People v. Parish

761 N.W.2d 441 (2009) 282 Mich. App. 106

PEOPLE
v.
PARISH.

Docket No. 280506.

Court of Appeals of Michigan.

Submitted January 7, 2009, at Lansing. Decided January 15, 2009, at 9:05 a.m.

Michael A. Cox, Attorney General, B. Eric Restuccia, Solicitor General, Henry C. Zavislak, Prosecuting Attorney, and Jerrold Schrotenboer, Chief Appellate Attorney, for the people.

Gerald Ferry and Curtis Parish, in propria persona.

Before: MURRAY, P.J., and O'CONNELL and DAVIS, JJ.

DAVIS, J.

Defendant appeals by leave granted his amended sentence of 210 months to 360 months of imprisonment, with 2,093 days of jail credit. Defendant pleaded guilty to one count of first-degree criminal sexual conduct, MCL 750.520b(1)(b)(i) (victim at least 13 but less than 16 years of age and member of same household), and he was originally sentenced to imprisonment for 126 months to life.^[1] Several years later, the Department of Corrections noticed that this was an invalid sentence and advised the trial court of that fact. Defendant was then resentenced by a successor judge, the judge who imposed his original sentence having since retired. We affirm.

Defendant's original sentence violated MCL 769.9(2), which provides:

In all cases where the maximum sentence in the discretion of the court may be imprisonment for life or any number or term of years, the court may impose a sentence for life or may impose a sentence for any term of years. If the sentence imposed by the court is for any term of years, the court shall fix both the minimum and the maximum of that sentence in terms of years or fraction thereof, and sentences so imposed shall be considered indeterminate sentences. The court shall not impose a sentence in which the maximum penalty is life imprisonment with a minimum for a term of years included in the same sentence.

The original sentence contained a minimum of a term of years and a maximum of life. It is therefore not disputed that it was invalid. Defendant now contends that although the trial court was obligated to impose a new and valid maximum term on resentencing, the trial court was not permitted to impose a longer minimum term. We disagree.

Ultimately at issue is whether a violation of MCL 769.9(2) renders invalid the entire sentence or only part of it. Where a sentence is partially invalid, only the invalid part is to be vacated for resentencing; however, a wholly invalid sentence is to be vacated in its entirety, and resentencing is to be de novo. People v. Williams (After Second Remand), 208 Mich.App. 60, 63-65, 526 N.W.2d 614 (1994).

This Court has previously held that a violation of MCL 769.9(2) requires vacation of the entire sentence and a remand for resentencing. See People v. Foy, 124 Mich.App. 107, 113, 333 N.W.2d 596 (1983); People v. Boswell, 95 Mich.App. 405, 410-411, 291 N.W.2d 57 (1980); People v. Holcomb, 47 Mich.App. 573, 590, 209 N.W.2d 701 (1973), rev'd on other grounds 395 Mich. 326, 235 N.W.2d 343 (1975); People v. Harper, 39 Mich.App. 134, 142-143, 197 N.W.2d 338 (1972). These cases were decided before the enactment of the "first out rule," MCR 7.215(J)(1), and technically do not bind us, and they do not contain any explicit consideration of the precise point now before us. However, we agree with the above cases that a violation of MCL 769.9(2) renders a sentence wholly invalid. The problem is not that the maximum exceeded some particular limit, but rather that the original sentence was an impermissible combination of terms. Therefore, it must be vacated in its entirety for a resentencing de novo.

We conclude that the trial court was not precluded from imposing a new sentence with a longer minimum term. Furthermore, a different judge imposed defendant's second sentence, so the presumption of vindictiveness where a defendant is resentenced to a longer term does not apply. People v. Grady, 204 Mich.App. 314, 317, 514 N.W.2d 541 (1994).

We therefore affirm defendant's sentence.

NOTES

[1] Defendant pleaded guilty in exchange for the prosecutor agreeing not to proceed on an habitual offender count. At that time, defendant affirmed to the trial court that he understood that he could be imprisoned for life or any term of years. Defendant's conviction is not at issue in this appeal.