20230221_C356217_45_356217Oc.Opn.Pdf ( 2023 )

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
February 21, 2023
Plaintiff-Appellee,
V No. 356217
Calhoun Circuit Court
JAMES EDWARD LOCKMILLER, LC No. 2017-003699-FH
Defendant-Appellant.
ON REMAND
Before: MURRAY, P.J., and SERVITTO and O’BRIEN, JJ.
MURRAY, P.J. (concurring).
I concur with the majority that defendant has not established plain error in the trial court’s
imposition of the statutorily mandated lifetime electronic monitoring for his CSC-II conviction.
See MCL 750.520c(2)(b) and MCL 750.520n(1). However, I also believe People v Hallak, 310
Mich App 555, 566-581; 873 NW2d 811 (2015), rev’d in part on other grounds 499 Mich 879(2016), precludes defendant’s arguments on the merits.
In Hallak, this Court addressed four issues: (1) whether defendant’s conviction was
supported by sufficient evidence, (2) whether the judicial fact-finding for purposes of scoring his
guidelines was unconstitutional, (3) whether his mandatory sentence of lifetime electronic
monitoring was cruel or unusual punishment or a violation of his right against unreasonable search
and seizures, and (4) whether defendant’s sentence was in part precluded by double jeopardy.
Hallak, 310 Mich App at 560. On defendant’s application for leave to appeal, the Supreme Court
reversed the sentencing issue based on its recent decision in People v Lockridge, 498 Mich 358,
399; 870 NW2d 502 (2015), which held that the sentencing guidelines are advisory. See Hallak,
499 Mich at 879-880. The sentencing guideline issue in our Hallak decision was based on
application of the then mandatory guidelines that determined the range for the length of
defendant’s sentence. In addressing that sentencing issue, we acknowledged that the outcome of
Lockridge could impact our decision but that binding Court of Appeals precedent required
affirmance. Hallak, 310 Mich App at 566 and n 5. Because Lockridge did in fact change that
legal landscape, the Hallak order reversed defendant’s sentence of 57 to 180 months for the CSC–
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II conviction, 85 to 180 months for the CSC–III conviction involving another victim, and 16 to 24
months for each CSC–IV conviction, Hallak, 310 Mich App at 562-563, and remanded for the trial
court to exercise its discretion on the length of defendant’s sentence. Hallak, 499 Mich at 879-
880. Leave to appeal was denied “[i]n all other respects.” Id.
The mandatory imposition of lifetime electronic monitoring was simply not impacted by
Lockridge, and nothing in the Hallak Supreme Court order indicates that anything other than
defendant’s sentence to prison was vacated and required reconsideration under Lockridge. Indeed,
although the Court in People v Cole, 491 Mich 325, 336; 817 NW2d 497 (2012), held that lifetime
electronic monitoring was a part of the sentence, it also recognized that the statute “indicates that
the Legislature intended that lifetime electronic monitoring would itself be a penalty, in addition
to the term of imprisonment imposed by the court.” The separate penalty of lifetime electronic
monitoring is mandatory, and its imposition would not be altered by a remand for a review of
defendant’s term of imprisonment.
Thus, this Court’s Hallak decision on lifetime electronic monitoring remains binding
precedent and precludes relief to defendant. And, even if it were not still binding, I would adopt
in full the reasoning in Hallak and hold that the imposition of lifetime electronic monitoring for a
defendant convicted of CSC-II does not violate our state constitutional prohibition of cruel or
unusual punishments, nor did it constitute an unreasonable search and seizure.
/s/ Christopher M. Murray
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