People of Michigan v. Jamie Andrew Vanklaveren ( 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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
December 14, 2023
Plaintiff-Appellee,
v No. 361017
Kent Circuit Court
JAMIE ANDREW VANKLAVEREN, LC No. 07-003353-FC
07-003354-FC
07-003356-FC
Defendant-Appellant.
Before: FEENEY, P.J., and RICK and HOOD, JJ.
PER CURIAM.
Defendant appeals by delayed leave granted from an order of the circuit court denying his
motion for relief from judgment under MCR 6.508(D). We affirm.
In 2008, defendant was convicted of seven counts of first-degree criminal sexual conduct
(CSC-I), MCL 750.520b(1)(a) (person under 13 years old) and MCL 750.520b(1)(b) (person 13
to 15 years old and member of same household); four counts of second-degree criminal sexual
conduct (CSC-II), MCL 750.520c(1)(a); four counts of third-degree criminal sexual conduct
(CSC-III), MCL 750.520d(1)(a); and one count of fourth-degree criminal sexual conduct (CSC-
IV), MCL 750.520e(1)(a). In 2008, Kent Circuit Court Judge George Buth sentenced defendant
to terms of 25 to 50 years’ imprisonment for five of the CSC-I convictions. The trial court
sentenced defendant consecutively for these counts such that defendant would serve a minimum
of 75 years’ imprisonment for CSC-I. The trial court sentenced defendant to 225 months to 50
years’ imprisonment to be served concurrently for the two remaining CSC-I convictions. The trial
court also sentenced defendant to 5 to 15 years’ imprisonment for each of the CSC-II and CSC-III
convictions to run concurrently. Finally, the trial court sentenced defendant to time served for the
CSC-IV conviction.
Defendant took a direct appeal following his convictions, raising various issues. This Court
rejected defendant’s arguments and affirmed. People v VanKlaveren, unpublished per curiam
opinion of the Court Appeals (Docket No. 286683, issued 2/2/2010). An application for leave to
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appeal to the Michigan Supreme Court and a petition for habeas relief in the federal district were
similarly unsuccessful.
More than ten years later, in 2020, defendant moved for relief from judgment, arguing that
his consecutive sentences on the CSC-I convictions were invalid. The trial court denied this
motion. Defendant moved for reconsideration and for an extension of time to assess adding a claim
of ineffective assistance of trial and appellate counsel. The trial court granted his motion for
reconsideration. In 2021, defendant filed an amended motion for relief from judgment, again
raising the challenge to the consecutive sentences as well as the ineffective assistance of counsel
argument. The trial court again rejected defendant’s motion.
Defendant first argues that the trial court erred in denying his motion for relief from
judgment because the trial court lacked the authority to impose consecutive sentences for the CSC-
I convictions. We disagree.
MCR 6.508(D) restricts the trial court’s ability to grant relief from judgment in a criminal
case. That rule provides in relevant part as follows:
The defendant has the burden of establishing entitlement to the relief
requested. The court may not grant relief to the defendant if the motion
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(3) alleges grounds for relief, other than jurisdictional defects, which could
have been raised on appeal from the conviction and sentence or in a prior motion
under this subchapter, unless the defendant demonstrates
(a) good cause for failure to raise such grounds on appeal or in the prior
motion, and
(b) actual prejudice from the alleged irregularities that support the claim for
relief.
In this case, defendant could have raised the issue whether he was properly subject to consecutive
sentences both at the time of his sentencing as well as in his direct appeal following conviction
and sentencing. He did not.
Defendant argues that he could not have raised the issue previously because he was not
entitled to relief until this Court announced a change in law in People v Bailey, 310 Mich App 703;
873 NW2d 855 (2015). While both parties agree that Bailey represents a change in law, we do not
agree. Bailey did not announce a change in law that provided good cause why defendant could
not have raised his challenge in his original appeal.
The only change in law present in this case is the Legislature’s amendment to MCL
750.520b adding subsection (3), which reads: “The court may order a term of imprisonment
imposed under this section to be served consecutively to any term of imprisonment imposed for
any other criminal offense arising from the same transaction.” See 2006 PA 169, effective August
28, 2006 (i.e., before defendant’s conviction and sentencing). This Court’s interpretation of the
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phrase “same transaction” as used in the statute does not represent a change in law. See People v
Doyle, 451 Mich 93, 113; 545 NW2d 627 (1996) (“where a precisely drafted statute, unambiguous
on its face, is interpreted by this Court for the first time, there has not been a ‘change’ in the law.”).
In fact, this Court’s decision in Bailey interpreted “same transaction” to mean that the two
offenses “must be part of a ‘continuous time sequence,’ not merely part of a continuous course of
conduct.” 310 Mich App at 725, citing People v Brown, 495 Mich 962, 963; 843 NW2d 743(2014), and People v Ryan, 295 Mich App 388, 402-403; 819 NW2d 55 (2012). Ryan states that
the term “same transaction” “has developed a unique legal meaning.” Id. at 402. And Ryan in
turn looked to People v Nutt, 469 Mich 565; 677 NW2d 1 (2004),1 from which the phrase
“continuous time sequence” originates. Id. at 570.
Although the parties argue that Bailey provided a new definition of “same transaction,”
neither point to any cases establishing an “old definition” of “same transaction.”2 And, even if
there were an old definition of “same transaction,” it would have to predate the Supreme Court’s
decision in Nutt, i.e., prior to 2004.
In sum, it cannot be said that this Court’s interpretation of the term “same transaction” in
Ryan and Bailey represented a change in the law. Those opinions merely provide an interpretation
of the meaning of that term as used by the Legislature in the 2006 amendment. Defendant also
argues on appeal that he was denied effective assistance of counsel related to pretrial plea
negotiations. While defendant raised this issue in his application for leave to appeal, this Court’s
order granting leave was “limited to Issue II raised in the application.” People v VanKlaveren,
unpublished order of the Court of Appeals, entered September 14, 2022 (Docket No. 361017).
Issue II in defendant’s application is the consecutive sentencing issue discussed above. The
ineffective assistance of counsel argument is Issue I. Accordingly, defendant’s argument that he
was denied effective assistance of counsel is not properly before us.
Affirmed.
/s/ Kathleen A. Feeney
/s/ Michelle M. Rick
/s/ Noah P. Hood
1
It should be acknowledged that Nutt did not involve consecutive sentencing, but rather a
discussion of the “same transaction” language in the context of the double jeopardy rule.
2
For example, the prosecutor’s brief on appeal refers to “general reliance on the old rule,” and that
“prosecutor’s offices, defense attorneys, and courts across the state were acting under the
impression that the ‘same transaction’ required by MCL 750.520b(3) included ongoing or
continuous abuse.” That may well be true, but no authority is provided so as to justify that
“impression” that gave rise to that “general reliance.”
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