            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PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED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 24, 2019
               Plaintiff-Appellee,

v                                                                   No. 336815
                                                                    Macomb Circuit Court
RONALD SCOTT,                                                       LC No. 2014-003902-FC

               Defendant-Appellant.


Before: BOONSTRA, P.J., and SAWYER and TUKEL, JJ.

PER CURIAM.

        Defendant appeals as of right his jury trial convictions of two counts of first-degree
criminal sexual conduct, MCL 750.520b(1)(e) (sexual penetration while armed with a weapon).
Defendant was sentenced as a second habitual offender, MCL 769.10, to two consecutive terms
of 356 to 660 months’ imprisonment. Because the trial court had been divested of jurisdiction to
hear defendant’s trial, we vacate defendant’s convictions and sentences and remand for a new
trial.

       In a pretrial ruling, the trial court ruled other-acts evidence inadmissible. The
prosecution filed an interlocutory appeal, and in an unpublished opinion, this Court reversed that
decision and remanded for further proceedings. People v Scott, unpublished per curiam opinion
of the Court of Appeals, issued September 20, 2016 (Docket No. 331512), p 3. On November
14, 2016, defendant filed a timely application for leave to appeal to the Michigan Supreme
Court, which ultimately was denied. People v Scott, 500 Mich 935 (2017). Before the denial of
defendant’s application, however, on November 15, 2016, defendant’s trial began. Defendant
contends that court rules divested the trial court of subject-matter jurisdiction during the
pendency of defendant’s application for leave to appeal to the Michigan Supreme Court, and
accordingly, that he is entitled to a new trial. We agree.

        As a preliminary matter, the prosecution contends that this issue is unpreserved, and thus,
should be limited to review for plain error affecting defendant’s substantial rights. However,
“[j]urisdictional defects may be raised at any time,” People v Martinez, 211 Mich App 147, 149;
535 NW2d 236 (1995), “even if raised for the first time on appeal,” Smith v Smith, 218 Mich
App 727, 730; 555 NW2d 271 (1996). Accordingly, “[w]hether a court has subject-matter
jurisdiction is a question of law reviewed de novo.” People v Washington, 321 Mich App 276,
284 n 5; 908 NW2d 924 (2017) (quotation marks and citation omitted). This Court also reviews
de novo the interpretation and application of court rules. Id. at 282.

       MCR 7.215(F)(1)(a) provides:

       (F) Execution and Enforcement.

       (1) Routine Issuance. Unless otherwise ordered by the Court of Appeals or the
       Supreme Court or as otherwise provided by these rules,

           (a) the Court of Appeals judgment is effective after the expiration of the time
           for filing an application for leave to appeal to the Supreme Court, or, if such
           an application is filed, after the disposition of the case by the Supreme
           Court[.]

Thus, to determine when a Court of Appeals judgement would become effective, one must
determine the deadline for filing an application for leave to appeal to the Supreme Court. MCR
7.305(C) provides, in pertinent part:

       (6) Decisions Remanding for Further Proceedings. If the decision of the Court of
       Appeals remands the case to a lower court for further proceedings, an application
       for leave to appeal may be filed within . . . 56 days in criminal cases, after the date
       of

           (a) the Court of Appeals order or opinion remanding the case[.]

                                              * * *

       (7) Effect of Appeal on Decision Remanding Case. If a party appeals a decision
       that remands for further proceedings as provided in subrule (C)(5)(a),[1] the
       following provisions apply:

           (a) If the Court of Appeals decision is a judgment under MCR 7.215(E)(1), an
           application for leave to appeal stays proceedings on remand unless the Court
           of Appeals or the Supreme court orders otherwise.




1
  We note that the reference to subsection (C)(5)(a) appears to be a clerical error. First,
subsection (C)(5)(a) does not exist. Second, the substance of subsection (C)(7) is entirely related
to subsection (C)(6)(a). Indeed, subsection (C)(6)(a) deals solely with orders remanding from
this Court, and subsection (C)(7) is entitled “Effect of Appeal on Decision Remanding Case.”
Thus, the rule in subsection (C)(7) should be read to refer to “subrule (C)(6)(a).”


                                                -2-
An opinion of this Court constitutes a judgment where it “disposes of an original action or an
appeal, whether taken as of right, by leave granted, or by order in lieu of leave being granted.”
MCR 7.215(E)(1). Neither this Court nor the Supreme Court ordered that the proceedings not be
stayed on remand. Thus, as this Court has held, a defendant’s timely application for leave to
appeal a judgment of this Court serves “to stay the proceedings on remand and divest[] the trial
court of jurisdiction during the pendency of the application.” Washington, 321 Mich App at 285
(emphasis added), citing People v Swafford, 483 Mich 1, 6 n 5; 762 NW2d 902 (2009).

        The parties do not dispute that the September 20, 2016 unpublished opinion of this Court
constituted a judgment within the meaning of MCR 7.215(E)(1), as the opinion resolved the
other-acts evidence issue and disposed of the prosecution’s interlocutory appeal. The
prosecution also concedes that defendant had 56 days, or until November 15, 2016, to file his
application for leave to appeal to the Supreme Court and that defendant filed his application on
November 14, 2016. Nevertheless, the prosecution contends that defendant’s application failed
to effectuate a stay of proceedings because the application was not otherwise in compliance with
other court rules. We disagree.

        The prosecution relies upon MCR 7.305(A), which provides that in order to apply for
leave to appeal, a party must file, among other things, “proof that a copy of the application was
served on all other parties, and that a notice of the filing of the application was served on the
clerks of the Court of Appeals and the trial court or tribunal.” MCR 7.305(A)(3). The
prosecution contends that neither it nor the Court received notice of defendant’s application for
leave to appeal until November 17, 2016 (when defendant’s trial already was underway), and
thus that defendant’s application was untimely and failed to effectuate a stay of proceedings.
The argument is not persuasive because nothing in the court rule provides a deadline by which a
proof of service must be received by the interested parties. Instead, the court rule clearly
requires that a proof of service must be filed at the Supreme Court, along with the application. 2
Presumably, the failure to comply with any of the requirements in MCR 7.305(A)(1)-(4) would
result in a defective application. However, the record here shows that on November 14, 2014,
along with his application for leave to appeal, defendant did, in fact, file a proof of service which
showed that he mailed copies of his application to this Court, to the prosecution, and to the trial
court. Thus, the requirements of MCR 7.305(A) were satisfied. Moreover, the prosecution
provides no authority to suggest that this Court may question the procedural “effectiveness” of
an application for leave to appeal to the Michigan Supreme Court, particularly where the
Supreme Court deemed the application satisfactory by accepting it and denying it because it
simply was not persuaded that the questions presented should be reviewed—not because the
application was somehow procedurally defective. See Scott, 500 Mich at 935.




2
  Indeed, as noted, infra, defendant served the parties via mail, as permitted under MCR
2.107(C)(3). MCR 2.107(C)(3) further states, “Service by mail is complete at the time of
mailing.” Thus, when a recipient actually receives the mailing is not pertinent to determining
when service was completed.


                                                -3-
       The prosecution also argues that defendant’s appellate counsel waived review of the issue
and harbored error as an appellate parachute by failing to properly inform defendant’s trial
counsel, the prosecution, or the trial court that an application for leave to appeal had been filed
and the accompanying jurisdictional issue. Indeed, the facts of this case are peculiar, and
defendant’s appellate counsel could have avoided this issue entirely by clearly and expeditiously
communicating with the parties and with the trial court.3 However, defense counsel’s conduct,
even if deemed egregious, is not dispositive of the issue. That is because “[p]arties may not
waive or stipulate subject-matter jurisdiction.” Redding v Redding, 214 Mich App 639, 643; 543
NW2d 75 (1995). Thus, the prosecution’s argument in this regard lacks merit.

        Therefore, it is clear that under MCR 7.305(C)(7)(a), the application for leave to appeal
to the Supreme Court automatically stayed the proceedings on remand, and the trial court
consequently lacked jurisdiction to proceed with defendant’s trial. Although the Michigan
Supreme Court eventually denied defendant’s application for leave to appeal, thereby leaving
this Court’s prior ruling in place allowing the admission of the other-acts evidence, which results
in any new trial also being subject to the exact same ruling that was utilized in defendant’s old
trial, we nevertheless cannot let the result of the trial stand. The lack of jurisdiction is not a mere
procedural error or an error susceptible to a harmless-error analysis. See Washington, 321 Mich
App at 285 (stating that a court’s lack of jurisdiction is “not merely procedural error”); Usitalo v
Landon, 299 Mich App 222, 228; 829 NW2d 359 (2012) (“[A] proven lack of subject-matter
jurisdiction renders a judgment void.”); Yee v Shiawassee Co Bd of Commr’s, 251 Mich App
379, 399; 651 NW2d 756 (2002) (“[W]ant of subject-matter jurisdiction is so serious a defect in
the proceedings that the trial court was duty-bound to dismiss [the] suit . . . .”). Indeed,

       [t]he term jurisdiction refers to the power of a court to act and the authority a
       court has to hear and determine a case. Jurisdiction of the subject matter of a
       judicial proceeding is an absolute requirement. When a court is without
       jurisdiction of the subject matter, its acts and proceedings are of no force and
       validity; they are a mere nullity and are void. [Washington, 321 Mich App at 285
       (quotation marks and citations omitted).]

Thus, the trial court lacked jurisdiction to conduct proceedings during the pendency of
defendant’s application for leave to appeal, and thus defendant’s trial and the resulting judgment
of sentence “lack force and authority and are considered void.” Id.

       Because the trial court lacked subject-matter jurisdiction when it presided over
defendant’s trial, the resulting proceedings and judgment of sentence are null and void, and
defendant is entitled to a new trial. Because we are remanding for a new trial, we need not reach



3
  We note, however, it cannot be said that the trial court completely lacked notice of defendant’s
application for leave to appeal. The trial judge himself appointed appellate counsel for defendant
to perfect the appeal to the Supreme Court. In the order appointing counsel, the trial court
instructed the appellate attorney “TO FILE LEAVE TO THE MICHIGAN SUPREME COURT
AND TO SEEK A STAY OF PROCEEDINGS.” (Emphasis added.)


                                                 -4-
the other issues raised by defendant.

        We vacate defendant’s convictions and sentences and remand for a new trial. We do not
retain jurisdiction.

                                                         /s/ Mark T. Boonstra
                                                         /s/ Jonathan Tukel




                                             -5-
