Order                                                                       Michigan Supreme Court
                                                                                  Lansing, Michigan

  January 19, 2007                                                                   Clifford W. Taylor,
                                                                                              Chief Justice

  128034 (59)                                                                       Michael F. Cavanagh
                                                                                    Elizabeth A. Weaver
                                                                                           Marilyn Kelly
                                                                                      Maura D. Corrigan
  PEOPLE OF THE STATE OF MICHIGAN,                                                  Robert P. Young, Jr.
            Plaintiff-Appellee,                                                     Stephen J. Markman,
                                                                                                   Justices

  v       	                                              SC: 128034
                                                         COA: 250580
                                                         Muskegon CC: 02-047915-FC
  SANDY SEAN HOLT, JR.,

           Defendant-Appellant. 


  _________________________________________/

         On order of the Court, the motion to supplement the record is GRANTED.

        CORRIGAN, J., concurs and states as follows:

         I concur in the order granting the prosecution’s motion to supplement the record. I
  write separately to explain the reasons for granting the motion.

         This Court ordered oral argument on the application for leave to appeal to consider
  whether there was a violation of the 180-day rule, MCL 780.131, in this case in light of
  People v Williams, 475 Mich 245 (2006), and whether the time limitation set forth in
  MCL 780.131 is subject to waiver or extension. 477 Mich 860 (2006). The prosecution
  then moved to supplement the record to show that it did not receive written notice of
  defendant’s imprisonment by certified mail from the Department of Corrections, as
  required by MCL 780.131(1). Defendant argues that the motion should be denied
  because the prosecution waived the notice issue when it conceded in the trial court that it
  received notice of defendant’s incarceration from the district court on August 28, 2002. I
  disagree.

        While this case was in the lower courts, MCR 6.004(D) provided in relevant part:

        (D) Untried Charges Against State Prisoner.
              (1) The 180-Day Rule. Except for crimes exempted by MCL
        780.131(2); MSA 28.969(1)(2), the prosecutor must make a good faith
                                                                                          2

       effort to bring a criminal charge to trial within 180 days of either of the
       following:
              (a) the time from which the prosecutor knows that the person
       charged with the offense is incarcerated in a state prison or is detained in a
       local facility awaiting incarceration in a state prison, or
              (b) the time from which the Department of Corrections knows or has
       reason to know that a criminal charge is pending against a defendant
       incarcerated in a state prison or detained in a local facility awaiting
       incarceration in a state prison. [Emphasis added.]
Under this version of the court rule, the 180-day period commenced when the prosecutor
simply knew that defendant was incarcerated. In conceding that it had such notice, the
prosecution reasonably relied on the former court rule and stated that the 180-day period
commenced on August 28, 2002, the date it had received notice of defendant’s
incarceration from the district court.

      But as we recognized in Williams, supra at 259, the statutory trigger for
commencement of the 180-day period conflicts with the court rule. MCL 780.131(1)
provides, in pertinent part:

               Whenever the department of corrections receives notice that there is
       pending in this state any untried warrant, indictment, information, or
       complaint setting forth against any inmate of a correctional facility of this
       state a criminal offense for which a prison sentence might be imposed upon
       conviction, the inmate shall be brought to trial within 180 days after the
       department of corrections causes to be delivered to the prosecuting
       attorney of the county in which the warrant, indictment, information, or
       complaint is pending written notice of the place of imprisonment of the
       inmate and a request for final disposition of the warrant, indictment,
       information, or complaint. The request shall be accompanied by a
       statement setting forth the term of commitment under which the prisoner is
       being held, the time already served, the time remaining to be served on the
       sentence, the amount of good time or disciplinary credits earned, the time
       of parole eligibility of the prisoner, and any decisions of the parole board
       relating to the prisoner. The written notice and statement shall be delivered
       by certified mail. [Emphasis added.]
Thus, the 180-day period commences only after the Department of Corrections sends a
certified letter to the prosecutor giving notice of the inmate’s incarceration and a request
for final disposition of the charges. Williams, supra at 256. In Williams, supra at 259,
this Court held that the court rule was invalid to the extent that it improperly deviated
from the statutory language. The Williams opinion applies to all cases pending on appeal
                                                                                         3

in which the 180-day issue has been preserved. Id. Therefore, Williams applies to the
instant case.

       The prosecution’s concession of the notice issue did not amount to a waiver
because the prosecution did not know, and could not have known, at the time of the
concession that this Court would invalidate MCR 6.004(D) and enforce the notice
requirements listed in the 180-day statute. A party does not waive error that, because of a
change in the law, could not have been recognized until the party’s case was pending on
appeal. State v Munninger, 209 Ariz 473, 477 (Ariz App, 2005). Waiver requires “the
intentional relinquishment or abandonment of a known right.” People v Carter, 462
Mich 206, 215 (2000) (internal citations and quotation marks omitted). Here, the
prosecution did not intentionally abandon a known right. Under MCL 780.131(1), the
prosecution had a right to notice by certified mail from the Department of Corrections of
defendant’s incarceration and a request for final disposition of the pending charges. But
the prosecution did not know it had this right at the time because MCR 6.004(D)
improperly provided that the prosecutor need only have notice that the defendant was
incarcerated. Thus, the prosecution could not have used its concession of the notice issue
as an appellate parachute.1 The prosecution’s concession of the notice issue was based
on the notice of defendant’s incarceration it received from the district court. The
prosecution did not concede that it had received the statutorily required notice of
defendant’s incarceration from the Department of Corrections by certified mail. If the
prosecution had the benefit of the Williams opinion, it would not have conceded the
notice issue, because it would have known that the only valid notice under the 180-day
rule is the notice required by statute. Under the law that was in effect at the time,
however, the prosecution abandoned the notice issue without knowing that it had an
existing right to receive proper notice under MCL 780.131(1). This is not a waiver. “‘A
contrary holding would place an unreasonable burden on [the parties] to anticipate
unforeseen changes in the law and encourage fruitless objections in other situations
where [the parties] might hope that an established rule . . . would be changed on appeal.’”
People v Guzman, 40 Cal App 4th 691, 696 (1995) (Premo, Acting P.J., dissenting),
quoting People v Kitchens, 46 Cal 2d 260, 263 (1956).2

1
  I reject Justice Kelly’s contention that we are allowing the prosecution to “escape its
admissions and waivers because of ignorance of the law.” When the prosecution
conceded the notice issue, it was justifiably relying on the law as it existed at the time.
Contrary to Justice Kelly’s belief, the prosecution should not have ignored the language
of the then-valid court rule and the case law applying that rule.
2
 Justice Kelly argues that even if the 180-day period did not begin on August 28, 2002, it
must have begun at the time of defendant’s arraignment on September 12, 2002. But this
misses the point of the Williams opinion. As I have discussed, under Williams, supra at
256, the 180-day period commences under MCL 780.131 only after the Department of
Corrections sends a certified letter to the prosecutor giving notice of the inmate’s
                                                                                         4


        CAVANAGH, J., would deny the motion to supplement the record.

        KELLY, J., dissents and states as follows:

        I dissent from the majority’s decision to allow the prosecution to supplement the
record. It represents an eleventh-hour attempt to change the record and demonstrate that
plaintiff did not have notice of defendant’s incarceration more than 180 days before trial.
Earlier, the prosecution conceded that it had notice of defendant’s incarceration more
than 180 days before trial. Given this concession, it waived the issue.

      This Court ordered oral argument on whether to grant the application or take other
peremptory action pursuant to MCR 7.302(G)(1). Specifically, we ordered the parties to
address

        whether there was a violation of the 180-day rule, MCL 780.131,[3] in this
        case in light of People v Williams, 475 Mich 245 (2006), and whether the

incarceration and a request for final disposition of the charges. The prosecution had not
received such a letter from the Department of Corrections on September 12, 2002.
3
    MCL 780.131 provides:
                (1) Whenever the department of corrections receives notice that
        there is pending in this state any untried warrant, indictment, information,
        or complaint setting forth against any inmate of a correctional facility of
        this state a criminal offense for which a prison sentence might be imposed
        upon conviction, the inmate shall be brought to trial within 180 days after
        the department of corrections causes to be delivered to the prosecuting
        attorney of the county in which the warrant, indictment, information, or
        complaint is pending written notice of the place of imprisonment of the
        inmate and a request for final disposition of the warrant, indictment,
        information, or complaint. The request shall be accompanied by a statement
        setting forth the term of commitment under which the prisoner is being
        held, the time already served, the time remaining to be served on the
        sentence, the amount of good time or disciplinary credits earned, the time
        of parole eligibility of the prisoner, and any decisions of the parole board
        relating to the prisoner. The written notice and statement shall be delivered
        by certified mail.
              (2) This section does not apply to a warrant, indictment, information,
        or complaint arising from either of the following:

                (a) A criminal offense committed by an inmate of a state correctional
        facility while incarcerated in the correctional facility.
                                                                                           5

       time limitation set forth in MCL 780.131 is subject to waiver or extension
       for any reason, such as prosecutor good faith, mutual agreement of the
       parties, or time attributable to the defendant, including requests for
       adjournment. [People v Holt, 477 Mich 860 (2006).]
Later, instead of filing a supplemental brief, the prosecution filed a motion to permit it to
supplement the record or for a remand of the case to settle the record. The prosecution
claimed that it had never received written notice from the Department of Corrections.
The claim directly contradicted its past statements.

        On the first day of trial, May 21, 2003, defendant raised the issue of a 180-day-
rule violation and asked the trial court to dismiss the charges with prejudice. In response
to this motion, the prosecutor specifically stated that the 180 days began to run on August
28, 2002. The prosecution repeatedly stated that it had notice on that date. It also
indicated that, on August 30, 2002, it prepared a writ to cause defendant to be brought to
court from a state prison in Jackson. Defendant was arraigned on September 12, 2002.

        On the first day of trial, the court agreed with the prosecution’s starting date. It
ruled that the prosecution had notice on August 28, 2002.4 The prosecution agreed with
this assessment and never appealed from the determination. In fact, it never even argued
that the determination was erroneous. In his subsequent brief to the Court of Appeals and
in his application to this Court, defendant made note of the prosecution’s concession that
the 180 days began to run on August 28, 2002. Not only did the prosecution not object to
these statements, it accepted defendant’s statements of fact without challenging this
starting date.

        Given the prosecution’s repeated acceptance of the August 28, 2002, starting date,
it is too late now for it to advocate for some other date as the correct starting point. The
prosecution has waived the argument. “‘One who waives his rights under a rule may not
then seek appellate review of a claimed deprivation of those rights, for his waiver has
extinguished any error.’” People v Carter, 462 Mich 206, 215 (2000), quoting United
States v Griffin, 84 F3d 912, 924 (CA 7, 1996). Allowing the prosecution to change the
date in the course of this appeal would allow the creation of an appellate parachute.
Counsel may not harbor error in the trial court for use as a parachute to save the case in


               (b) A criminal offense committed by an inmate of a state
       correctional facility after the inmate has escaped from the correctional
       facility and before he or she has been returned to the custody of the
       department of corrections.
4
  Defendant had been arguing for an earlier starting date. He claimed that the count
should start from the date the prosecution received notice that defendant would be
extradited from incarceration in another state.
                                                                                                                6

the appellate courts. Carter, 462 Mich 214. In this case, if any error exists, it was
created by the prosecution’s advocacy for the August 28, 2002, starting date. Because of
this, the Court should not now allow the prosecution to change its position.

       Justice Corrigan argues that the prosecution did not waive this argument because it
did not know that the statutory language would control. I disagree. Although this Court
recently invalidated the former version of MCR 6.004(D) in part because it conflicted
with the language of MCL 780.131,5 the requirements of the statutory 180-day rule have
never changed. The language of the statute has not changed since its amendment in
1989. These requirements were always in existence, regardless of the language of MCR
6.004(D).

        Given that the prosecution is a sophisticated party, it should have known that it
was bound to follow the statutes enacted by the Legislature. The prosecution should be
bound to know the law. And it should not be allowed to escape its admissions and
waivers because of ignorance of the law. Contrary to Justice Corrigan’s contention, the
prosecution always knew that it had a right to receive notice pursuant to MCL 780.131.
Because the statute did not change, the prosecution’s advocacy for the August 28, 2002,
starting date waived any later argument for some other date. Therefore, I would deny the
prosecution’s motion.

       I would also note that, even if the prosecution is allowed to escape the August 28,
2002, starting date, it certainly had notice of defendant’s incarceration by the arraignment
on September 12, 2002. This date is more than 180 days before the start of trial on
May 21, 2003. Even giving the prosecution the benefit of this doubt, its motion to
supplement the record is untimely. Therefore, I must dissent from the majority’s decision
to grant the motion.




5
    Williams, 475 Mich 259.



                          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.
                          January 19, 2007                    _________________________________________
         t0116                                                                Clerk
