Michigan Court Of Appeals Affirms CSC Lifetime GPS Monitoring Sentence

On October 8, 2015, the Michigan Court of Appeals affirmed an amended Criminal Sexual Conduct (CSC) - First Degree sentence that included lifetime Global Positioning System (GPS) monitoring once defendant was released from prison.

In People v Comer, Docket No. 318854, the Michigan Court of Appeals addressed the issue of whether the trial court erred in imposing lifetime GPS monitoring on defendant when the defendant's two previous (and later vacated) sentences for the same offense in the same case did not include lifetime GPS monitoring. On appeal, defendant argued that the case law surrounding lifetime GPS monitoring was "unsettled," and that the trial court did not possess the authority under the court rules to unilaterally amend defendant's sentence after a certain amount of time passed from the date defendant pleaded guilty.

The Court first recited the facts of the case:

Defendant pleaded guilty to first-degree criminal sexual conduct, MCL 750.520b(1)(c), and first-degree home invasion, MCL 750.110a(3). This court vacated his original sentences for reasons not germane to this appeal, and new sentences were imposed. Neither the first nor the second CSC sentence included a provision for lifetime electronic monitoring as required under MCL 750.520b. Three and a half months after defendant was resentenced, the Department of Corrections notified the trial court that the judgment of sentence omitted “any specific language ordering lifetime electronic monitoring.” Over defendant’s objection, the trial court resentenced him a third time and imposed lifetime electronic monitoring . . . .

On January 29, 2013, the Michigan Department of Corrections notified 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 contended 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 defendant’s sentence to add a provision for lifetime electronic monitoring. The prosecution replied that Brantley applied, and that without a provision for lifetime electronic monitoring, defendant’s sentence was invalid. The prosecution insisted that the court had the authority to correct defendant’s sentence by offering him the opportunity to withdraw his previous guilty plea or allowing that plea to stand after being informed of the lifetime electronic monitoring requirement.

At a hearing conducted on April 29, 2013, Judge Michael West, Judge Adair’s successor, found defendant’s guilty plea “defective,” declaring: “I’m not going to proceed further with the plea being defective.” Ms. Ouvrey contended that omission of lifetime electronic monitoring constituted a “substantive mistake” that could be corrected only pursuant to a timely motion to correct an invalid sentence, which the prosecution had failed to file. The court rejected this argument, reasoning: “This is not a question of whether the sentence 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.” Defendant declined to withdraw his plea. Judge West signed a new judgment of sentence maintaining the term of incarceration previously imposed and adding: “Lifetime GPS upon release from prison . . . .”

The Court's analysis of whether the trial court erred in imposing lifetime GPS monitoring followed:

. . . In People v King, 297 Mich App 465; 824 NW2d 258 (2012), two judges of this Court criticized Brantley’s reasoning and called for a conflict panel to resolve which defendants convicted of CSC-I are subject to lifetime electronic monitoring. 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 monitoring 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: defendant was subject to lifetime electronic monitoring when he was first sentenced in 2011.

In Cole, 491 Mich at 327, the Supreme Court held that when enacting MCL 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 electronic monitoring, it was properly considered invalid by the trial court . . . .

MCR 6.429 is titled “Correction and Appeal of Sentence.” Subrule (A) concerns a court’s “authority to modify” a sentence. It provides that either 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 except as provided by law.”

In People v Harris, 224 Mich App 597, 601; 569 NW2d 525 (1997), this Court held that “a motion for resentencing is not a condition precedent for a trial 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.” Further, Harris broadly declares, “There being no time restrictions specified in MCR 6.429(A), we decline to construe this court rule as containing a jurisdictional time limitation. Therefore, there was no impediment to the time of the trial court’s decision . . . that would preclude it from ordering 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 . . . .