a clerical error, the court 

rules appear to provide no method to correct an error in the maximum sentence 

discovered five years later. The apparent gap between our court rules and prior caselaw 

argues loudly for this Court to grant leave to appeal in this case. 

The proper interpretation of MCR 6.435(A) is jurisprudentially significant 

because, if “clerical errors” are defined too broadly, judgments will lose their finality. 

Trial judges may be encouraged to amend their judgments by characterizing the 

amendment as the mere correction of a clerical mistake. As Justice Markman notes, the 

unique facts of this case may also implicate defendant’s constitutional rights. 

The issues presented merit full appellate review. Because they raise important 

questions of law, I would grant leave to appeal. 

MARKMAN, J., dissents and states as follows: 

9 Id. at 392-394. 

10 In re O’Dell, 365 Mich 429, 431 (1962). 

11 People v Smith, 35 Mich App 349, 352 (1971). 
 _________________________________________ 

 

 

 

6 

Defendant was sentenced to a maximum term of five years in prison, and had 

served virtually the entirety of his sentence when the trial court took the remarkable step 

of adding ten additional years to defendant’s maximum sentence less than one month 

before its completion. That is, as defendant was presumably anticipating his imminent 

release from prison, and after he had apparently fulfilled his debt to society, the trial court 

suddenly tripled his maximum sentence to 15 years. 

This extraordinary and — to the best of my recollection — unprecedented 

sequence of events merits appellate review. Just as finality in the appellate process is 

necessary to ensure that the rehabilitative functions of the criminal justice system can 

begin to have an effect, so too is finality in the sentencing process. I would remand to the 

Court of Appeals for consideration as on leave granted whether defendant’s constitutional 

or statutory rights were in any way implicated by the timing of events in this case. I also 

share Justice Kelly’s concerns that the trial court’s error in this case is not properly 

characterized as a “clerical” error.12

 CAVANAGH, J., joins the statement of MARKMAN, J. 

12 Justice Corrigan suggests that MCR 6.429, pertaining to the correction and appeals of 

sentences, may be applicable. However, that court rule requires that a “motion” be 

“filed” by a “party” before a trial court may correct a sentence. Here, neither the 

prosecutor nor defendant filed a motion to amend the sentence. Moreover, under MCR 

6.429(B)(4), only a defendant may seek an amended sentence if that defendant “is no 

longer entitled to appeal by right or by leave,” as is the case here. Hence, MCR 6.429 

does not lend support to the majority’s argument. 

t0513 

I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the 

foregoing is a true and complete copy of the order entered at the direction of the Court. 

May 16, 2008 

Clerk