Order                                                                       Michigan Supreme Court
                                                                                  Lansing, Michigan

  September 24, 2018                                                                Stephen J. Markman,
                                                                                               Chief Justice

  153209                                                                                  Brian K. Zahra
                                                                                  Bridget M. McCormack
                                                                                        David F. Viviano
                                                                                    Richard H. Bernstein
  PEOPLE OF THE STATE OF MICHIGAN,                                                       Kurtis T. Wilder
            Plaintiff-Appellee,                                                    Elizabeth T. Clement,
                                                                                                    Justices
  v                                                       SC: 153209
                                                          COA: 330148
                                                          Calhoun CC: 2015-000455-FH
  KEITH EDWARD WORTHINGTON,
             Defendant-Appellant.
  _________________________________________/

          By order of October 5, 2016, the application for leave to appeal the January 6,
  2016 order of the Court of Appeals was held in abeyance pending the decision in People
  v Comer (Docket No. 152713). On order of the Court, the case having been decided on
  June 23, 2017, 500 Mich 278 (2017), the application is again considered and, pursuant to
  MCR 7.305(H)(1), in lieu of granting leave to appeal, we VACATE the June 4, 2015
  amended judgment of sentence, and we REMAND this case to the Calhoun Circuit Court
  to reinstate the May 15, 2015 judgment of sentence. In Comer, we held that correcting an
  invalid sentence by adding a statutorily mandated term is a substantive correction that a
  trial court may make on its own initiative only before judgment is entered. In this case,
  the trial court did not have authority to amend the judgment of sentence after entry to add
  a provision for consecutive sentencing under MCL 768.7a(2). In all other respects, leave
  to appeal is DENIED, because we are not persuaded that the remaining questions
  presented should be reviewed by this Court.

         We do not retain jurisdiction.

         VIVIANO, J. (concurring).

         In this case, defendant was erroneously given a concurrent sentence when the
  relevant statute, MCL 768.7a(2), actually required a consecutive sentence. The circuit
  court sua sponte amended its judgment of sentence to correct this error. However, in
  People v Comer, 500 Mich 278 (2017), we held that trial courts do not have authority to
  sua sponte amend an invalid sentence under MCR 6.429 or MCR 6.435. 1 Accordingly, in
  the instant case, the Court today vacates the circuit court’s amendment as impermissible
  under Comer.

        The dissent, in arguing against this result, raises and develops two arguments that

  1
    MCR 6.429(A) has since been amended, effective September 1, 2018, and now provides
  that “[t]he court may correct an invalid sentence, on its own initiative after giving the
  parties an opportunity to be heard,” as long as the correction “occur[s] within 6 months of
  the entry of the judgment of conviction and sentence.”
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the prosecutor has not addressed: (1) that the erroneously imposed concurrent sentence
was a mere clerical error that the circuit court could correct “on its own initiative” under
MCR 6.435(A); and (2) that, even if the circuit court lacked authority to amend the
judgment sua sponte, the prosecutor should be given another chance to file a motion to
amend the judgment because the circuit court’s amendment came “a mere 20 days” after
the original judgment was issued. But it is not our role to find and develop unpreserved
arguments on behalf of litigants. See Carducci v Regan, 230 US App DC 80, 86 (1983)
(Scalia, J.) (“The premise of our adversarial system is that appellate courts do not sit as
self-directed boards of legal inquiry and research, but essentially as arbiters of legal
questions presented and argued by the parties before them.”). For this reason, I would
decline to reach these issues and I concur in the Court’s order. 2

       ZAHRA, J. (dissenting).

       I respectfully dissent. Defendant pleaded no contest to receiving and concealing
stolen property between $1,000 and $20,000, MCL 750.535, as a fourth-offense habitual
offender, with an agreed upon cap on the minimum sentence of 24 months. The
presentence investigation report (PSIR) indicated that consecutive sentencing was
mandatory because defendant was on parole when he committed this offense. MCL
768.7a(2); see also People v Miles, 454 Mich 90, 99-100 (1997). At the sentencing
hearing on May 15, 2015, the trial court asked the parties whether they had reviewed the


2
  The dissent’s assertion that defendant did not preserve the Comer issue is puzzling. In
his application for leave to appeal, defendant argued that “[a] trial court may correct an
invalid sentence, but may not modify a sentence after it has been imposed except as
provided by law. MCR 6.429(A)[.]” In Comer, which was decided after defendant’s
application was filed, we addressed whether a trial court has the authority to correct an
invalid sentence on its own initiative after judgment on that sentence has entered. After
considering both MCR 6.435 (the general rule regarding a court’s ability to correct
mistakes in judgments and orders) and MCR 6.429 (the specific rule discussing the
court’s ability to correct an invalid sentence), we concluded “that the trial court’s
authority to correct an invalid sentence on its own initiative ends upon entry of the
judgment of sentence.” Comer, 500 Mich at 297. While defendant here sought
resentencing, our subsequent opinion in Comer makes it clear that the appropriate relief
in these circumstances is reinstatement of the original judgment of sentence. See id. at
301. Far from raising a new issue on defendant’s behalf, then, the majority merely grants
defendant the relief mandated by Comer for the error that he asserted—i.e., that his
“sentence was improperly changed from a concurrent sentence to a consecutive one by
way of a judgment of sentence dated 6-3-15.” The dissent, by contrast, raises new
theories and would grant relief that was not requested on an issue that was not even
briefed by the prosecutor on appeal.
                                                                                           3

PSIR. Responding to the question whether defense counsel had any changes, deletions or
corrections to the body of the report, he answered, “No, ma’am.”

       In accordance with the plea agreement, defendant was sentenced to a prison term
of 24 months to 15 years. The judgment of sentence filed on May 15, 2015 did not
contain a checkmark in the space provided for consecutive sentencing. That portion of
the judgment was left blank, and the form states, “If this item is not checked, the sentence
is concurrent.” Within 13 business days, the circuit court must have recognized its
mistake, and it sua sponte issued an amended order dated June 4, 2015, indicating that
defendant’s sentence had to be served consecutively to his current sentence.

       In People v Comer, 500 Mich 278, 297 (2017), this Court concluded that “MCR
6.429 authorizes either party to seek correction of an invalid sentence upon which
judgment has entered, but the rule does not authorize a trial court to do so sua sponte.”
When considering MCR 6.435 and MCR 6.429 together, we concluded “that the trial
court’s authority to correct an invalid sentence on its own initiative ends upon entry of
the judgment of sentence.” Comer, 500 Mich at 297.

        In this case, all outward appearances suggest a simple clerical mistake was made
in filling out the May 15, 2015 judgment of sentence. Unlike in Comer, in which the
parties did not contend that the failure to sentence defendant to lifetime electronic
monitoring was a clerical mistake, here all evidence points precisely to this being a mere
clerical mistake. The PSIR, which the attorneys approved and accepted, plainly indicated
that sentencing had to be consecutive. There is nothing in the record to suggest that
anyone ever disagreed with the notion that defendant’s new sentence was to be served
consecutively to his old one. Indeed, even the register of actions indicated that the May
15, 2015 judgment of sentence had provided for consecutive sentencing. Hence, the trial
court’s amended judgment of sentence merely fixed a “clerical mistake . . . arising from
oversight or omission,” which the trial court was allowed to correct on its own initiative
under MCR 6.435(A). Accordingly, I would simply deny defendant’s application.

       Further, it should be pointed out that the trial court fixed its mistake very early in
the process, a mere 20 days after the original judgment of sentence was entered. By
fixing its mistake so early, the trial court in practice arguably foreclosed any real
opportunity by the prosecution to seek correction of the May 15, 2015 judgment of
sentence. Had the trial court not acted sua sponte, a timely motion to correct the
judgment of sentence could have been filed under MCR 6.429(B). Defendant did not file
his application for leave to appeal until December 1, 2015. MCR 6.429(B)(3) states, “If
the defendant may only appeal by leave or fails to file a timely claim of appeal, a motion
to correct an invalid sentence may be filed within 6 months of entry of the judgment of
conviction and sentence.” In this case, given that the trial court issued its amended
judgment of sentence a mere 20 days after issuing the original judgment of sentence,
there was no reason for the prosecution to exercise its option to file a timely motion to
                                                                                         4

correct sentence. Therefore, alternatively, I would remand and indicate that the
prosecution shall be afforded the opportunity under the court rule to file a motion to
correct the invalid sentence, which, but for the trial court’s actions in promptly amending
the judgment of sentence, the prosecution could have filed pursuant to MCR 6.429(B)(3).

       Moreover, even assuming that the error is not clerical and that the trial court
foreclosed any chance for the prosecution to seek correction of the judgment of sentence
under MCR 6.429(B), I disagree with the majority’s chosen remedy to reinstate the very
sentence it properly concluded was invalid. Instead of reinstating an invalid sentence that
is predicated on an ostensibly invalid plea, I would conclude that the appropriate remedy
in this case is to “give the defendant the opportunity to elect to allow the plea and
sentence to stand or to withdraw the plea.” MCR 6.310(C); cf. People v Cobbs, 443
Mich 276 (1993). 3


3
  The concurring Justice’s statement is misguided and undermines the notion of equal
justice under law to each litigant. He maintains that “[f]ar from raising a new issue on
defendant’s behalf, then, the majority merely grants defendant the relief mandated by
Comer for the error that he asserted[.]” To avoid any mischaracterization of defendant’s
argument, the following represents defendant’s entire argument in both his application to
the Court of Appeals and his application to this Court:

              Defendant’s sentence was improperly changed from a concurrent
       sentence to a consecutive one by way of a judgment of sentence dated 6-3-
       15. See attached, both judgments. This was incorrect. Even where a court
       is required to impose a mandatory consecutive sentence (here, because Mr.
       Worthington was on parole at the time he committed the instant offense,
       MCL 76.8.7a [sic]), if such a sentence was imposed concurrently in error, it
       may only be corrected by full resentencing. A trial court may correct an
       invalid sentence, but may not modify a sentence after it has been imposed
       except as provided by law. MCR 6.429(A); People v Catanzarite, 211
       Mich App 573, 582 (1995); People v Miles, 454 Mich 90 (1997).

              In People v Thomas, 223 Mich App 9, 16 (1997), the Court of
       Appeals held that where a judge misperceives the law and imposes a
       concurrent sentence where the law requires a consecutive one, resentencing
       is the only appropriate way to correct the error. It noted that MCR
       6.429(A) allows for correction of sentences, but is silent as to the manner in
       which this must be done. Accordingly, the long-standing remedy of
       resentencing is the appropriate one. Further, due process requires a
       defendant to have the opportunity to have meaningful notice and
       opportunity to address the court if a previously imposed sentence is to be
       changed. Id. See also, People v Mapp, 224 Mich App 431 (1997) (same).
                                                                                       5




             For the above reasons, Mr. Worthington is entitled to resentencing.

        Thus, this Court here does not “merely grant[] defendant the relief mandated by
Comer for the error that he asserted[.]” Defendant sought to be resentenced. Defendant
will not be resentenced. Defendant certainly did not seek to “reinstate” the May 15, 2015
judgment of sentence. Nor is there any hint within defendant’s entire argument that
“when considering MCR 6.435 and MCR 6.429 together, . . . the trial court’s authority to
correct an invalid sentence on its own initiative ends upon entry of the judgment of
sentence.” Comer, 500 Mich at 297. Accordingly, it was this Court, in abeying the
instant case in light of the pending decision in Comer, that raised and developed the
theory that now grants defendant relief in this case. Simply put, this Court’s unanimous
decision to abey the instant case for Comer invited every Justice of this Court to engage
in a plenary review of the court rules being interpreted in Comer, particularly MCR
6.435. Having specifically directed the parties in Comer to address MCR 6.429 and
MCR 6.435, any Justice of this Court is permitted to examine the relevant court rules in
the cases that we abeyed for Comer, and in fact, I would suggest that we are obligated to
do so by our oaths of office. Last, the concurring Justice’s reliance on language from
then Judge Scalia’s opinion in Carducci v Regan, 230 US App DC 80 (1983), is so far
removed from the context of this case that it can only be explained as a curious but
fallacious appeal to authority.
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WILDER, J., joins the statement of ZAHRA, J.




                  I, Larry S. Royster, 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.
                  September 24, 2018
t0918
                                                                      Clerk
