                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   January 17, 2017
               Plaintiff-Appellee,

v                                                                  No. 328890
                                                                   Calhoun Circuit Court
JOSEPH EDWARD-JARED ROTHWELL,                                      LC No. 2012-002654-FH

               Defendant-Appellant.


Before: WILDER, P.J., and BORRELLO and GLEICHER, JJ.

PER CURIAM.

        Defendant pled guilty to third-degree home invasion, MCL 750.110a(4) pursuant to a
plea agreement. As part of the plea agreement, defendant was to serve 18 months’ probation. In
exchange, the prosecution agreed to drop a second-degree home invasion charge and agreed that,
upon successful completion of probation, defendant’s felony third-degree home invasion
conviction would be reduced to a misdemeanor. Although defendant violated one of the terms of
probation, on September 10, 2014, the circuit court entered an order discharging defendant from
probation and indicating that defendant had successfully completed the conditions of probation.
The prosecution did not object to or appeal the order. Subsequently, in accord with the plea
agreement, defendant moved to reduce his felony third-degree home invasion to a misdemeanor.
The prosecution objected, claiming that defendant failed to successfully complete probation
because he had violated one of the terms. The circuit court agreed, and, in a July 27, 2015 order,
denied defendant’s motion to reduce his felony to a misdemeanor. After this Court denied
defendant’s application for leave to appeal, in lieu of granting leave, our Supreme Court
remanded to this Court for consideration as on leave granted. People v Rothwell, 499 Mich 958;
879 NW2d 877 (2016). For the reasons set forth in this opinion, we reverse the circuit court’s
July 27, 2015, order and remand for entry of an order granting defendant’s motion to reduce his
felony to a misdemeanor in accord with the terms of the plea agreement.

                                      I. BACKGROUND

        On the night of June 30, 2012, defendant broke into the home of his former girlfriend and
stole property. Defendant was charged with one count of second-degree home invasion and one
count of third-degree home invasion. At a plea hearing on April 9, 2013, defendant pleaded
guilty to the third-degree home invasion count, pursuant to a plea agreement in which the
second-degree home invasion count would be dismissed and defendant’s conviction would be

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reduced to a misdemeanor after he successfully completed probation. The parties outlined the
plea agreement on the record as follows:

               The Court: Now, [defense counsel], would you outline the nature and
       extent of the plea bargain please.

               [Defense Counsel]: Your Honor, my client will enter a plea of guilty to
       count two, five-year offense, home invasion in the third degree. In exchange for
       that the prosecutor’s office will dismiss count one. And they recommend to the
       court that my client be placed on probation and any jail which may be
       contemplated be deferred to the end of probation. After successful completion of
       probation the prosecution agrees that the offense with which my client would have
       a conviction would be reduced to a misdemeanor of entry without permission.

              With the regard to probation [sic] the prosecution and [defendant] have
       agreed that—or the prosecutor agreed that they will agree to a cap of no more
       than two years of probation. Although a lesser amount may be appropriate in the
       Court’s eye after the presentence investigation is done.

               The Court: Is that your understanding, [prosecutor]?

                [Prosecutor]: It is, your Honor. I would add that there are two terms of
       probation the people are requesting specifically which include payments of
       restitution and no contact with the victims of this case.

               The Court: [Defense counsel].

               [Defense Counsel]: Agreed. [Emphasis added.]


       At a sentencing hearing on May 17, 2013, defendant was sentenced to 18 months’
probation. As part of the terms of probation, the trial court ordered defendant “to have no
contact at all with [the victim or her parents] . . . either directly or through another person or be
within 500 feet of their residence, school, or place of employment while you’re on probation.”
In imposing the sentence, the trial court stated:

             Upon successful completion of probation this charge may be reduced to a
       misdemeanor if the motion is filed and there’s no objection by the prosecutor that
       would be justifiably used to deny your request.


      Defense counsel sought to clarify the procedure for reducing defendant’s conviction to a
misdemeanor:

                [Defense Counsel]: We talked in terms, he may petition and may be
       granted. The plea agreement specifically says upon completion of probation, then
       it will be reduced to a misdemeanor.


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                  The Court: If it is a stipulation that is submitted, [defense counsel], it
          certainly will be considered as stuff [sic].


        Before his probation ended, on April 4, 2014, defendant violated one of the terms of
probation when he attempted to contact the victim using a false Facebook account. Defendant
was sentenced on April 7, 2014, to continued probation with the additional terms that he (1)
complete sex offender treatment or other treatment when referred by the field agent; and (2)
serve 4 days in jail with credit for 4 days served. Nothing in the record presented to this Court
gives rise to a finding that the prosecutor raised the issue of the reduction of the charge being
nullified by defendant’s probation violation.

       On September 5, 2014, Probation Officer Nina Garza moved for defendant to be
discharged from probation. The motion stated:

                 The defendant has paid his Court ordered assessments in full and
          maintains compliance with special and standard terms of probation. [Defendant]
          has also completed sex offender treatment and has been crime free. It is
          recommended he be successfully discharged at this time.


       The circuit court approved the order and discharged defendant from probation on
September 10, 2014, indicating in the order that the trial court found “that all conditions of
probation” were “successfully completed.” The prosecution neither objected to nor appealed the
order.

        Thereafter, on June 1, 2015, defendant filed a motion to reduce his felony conviction to a
misdemeanor pursuant to the terms of the plea agreement.1 The prosecution objected. At a
motion hearing, defendant argued that the terms of the plea agreement entitled him to have his
felony conviction reduced to a misdemeanor because he successfully completed probation.
Defendant argued that the circuit court’s September 10, 2014, order discharged him from
probation and indicated that he successfully completed probation. Defendant further argued that
he was discharged from probation early, being discharged in September rather than December;
he did not have his probation extended; he apparently completed all probation requirements and
paid all financial assessments; Officer Garza indicated in her letter that defendant complied with
the probation terms and successfully completed probation; and that while he had a probation
violation, he was never resentenced and his probation was not revoked. Defendant argued that
successful completion of probation requires substantial compliance, not perfection; that
defendant substantially complied with the terms of probation; and that defendant’s single
probation violation did not disqualify him from receiving the benefit of his plea bargain because
he was never off of probation.




1
    The case was reassigned to a different trial judge apparently after the former judge retired.


                                                   -3-
       In response, the prosecution argued that defendant failed to successfully complete
probation because he had violated a term of probation before being discharged. Thus, the plea
agreement did not require the circuit court to reduce the felony to a misdemeanor.

       The circuit court denied defendant’s motion to reduce the conviction to a misdemeanor.
In denying the motion, the trial court stated:

              Well, I don’t think the issue revolves around a reneging of the plea
       agreement whatsoever.         It revolves around the definition of successful
       completion. And, in fact, the record does reflect that the defendant was subject to
       a probation violation proceeding for having contact with the victim in this case
       while on probation in violation of the specific term thereof. And was sentenced to
       four days in jail with credit for four days with an added term of completion of sex
       offender treatment.

              While the file indicates that the terms of probation were successfully
       completed and that the defendant was discharged from probation and may have
       been early. I don’t—I didn’t—I haven’t computed the time. I’m not disputing,
       [defense counsel]. What that means, to this Court as least [sic], is that probation
       did not end up being revoked and the defendant being resentenced on the
       additional charge—on the initial charge rather. That the probation simply ended.

               I have a hard time contemplating that a violation of so important a term as
       to not have contact with the victim is a successful performance of probation. And
       it seems to me that is very central to the whole idea of probation that the
       defendant not have contact with the victim and that he be held in strict compliance
       with that. So, while he ended up being discharged from probation without it
       being revoked, I don’t count it as a successful completion. And the motion for the
       reduction to a misdemeanor is therefore denied.

        On August 17, 2015, defendant filed an application for leave to appeal with this Court
and this Court denied the application.2 Defendant then filed an application for leave to appeal in
the Michigan Supreme Court and, in lieu of granting leave to appeal, on June 22, 2016, our
Supreme Court remanded the matter to this Court for consideration as on leave granted.
Rothwell, 499 Mich at 958.

                                         II. ANALYSIS

        On appeal, defendant argues that the circuit court erred in denying his motion to reduce
his conviction from a felony to a misdemeanor, claiming various grounds on which the circuit
court erred.



2
  People v Rothwell, unpublished order of the Court of Appeals, entered December 7, 2015
(Docket No. 328890).


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        Resolution of this appeal requires that we interpret and apply terms of a plea agreement.
“[C]ontractual analogies may be applied in the context of a plea agreement if to do so would not
subvert the ends of justice.” People v Blanton, ___ Mich App ___, ___; ___ NW2d ___ (Docket
No. 328690, issued August 30, 2016); slip op at 9 (quotation marks and citation omitted).
Contract interpretation, “including whether the language of a contract is ambiguous and requires
resolution by the trier of fact,” presents a question of law that we review de novo.
DaimlerChrysler Corp v G Tech Prof Staffing, Inc, 260 Mich App 183, 184-185; 678 NW2d 647
(2003).

        In this case, the issue raised by the parties is whether defendant successfully completed
his probation. Based on Judge Kinsley’s order we find that defendant successfully completed
probation. The parties in this case freely entered into a plea agreement wherein the prosecution
agreed, inter alia, that defendant’s felony conviction would be reduced to a misdemeanor upon
defendant’s successful completion of probation. The probation officer moved for defendant to
be discharged from probation, and that motion was granted by Judge Kingsley. In his order
entered September 10, 2014, which the prosecution neither objected to nor appealed, Judge
Kingsley discharged defendant from probation and specifically indicated in the order that
defendant had successfully completed the conditions of probation. “A court speaks through
written judgments and orders[.]” People v Jones, 203 Mich App 74, 82; 512 NW2d 26 (1993).
By entering his September 10, 2014 order, Judge Kingsley “concluded as a matter of law” that
defendant had “successfully completed” “all conditions of probation[.]” See People v Sessions,
474 Mich 1120; 712 NW2d 718 (2006). “The prosecutor did not seek leave to appeal that order
pursuant to MCR 7.203(B)(1) and (E), and MCL 770.12(2), and may not collaterally attack that
order in this case.” Id.

       We therefore hold that once the circuit court successfully discharged defendant from
probation, defendant successfully completed probation and was entitled to have his felony
conviction reduced to a misdemeanor. The circuit court erred in holding otherwise. Remand for
entry of an order granting defendant’s motion and reducing his felony to a misdemeanor is
therefore appropriate.3

       We reverse the circuit court’s July 27, 2015, order and remand for further proceedings
consistent with this opinion. We do not retain jurisdiction.



                                                           /s/ Kurtis T. Wilder
                                                           /s/ Stephen L. Borrello
                                                           /s/ Elizabeth L. Gleicher




3
 Given our conclusion, we need not address defendant’s argument that the circuit court violated
MCR 2.613(B) and (C).


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