                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     FOR PUBLICATION
                                                                     October 8, 2015
               Plaintiff-Appellee,

v                                                                    No. 318854
                                                                     St. Clair Circuit Court
JUSTIN TIMOTHY COMER,                                                LC No. 11-001804-FC

               Defendant-Appellant.


GLEICHER, P.J. (concurring).

       I concur with the result reached in the majority opinion only because I am compelled to
do so by People v Harris, 224 Mich App 597; 569 NW2d 525 (1997). In my view, Harris was
wrongly decided and should be overruled by our Supreme Court. Further, I believe that the
Supreme Court has signaled, albeit in obiter dictum, that the analysis set forth in Harris is deeply
flawed. Were it not for Harris, I would vacate the electronic monitoring provision from
defendant’s sentence.

        Resolution of this case hinges on an interpretation of two closely related court rules. The
first, MCR 6.429 sets forth two relevant subrules. Subrule (A) establishes that a trial court
possesses the authority to correct an invalid sentence. Subrule (B), titled “Time for Filing
Motion,” sets forth various time limits for filing a motion to correct an invalid sentence.
Subsection (B)(1) provides that “[a] motion to correct an invalid sentence may be filed before the
filing of a timely claim of appeal.” If a claim of appeal has already been filed, a motion to
correct an invalid sentence may be filed only in accordance with the procedure set forth in MCR
7.208(B), or the remand procedure set forth in MCR 7.211(C)(1).1 MCR 6.429(B)(2). If the
matter involves adefendant who may only appeal by leave (as here), a motion to correct an
invalid sentence must be filed “within 6 months of entry of the judgment of conviction and
sentence.” MCR 6.429(B)(3). When a defendant is no longer entitled to appeal by leave,



1
  MCR 7.208(B) provides that “[n]o later than 56 days after the commencement of the time for
filing the defendant-appellant’s brief” in the Court of Appeals, the defendant may file in the trial
court a motion to correct an invalid sentence. MCR 7.211(C)(1) addresses motions to remand
filed in the Court of Appeals “[w]ithin the time provided for filing the appellant’s brief.” Neither
rule applies here.


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“defendant may seek relief pursuant to the procedure set forth in subchapter 6.500.” MCR
6.429(B)(4).

        These procedures clearly contemplate that a court may correct an invalid sentence only
after a party has filed a motion seeking that relief. Although MCR 6.429(A) imbues a court with
the authority to correct an invalid sentence, MCR 6.429(B) describes in considerable detail the
process for correcting an invalid sentence. That process commences with the filing of a motion.
Justice STEPHEN MARKMAN reached the same conclusion when dissenting from an order denying
leave to appeal in People v Peck, 481 Mich 863 (2008). Joined by Justice CAVANAGH, Justice
MARKMAN wrote that MCR 6.429 “requires that a ‘motion’ be ‘filed’ by a ‘party’ before a trial
court may correct a sentence.” Id. at 867 n 1. No motion was filed in the case at bar.

        Furthermore, I believe that the Supreme Court’s opinion in People v Holder, 483 Mich
168; 767 NW2d 423 (2009), comes close to implicitly overruling Harris. The defendant in
Holder committed several crimes after receiving a parole discharge from prison. Id. at 169. The
trial court sentenced him for those crimes. Subsequently, the Department of Corrections notified
the defendant and the trial court that it had “cancelled” the defendant’s parole discharge. The
DOC asked the judge “to amend the defendant’s judgment of sentence to reflect that the sentence
imposed was to be served consecutively to the sentence for which defendant was on parole.” Id.
at 170. The judge complied with this request. Id. The Supreme Court held that “[b]ecause the
original judgment of sentence was valid when imposed, the sentencing judge had no authority to
modify it pursuant to MCR 6.429(A),” and vacated the amended sentence. Id. The Supreme
Court emphasized that notices sent by the DOC to trial courts “are merely advisory and
informational in nature,” and do not excuse compliance with “the relevant statutes and court
rules.” Id.

       Holder is distinguishable from this case, as the sentence in Holder was valid when
imposed while defendant’s sentence was not. However, in obiter dictum the Holder Court
observed:

               While the DOC certainly has an obligation to ensure that any sentence
       executed is free from errors, the department is not a party to the underlying
       criminal proceedings under either MCR 6.429 or MCR 6.435. As a result, we
       wish to reiterate that any notices sent from the DOC to the courts and parties
       regarding sentencing errors are merely informational, and any requests contained
       therein merely advisory. Any judge receiving such a notice must ascertain the
       nature of the claimed error, determine whether the error implicates a defendant’s
       sentence, and consider the curative action recommended by the DOC. It is
       imperative, however, that any corrections or modifications to a judgment of
       sentence must comply with the relevant statutes and court rules. Significantly, if
       the claimed error is substantive, the court may modify the sentence only “[a]fter
       giving the parties an opportunity to be heard” and if “it has not yet entered
       judgment in the case. . . .” MCR 6.435(B). Similarly, if the original judgment of
       sentence was valid when entered, MCR 6.429(A) controls and mandates that the
       court “may not modify a valid sentence after it has been imposed except as
       provided by law.” [Id. at 176-177 (emphasis added, alterations in original).]


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       Here, as in Holder, a letter from the DOC triggered the trial court’s correction of
defendant’s sentence. Here, as in Holder, the error was substantive rather than clerical. I
conclude, as the Supreme Court indicated in Holder, that the procedure for correcting a
substantive error is governed by MCR 6.435(B).

      MCR 6.435 empowers courts to correct “mistakes.” This court rule distinguishes
between two types of mistakes—“clerical” and “substantive”—as follows:

               (A) Clerical Mistakes. 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) Substantive Mistakes. 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.
       [Emphasis added.]


Because the omission of lifetime electronic monitoring from both judgments of sentence
constituted a substantive rather than a clerical mistake, were it not for Harris, I would hold that
the trial court lacked the authority to correct this mistake.

        According to the 1989 Staff Comment to MCR 6.435, subrule (A) permits a court to
correct “an inadvertent error or omission in the record, or in an order or judgment.” The purpose
of subrule (A) “is to make the lower court record and judgment accurately reflect what was done
and decided at the trial level.” Central Cartage Co v Fewless, 232 Mich App 517, 536; 591
NW2d 422 (1998) (discussing MCR 2.612[A], which is identical to MCR 6.435[A]).

        The staff comment explains that subrule (B), addressing “substantive mistakes,” “pertains
to mistakes relating not to the accuracy of the record, but rather, to the correctness of the
conclusions and decisions reflected in the record.” The comment continues, “[s]ubstantive
mistake refers to a conclusion or decision that is erroneous because it was based on a mistaken
belief in the facts or the applicable law.” MCR 6.435, 1989 Staff Comment. The comment
provides the following examples intended to “illustrate the distinction” between clerical and
substantive mistakes:

       A prison sentence entered on a judgment that is erroneous because the judge
       misspoke or the clerk made a typing error is correctable under subrule (A). A
       prison sentence entered on a judgment that is erroneous because the judge relied
       on mistaken facts (for example, confused codefendants) or made a mistake of law
       (for example, unintentionally imposed a sentence in violation of the Tanner rule2)


2
 The “Tanner rule” refers to the pre-legislative sentencing guideline rule that a defendant’s
minimum sentence could be no more than 2/3 his maximum sentence. See People v Tanner, 387
Mich 683; 199 NW2d 202 (1972).


                                                -3-
       is a substantive mistake and is correctable by the judge under subrule (B) until the
       judge signs the judgment, but not afterwards. [Id.]

        During defendant’s first two sentencing hearings, neither Judge Adair nor the prosecuting
attorney mentioned lifetime electronic monitoring. Most likely, this was because it remained
unclear whether lifetime electronic monitoring was required when a defendant’s CSC-I offense
did not involve a child under the age of 13. Brantley and King illustrate the disagreement
involving this legal question. In my view, Judge Adair (and the prosecutor) neglected to raise
the issue of lifetime monitoring because both were “laboring under a misconception of the law.”
See People v Whalen, 412 Mich 166, 170; 312 NW2d 638 (1981). Their misconception gave
rise to a substantive mistake requiring correction. Under MCR 6.435(B), that correction could
only occur before the court entered a judgment of sentence.

        Notably, in Harris, this Court failed to address MCR 6.435. I believe that properly
construed, MCR 6.435 governs the procedure for correcting mistakes that render a sentence
invalid. Although MCR 6.429 empowers a trial court to make corrections, MCR 6.435 imposes
limits on that authority. Because the correction of substantive mistakes must occur before entry
of the judgment of sentence, I believe that Judge West was foreclosed from adding lifetime
electronic monitoring as a term of defendant’s sentence.

       Finally, I believe that Judge West erred by attempting to circumvent MCR 6.435 by
withdrawing defendant’s guilty plea and forcing him to enter a renewed plea of guilty. A
defendant may move to withdraw his guilty plea within six months after sentence, and thereafter
only in accordance with the procedure set forth in MCR 6.500 et seq. MCR 6.310(C).
Defendant did not move to withdraw his guilty plea within six months, and never invoked the
procedures set forth in MCR 6.500 et seq. MCR 6.310(C) further provides:

        If the trial court determines that there was an error in the plea proceeding that
       would entitle the defendant to have the plea set aside, the court must give the
       advice or make the inquiries necessary to rectify the error and then give the
       defendant the opportunity to elect to allow the plea and sentence to stand or to
       withdraw the plea.”

In context, this provision of MCR 6.310(C) relates to the trial court’s determination of a motion
brought by a defendant to withdraw a guilty plea. MCR 6.310(E) allows a court to vacate a plea
on a prosecutor’s motion “if the defendant has failed to comply with the terms of a plea
agreement.” I have located no authority empowering a trial court to independently decide, years
after sentencing, that a defect in the plea proceeding required setting aside a guilty plea.
Moreover, in People v Strong, 213 Mich App 107, 112; 539 NW2d 736 (1995), this Court
emphasized that a “trial court may exercise its discretion to vacate an accepted plea only under
the parameters of the court rule.” Thus, in my view the trial court abused its discretion by
withdrawing defendant’s guilty plea and requiring him to re-plead, and did not restart the clock
under MCR 6.435(B).




                                               -4-
        Harris permits a trial court to substantively modify a defendant’s sentence without a
motion, and at any time. I believe that MCR 6.435 was intended to rein in a court’s authority to
alter even an invalid sentence, and urge the Supreme Court to consider this question.



                                                           /s/ Elizabeth L. Gleicher




                                              -5-
