            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                         STATE OF MICHIGAN

                          COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                  UNPUBLISHED
                                                                  January 21, 2020
              Plaintiff-Appellee,

v                                                                 No. 346412
                                                                  Jackson Circuit Court
CHARLES DUANE FINCH,                                              LC No. 76-009004-FH

              Defendant-Appellant.


Before: SWARTZLE, P.J., and MARKEY and REDFORD, JJ.

PER CURIAM.

         Defendant appeals the judgment of sentence entered following resentencing for his 1977
convictions of first-degree felony murder, MCL 750.316(1)(b), and conspiracy to commit first-
degree murder, MCL 750.157a, offenses he committed when 16 years old. On May 11, 1977,
the trial court sentenced defendant to life without parole (LWOP) for both offenses. Because the
United States Supreme Court in Miller v Alabama, 567 US 460; 132 S Ct. 2455; 183 L Ed2d 407
(2012), held unconstitutional the imposition of mandatory LWOP sentences on juveniles, the
circuit court held a lengthy hearing on September 19, 2018. At the completion of this hearing
and after having had the benefit of closing argument from both the prosecution and defense, the
court stated:

              In taking all of those things into consideration, Mr. Finch, I am going to
       sentence you to 40 to 60 years in the department of corrections on both counts one
       and three. And you have the credit that you have.

       The prosecution interposed no objections to defendant’s resentencing on both counts. On
September 26, 2018, the circuit court entered its judgment of sentence imposing a term of 40 to
60 years’ incarceration with credit for 15,404 days on both counts.

       After entry of the sentence, the Michigan Department of Corrections (MDOC)
communicated with the sentencing court regarding resentencing defendant on the conspiracy
count. The circuit court then on its own initiative scheduled another resentencing hearing for
October 15, 2018. It held this hearing to address whether or not it had the authority to amend
defendant’s conspiracy sentence, which as a result of People v Jahner, 433 Mich 490; 446


                                              -1-
NW2d 151 (1989), had been converted from life without parole to a sentence of life
imprisonment with the possibility of parole. Following the hearing, the trial court issued an
opinion and order amending defendant’s judgment of sentence to a term of 40 to 60 years on
Count 1, felony murder; and life on Count 3, conspiracy to commit first-degree murder. For the
reasons stated herein, we affirm.

                     I. FACTUAL AND PROCEDURAL BACKGROUND

        Defendant’s convictions arose from a killing that took place in Jackson, Michigan, on
August 15, 1976. The victim’s girlfriend promised defendant and two of his friends $40,000 to
kill the victim, a person with whom they were acquainted. Defendant and his codefendants
entered the victim’s home and defendant struck him in the face with a wrench. They then bound
and gagged the victim. Defendant and one of his codefendants ransacked the home looking for
money. Defendant left the home before one of his codefendants beat the victim and then stabbed
him 37 times which resulted in the victim’s death. Defendant was tried, convicted, and
sentenced to mandatory LWOP for felony murder and conspiracy to commit first-degree murder.

        In Miller v Alabama, 567 US 460; 132 S Ct 2455; 183 L Ed 2d 407 (2012), and
Montgomery v Louisiana, 577 US ___; 136 S Ct 718; 193 L Ed 2d 599 (2016), the United States
Supreme Court held unconstitutional the imposition of mandatory LWOP sentences for juveniles
as violative of the Eighth Amendment’s ban on cruel and unusual punishment, and gave its
decisions retroactive application to all juvenile murderers serving LWOP sentences. In response
to the Miller decision, our Legislature enacted MCL 769.25 and 769.25a, which apply to the
sentencing of criminal defendants convicted of first-degree murder and felony murder who were
less than 18 years of age at the time they committed the sentencing offense. MCL 769.25(1).
The statute requires the prosecutor to file a motion if the prosecutor intends to seek resentencing
and the imposition of LWOP. MCL 769.25(3) through (6). If a motion is not filed, the
sentencing court must impose a maximum sentence of no more than 60 years with a minimum
sentence of “not less than 25 years or more than 40 years.” MCL 769.25(4) and (9).

        In this case, the prosecutor moved for resentencing defendant to LWOP. Defendant
opposed the motion and requested 25 to 60 years’ imprisonment with credit for time served and
accumulated disciplinary credits. Defendant argued that the Miller factors favored the
imposition of the sentence prescribed by MCL 769.25(9). On September 19, 2018, the
sentencing court conducted a Miller hearing. The prosecution argued for resentencing defendant
to LWOP. Defendant expressed regret for his involvement in the offenses and informed the
sentencing court that he asked the victim’s family’s forgiveness. He admitted that he hurt many
people. A representative of the victim’s family made a statement in the hearing that “ . . . our
consensus is that he be given an opportunity to work toward parole.” Both defense counsel and
the prosecution made Miller factor arguments. The sentencing court considered each Miller
factor and stated on the record that it would resentence defendant to 40 to 60 years’
imprisonment for both counts of conviction with credit for 15,404 days served. On
September 26, 2018, the sentencing court entered its judgment of sentence that imposed 40 to 60
years’ imprisonment for defendant’s first-degree felony murder conviction and his conspiracy
conviction.



                                                -2-
        Later the MDOC contacted the sentencing court regarding the new sentence imposed for
defendant’s conspiracy conviction and represented that the sentencing court should not have
resentenced defendant on that conviction because it believed that a conspiracy conviction was a
parolable offense for which Miller did not require resentencing. A writ of habeas corpus issued
on October 3, 2018, that required the MDOC to deliver defendant for resentencing. Defendant
filed a memorandum opposing resentencing on the grounds that the September 26, 2018
judgment of sentence had been validly entered, the court lacked authority to change the judgment
of sentence because no motion had been filed requesting such action, no clerical mistake had
been made to permit the court to change the judgment under MCR 6.435(A), and MCR 6.435(B)
only permitted a court’s correction if it had not yet entered judgment in the case. Further,
defendant argued that the sentencing court properly resentenced him for his conspiracy
conviction because MCL 769.25a required resentencing him for both his conviction of first-
degree felony murder and his conviction of conspiracy to commit that murder. Defendant
explained that he received mandatory LWOP sentences for both offenses which were
inextricably linked. He argued that, because he was sentenced originally to LWOP for both
offenses, the resentencing court could and did properly resentence him to valid sentences for
both offenses. Defendant asserted that to allow a nonparolable life sentence or a parolable life
sentence to stand would constitute a violation of the Eighth Amendment because he was a
juvenile offender entitled to a meaningful opportunity for release.1

        The sentencing court held a resentencing hearing on October 10, 2018, to address the
sentencing issue related to his conspiracy conviction. Defendant argued that the sentencing court
had entered a valid judgment of sentence with no clerical error that would permit modification of
defendant’s sentence. Defendant contended that the sentencing court lacked authority to change
defendant’s sentence and asserted that, if the prosecution objected to the judgment of sentence, it
could file an appeal. The prosecution countered that, for a conspiracy conviction, one could be
sentenced to life with the possibility of parole under Jahner. The prosecution asserted that such
sentence lacked eligibility for a Miller hearing or resentencing. The prosecution argued that the
sentencing court could revisit its ruling and amend the judgment of sentence to impose a life
sentence for that conviction.

       The sentencing court took the matter under advisement and later issued an opinion and
order on October 15, 2018, in which it opined that MCR 6.435 permitted it to reconsider,
modify, or correct a judgment of sentence. The sentencing court stated that, pursuant to Jahner,
the sentence it imposed for defendant’s conspiracy conviction “was invalid because that Count
was ineligible for resentencing pursuant to Miller and its progeny.” The sentencing court
ordered that defendant’s judgment of sentence be amended to reflect its ruling. On October 15,
2018, the sentencing court entered an amended judgment of sentence that changed defendant’s
sentence for his conspiracy conviction from a term of years to a life sentence.

                                 II. STANDARD OF REVIEW



1
  While not directly relevant to this Court’s decision, we note that defendant was released from
incarceration with the MDOC to parole status on September 4, 2019.


                                                -3-
       We review sentencing decisions for an abuse of discretion. See People v Milbourn, 435
Mich 630, 636; 461 NW2d 1 (1990); People v Steanhouse, 500 Mich 453, 471; 902 NW2d 327
(2017). We review de novo arguments involving the interpretation and application of statutes.
People v Waclawski, 286 Mich App 634, 645; 780 NW2d 321 (2009).

                                           III. ANALYSIS

       Defendant first argues that Michigan’s resentencing statute, MCL 769.25(2), required the
sentencing court to resentence him on his conspiracy conviction and erred when it revoked the
judgment of sentence entered on September 26, 2018. He argues further that the sentencing
court erred in sentencing him to a greater punishment on his conspiracy conviction than the
underlying murder conviction. Respecting these related claims of error, we disagree.

         Michigan’s conspiracy statute, MCL 750.157a, provides in pertinent part that:

                 Any person who conspires together with 1 or more persons to commit an
         offense prohibited by law, or to commit a legal act in an illegal manner is guilty
         of the crime of conspiracy punishable as provided herein:

                 (a) Except as provided in paragraphs (b), (c) and (d) if commission of the
         offense prohibited by law is punishable by imprisonment for 1 year or more, the
         person convicted under this section shall be punished by a penalty equal to that
         which could be imposed if he had been convicted of committing the crime he
         conspired to commit and in the discretion of the court an additional penalty of a
         fine of $10,000.00 may be imposed.


MCL 750.316 provides that anyone found guilty of first-degree murder “shall be punished by
imprisonment for life without eligibility for parole.”2 Additionally,

         the so-called “lifer law” provides that those convicted of the substantive crime of
         first-degree murder are not eligible for parole consideration:

                “A prisoner under sentence for life or for a term of years, other
                than prisoners sentenced for life for murder in the first
                degree . . . who has served 10 calendar years of the sentence is


2
    MCL 750.316 provides in relevant part:
         a person who commits any of the following is guilty of first degree murder and
         shall be punished by imprisonment for life without eligibility for parole:
                                                * * *
                  (b)      Murder committed in the perpetration of, or attempt to
         perpetrate, . . . robbery, . . . breaking and entering of a dwelling, home invasion in
         the first or second degree, larceny of any kind . . . .


                                                  -4-
               subject to the jurisdiction of the parole board and may be released
               on parole by the parole board . . . .” [Jahner, 433 Mich at 495-496,
               quoting former version of MCL 791.234(4)].

       In Miller, 567 US at 470, the United States Supreme Court held that “mandatory life-
without-parole sentences for juveniles violate the Eighth Amendment.” After Miller, juveniles
may still receive sentences of life without the possibility of parole. Id. at 480. However, before
imposing such a sentence, the trial court must “take into account how children are different, and
how those differences counsel against irrevocably sentencing them to a lifetime in prison.” Id.

        In response to Miller, our Legislature enacted MCL 769.25, which provides, in relevant
part:

                 (1) This section applies to a criminal defendant who was less than 18
        years of age at the time he or she committed an offense described in subsection
        (2) if either of the following circumstances exists:

                (a) The defendant is convicted of the offense on or after the effective date
        of the amendatory act that added this section [(March 4, 2014)].

                                                * * *

               (2) The prosecuting attorney may file a motion under this section to
        sentence a defendant described in subsection (1) to imprisonment for life without
        the possibility of parole if the individual is or was convicted of any of the
        following violations:

                                                * * *

               (b) A violation of . . . 750.316 . . . .

                                                * * *

                (d) Any violation of law involving the death of another person for which
        parole eligibility is expressly denied under state law.

                 (3) If the prosecuting attorney intends to seek a sentence of imprisonment
        for life without the possibility of parole for a case described in subsection (1)(a),
        the prosecuting attorney shall file the motion within 21 days after the defendant is
        convicted of that violation.

                                                * * *

                (9) If the court decides not to sentence the individual to imprisonment for
        life without parole eligibility, the court shall sentence the individual to a term of
        imprisonment for which the maximum term shall be not less than 60 years and the
        minimum term shall be not less than 25 years or more than 40 years.


                                                   -5-
        In Jahner, 433 Mich at 493, our Supreme Court considered whether persons sentenced to
life imprisonment for conspiracy to commit first-degree murder were eligible for consideration
for parole. It explained that, although being found guilty of conspiracy to commit first-degree
murder is an “extremely heinous offense,” it differed from being convicted of first-degree
murder. Id. at 498. The Court concluded: “Accordingly, the parole prohibition in the ‘lifer law’
which expressly applies to first-degree murder does not apply to the separate and distinct crime
of conspiracy to commit that offense.” Id. The Court ruled “that a person sentenced to life
imprisonment for conspiracy to commit first-degree murder is eligible for parole consideration”
and stated that its decision constituted a clarification of existing law entitled to retroactive
application. Id. at 504.

       At his original sentencing in 1977, the trial court imposed LWOP sentences upon
defendant for both the first-degree felony murder and conspiracy to commit first-degree murder
offenses. On September 26, 2018, the sentencing court resentenced defendant to 40 to 60 years’
imprisonment for both first-degree felony murder and conspiracy to commit first-degree murder.

        We must determine first whether defendant’s sentence for conspiracy is subject to MCL
769.25. The conspiracy statute, MCL 750.157a, is not one of the offenses listed in MCL
769.25(2). Therefore, the commission of a conspiracy offense, in and of itself, would not be
subject to MCL 769.25. However, pursuant to MCL 769.25(2)(d), the statute applies to “[a]ny
violation of law involving the death of another person for which parole eligibility is expressly
denied under state law.” In this case, defendant’s conspiracy offense concerned a “violation of
law involving the death of another person . . . .” The conspiracy he joined took action that
resulted in the death of another person. Thus, the first condition of MCL 769.25(2)(d) is met.

        We next consider the second condition, i.e., whether a defendant convicted of conspiracy
to commit first-degree murder is expressly denied parole eligibility under state law. Although
the trial court originally imposed a mandatory LWOP sentence upon defendant, after Jahner,
defendant became eligible for parole for his conviction of conspiracy to commit first-degree
murder. Jahner’s retroactive application modified defendant’s LWOP sentence for his
conspiracy conviction to a life with the possibility of parole sentence. Therefore, his sentence
for conspiracy to commit murder did not fall under MCL 769.25, and there is no relief to be had
under that statute. Nor is there relief to be had under Miller, which holds only that mandatory
sentences for juveniles of life without parole violate the Eighth Amendment.

        Following Jahner, the penalty for conspiracy to commit first-degree murder is a
mandatory life sentence with the possibility of parole. Because defendant is eligible for parole,
MCL 769.25 is not implicated. For the same reason, Miller is not implicated. The trial court
satisfied MCL 769.25 respecting defendant’s sentence for first-degree murder. Accordingly, no
error warrants relief. MCL 769.25 does not provide a basis to resentence defendant for the
conspiracy conviction, and we hold that the trial court did not error in refusing to resentence
defendant based on this proffered argument.

        Respecting the trial court’s decision not to resentence defendant for his conspiracy
conviction, defendant argues that the sentencing court improperly imposed greater punishment
for that offense than his underlying first-degree felony murder conviction. Defendant argues that
our Supreme Court, in People v Denio, 454 Mich 691, 712; 564 NW2d 13 (1997), held that the

                                               -6-
sentence on the conspiracy count must be equal to whatever penalty he ultimately received in
connection with the substantive crime that he conspired to commit. In Denio, however, the
Court explained that conspiracy “is a crime that is separate and distinct from the substantive
crime that is its object. Furthermore, the crime of conspiracy does not merge into the offense
committed in furtherance of the conspiracy” Id. (citations omitted). The Court held that separate
sentences could be imposed for the substantive crime and conspiracy to commit that offense. Id.
The Court did not hold that a defendant must be punished equally for the conspiracy and the
underlying offense.

       Moreover, defendant has presented no authority that prohibits the imposition of a
sentence for a conspiracy conviction more severe than the sentence for the underlying offense.
Therefore, the punishment set forth in MCL 750.157a applied. Accordingly, defendant’s
argument in this regard lacks merit.

      Defendant also argues that the trial court erred in amending his valid judgment entered
September 26, 2018. We disagree.

        This Court reviews de novo arguments involving the interpretation and application of
statutes and court rules. People v Comer, 500 Mich 278, 287; 901 NW2d 553 (2017). The same
legal principles governing the interpretation of statutes govern the interpretation of court rules.
Id.

        Two court rules, MCR 6.435 and MCR 6.429, provide sentencing courts authorization to
amend orders including judgments of sentence under specified circumstances. During 2017, our
Supreme Court addressed the interplay of these two rules. In Comer, 500 Mich at 292, our
Supreme Court agreed with this Court’s determination that the defendant’s sentence was invalid
because the trial court failed to impose lifetime electronic monitoring as statutorily required.
The Court considered whether the trial court could amend the defendant’s judgment of sentence
on its own initiative 19 months after judgment on the sentence had entered. Id. at 293. The
Court first analyzed MCR 6.435 which provides:

               (A) 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.

               (B) After giving the parties an opportunity to be heard, and provided it
       has not yet entered judgment in the case, the court may reconsider and modify,
       correct, or rescind any order it concludes was erroneous.

        The Court noted that subsection (A) did not apply because no clerical mistake had been
made. Id. The Court concluded that the trial court made a “substantive mistake, which is the
province of MCR 6.435(B).” Id. Our Supreme Court explained that a sentencing “court’s ability
to correct substantive mistakes under MCR 6.435(B) ends upon entry of the judgment.” Id. at
294.

       The Court then analyzed MCR 6.429(A) which then provided:


                                                -7-
       A motion to correct an invalid sentence may be filed by either party. 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.

        It concluded that the court rule authorizes correction of an invalid sentence upon either
party’s decision to file a motion to seek correction. Id. at 295. The Court explained that the rule
permitted a sentencing court to correct an invalid sentence but not modify a valid sentence. Id.
The Court stated that MCR 6.429(B) governs the process and timing for filing a motion by a
party. Id. The Court noted that MCR 6.429 “is conspicuously silent on the court’s authority to
correct an invalid sentence sua sponte.” Id. at 296. The Court considered MCR 6.429 in relation
to MCR 6.435(B) which it concluded provides the general rule that a trial court may correct
substantive sentencing mistakes only until judgment is entered. Our Supreme Court concluded
that MCR 6.429(A) required a party to timely move the sentencing court to correct an invalid
sentence upon which judgment had already entered, but the rule did not authorize a trial court to
do so sua sponte. Id. at 296-297. The Court clarified:

                In sum, when considering MCR 6.435 and MCR 6.429 together, we
       conclude that the trial court’s authority to correct an invalid sentence on its own
       initiative ends upon entry of the judgment of sentence. Thereafter, an invalid
       sentence may be corrected only upon the timely filing of a motion to correct an
       invalid sentence in accordance with MCR 6.429. [Id. at 297-298.]

The Court then remanded the case to the trial court to reinstate the original judgment of sentence.
Id. at 301.

        After our Supreme Court decided Comer, MCR 6.429 was amended, effective September
1, 2018, to authorize sentencing courts to sua sponte correct invalid sentences within six months
of entry. MCR 6.429 now provides:

                The court may correct an invalid sentence, on its own initiative after
       giving the parties an opportunity to be heard, or on motion by either party. But
       the court may not modify a valid sentence after it has been imposed except as
       provided by law. Any correction of an invalid sentence on the court’s own
       initiative must occur within 6 months of the entry of the judgment of conviction
       and sentence.

        In this case, after conducting the Miller hearing, the sentencing court entered its judgment
of sentence on September 26, 2018. It did so under the statutory authority set out in MCL
769.25 and 769.25a, but, as explained earlier, neither Miller nor any statute gave the sentencing
court the authority to resentence defendant on the conspiracy conviction. Thus, with respect to
the conspiracy conviction, the sentencing court’s September 26, 2018 order was invalid.

        The MDOC communicated with the trial court shortly thereafter regarding the invalidity
of resentencing defendant on his conspiracy conviction. The sentencing court ordered the parties
to appear at a hearing and defendant took the opportunity to file a memorandum advising the
sentencing court of his opinion that the judgment of sentence had been validly entered and that
the sentencing court lacked authority to change defendant’s sentence. The trial court entered its

                                                -8-
amended judgment of sentence on October 15, 2018. The trial court’s action at that time was
subject to the amended version of MCR 6.429(A) and it made its change to the judgment of
sentence within the 6-month period following entry of its invalid sentence. Under MCR
6.429(A), the sentencing court had authority to revisit and correct its previously entered invalid
judgment of sentence respecting defendant’s conspiracy conviction. Under the amended rule, the
prosecution did not have to file a motion to correct defendant’s sentence if the sentencing court
chose to sua sponte amend defendant’s sentence as it did in this case.           In so doing, the
sentencing court did not err because it had authority to amend or change defendant’s invalid
sentence after the judgment of sentence had been entered. The sentencing court’s resentencing
of defendant for his conspiracy conviction to a term of years resulted in an invalid sentence that
the sentencing court had authority to amend sua sponte under MCR 6.429(A) within six months
of entry of the invalid sentence. The sentencing court acted promptly and gave the parties an
opportunity to be heard and appropriately corrected defendant’s invalid sentence.

       Affirmed.

                                                            /s/ Brock A. Swartzle
                                                            /s/ Jane E. Markey
                                                            /s/ James Robert Redford




                                               -9-
