People of Michigan v. Joshua Jerrold Tietz

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
July 25, 2019
Plaintiff-Appellee,
v No. 342613
Lapeer Circuit Court
JOSHUA JERROLD TIETZ, LC No. 16-012503-FC
Defendant-Appellant.
Before: BORRELLO, P.J., and SWARTZLE and CAMERON, JJ.
PER CURIAM.
Defendant appeals by leave granted his guilty-plea convictions of two counts of second-
degree criminal sexual conduct (CSC-II), MCL 750.520c(1)(a) (sexual contact with another
person under 13 years of age).1 The trial court sentenced defendant to a term of 7 to 15 years of
imprisonment for each count of CSC-II. After it entered the original judgment of sentence, the
trial court entered an amended judgment of sentence that indicated that defendant was subject to
lifetime electronic monitoring as part of his sentence. Defendant challenges the trial court’s
entry of the amended judgment of sentence. Because we conclude that the trial court’s
correction of the original invalid sentence was governed by the amended language of MCR
6.429, we affirm.
I. BACKGROUND
On November 5, 2015, the prosecutor filed a felony complaint charging defendant with
two counts of first-degree criminal sexual conduct (CSC-I), MCL 750.520b(1)(a), and two
counts of CSC-II. Defendant’s two younger sisters were the victims of his sexual assaults. On
the original felony complaint, the prosecutor alleged that the sexual assaults occurred on or about
January 1, 2000. On February 19, 2016, the prosecutor filed a revised felony information that
1
See People v Tietz, unpublished order of the Court of Appeals, entered April 20, 2018 (Docket
No. 342613).
contained the same four charges, and that information continued to allege that the offenses
occurred on or about January 1, 2000, at which time defendant was 11 years old and his sisters
were both younger than 13 years old.
Both victims testified in detail at defendant’s preliminary examination, and both testified
to a repeated course of conduct in which defendant committed acts of criminal sexual conduct
against them, beginning when the victims were five or six years old, and continuing until they
were 11 or 12 years old. These acts of criminal sexual conduct included acts that would clearly
constitute CSC-I, and the victims testified that these acts occurred on a daily or weekly basis
over the course of multiple years. Both victims testified that they informed their parents that
defendant was sexually assaulting them, but that their parents took no action to protect them and
that defendant’s sexual assaults continued after they asked their parents for help and protection.
Some of the sexual assaults described by the victims occurred in Lapeer County and some
occurred in other jurisdictions. According to the victims, defendant’s sexual assaults continued,
on a daily or weekly basis, over the course of multiple years, until defendant was older than 17
years old.
On March 27, 2017, defendant pleaded guilty to two counts of CSC-II (one count for
each victim), in exchange for the prosecutor’s dismissal of the two counts of CSC-I. At the plea
hearing, defendant admitted that, on or about January 1, 2000, he touched the two victims’
genitals with his hand for a sexual purpose, and he admitted that both of the victims were
younger than 13 years old when he did so. When the trial court asked defendant whether he was
at least 17 years old when he sexually assaulted his sisters, defendant consulted with his attorney,
counsel for both parties held a sidebar conference with the trial court, and the trial court
announced a 10-minute break in proceedings. When the plea hearing resumed, the trial court
acknowledged that defendant was only 11 or 12 years old on the date alleged in the information,
and acknowledged that it was a “legal fiction” to claim that defendant was at least 17 years old
on that date. Defendant then acknowledged, only “for purposes of taking the plea,” that he was
at least 17 years old when he sexually assaulted his sisters.
Counsel for both parties agreed that the prosecutor would dismiss Counts I and II (both
CSC-I) if defendant pleaded guilty to Counts III and IV (both CSC-II). The trial court then
explained to defendant the possible punishment that could be imposed by the trial court, if
defendant pleaded guilty. The trial court explained:
And, again, I didn’t read you the maximum punishment under Count 1 or
Count 2, because they’re the same thing, but the maximum punishment is as
follows: That this is a tier 3 offense under the Sex Offender’s Registration Act,
unless the Court finds that the victim was between the ages of 13 and 15
inclusive, and consented to the conduct; and that you are not more than four years
older than the victim.
* * *
It also indicates that the sentence would be life, mandatory lifetime
electronic monitoring, mandatory [AIDS] and STD testing. DNA is to be taken
-2-
upon arrest, and the Court may impose consecutive sentences. Again, that’s the
same penalty under Counts 1 and 2.
In regard to Count 3, it does allege that you, being 17 years of age or
older, did engage in sexual contact with a person under 13 years old, and that
individual’s initials are J.M.T. Again, this is a tier 3 offense. Under the Sex
Offender’s Registration Act, it carries with it up to 15 years in prison and lifetime
electronic monitoring upon parole from prison. There would be mandatory
[AIDS] and STD testing, and DNA is [to] be taken upon arrest.
Under Count 4, again, that you being 17 years of age or older did engage
in sexual contact with a person under 13 years of age, initials S.J.T. Again, this is
a tier 3 offense under the Sex Offender’s Registration Act. That carries with it up
to 15 years in prison and lifetime electronic monitoring upon parole from prison.
There would be mandatory [AIDS], STD testing, DNA to be taken upon arrest.
And upon conviction of a felony or attempted felony, the court shall order law
enforcement to collect DNA identification profiling samples from you.
After receiving this information regarding the possible punishment that could be imposed by the
trial court, including the information about lifetime electronic monitoring, defendant pleaded
guilty to the two counts of CSC-II.
On May 22, 2017, the trial court held defendant’s sentencing hearing. At that time,
defense counsel requested, and the prosecutor agreed, that the offense date listed on the
presentence investigation report (PSIR) be changed from January 1, 2007, to January 1, 2000,
because the felony information indicated that the charged offenses occurred on or about January
1, 2000. The trial court ordered the amendment of the PSIR to reflect that the offenses occurred
on or about January 1, 2000. The trial court then sentenced defendant to a term of 7 to 15 years
of imprisonment for each conviction of CSC-II. The trial court failed to mention lifetime
electronic monitoring at the sentencing hearing, and the trial court did not indicate on the original
judgment of sentence that lifetime electronic monitoring was part of defendant’s sentence.
Because the judgment of sentence listed the offense date as January 1, 2000, on which
date defendant was 11 years old, the Department of Corrections (DOC) refused to take custody
of defendant, taking the position that the sentence appeared to be invalid on its face because an
11-year-old defendant could not be sentenced as an adult. As a result of the DOC’s refusal to
take custody of defendant, on May 31, 2017, the trial court held a hearing during which the
prosecutor orally moved to amend the felony information. The prosecutor moved to amend the
offense date on the information from on or about January 1, 2000, to a date range of on or about
January 1, 2000, through May 18, 2008. The prosecutor also requested that the trial court change
the offense date on the PSIR back to January 1, 2007, the date that the PSIR originally stated,
because defendant was only 11 years old in 2000, but he was older than 17 years old in 2007.
Over defendant’s objection, the trial court granted the prosecutor’s request to file the amended
information and stated that the amended document was incorporated “into the plea-taking
process and into the sentencing process” that had already occurred. The trial court, however,
clarified that “the Court’s sentencing would be exactly the same.” Later that day, the prosecutor
filed the amended information. The trial court then entered an amended judgment of sentence
-3-
that ordered lifetime electronic monitoring, despite the fact that the original judgment of sentence
did not include lifetime electronic monitoring and the prosecutor did not move to add the
monitoring.
Defendant subsequently filed a motion in the trial court to correct the amended judgment
of sentence, arguing that it was an invalid sentence. Defendant argued that the trial court erred
when it ordered lifetime electronic monitoring in the amended judgment of sentence. At the
hearing on that motion, defendant argued that the trial court’s amended judgment of sentence
was invalid under our Supreme Court’s holding in People v Comer, 500 Mich. 278; 901 NW2d
553 (2017). Defendant, therefore, requested that the trial court reinstate the original judgment of
sentence, which did not include lifetime electronic monitoring.
The trial court stated that it made a clerical error when it initially failed to check the box
ordering lifetime electronic monitoring on the original judgment of sentence, and concluded that
it could correct that clerical error at any time under MCR 6.435(A). The trial court reasoned
that, unlike in Comer, it had stated on the record, at the time defendant pleaded guilty to sexually
assaulting his sisters, that lifetime electronic monitoring would be required. Therefore, the trial
court denied defendant’s motion to reinstate the original judgment of sentence, which did not
include lifetime electronic monitoring.
II. ANALYSIS
On appeal, defendant argues that the trial court erred when it entered the amended
judgment of sentence ordering lifetime electronic monitoring. Defendant argues that he is not
subject to mandatory lifetime electronic monitoring under the statute because he was a minor
when he committed the crimes. He also argues that, even if he was otherwise subject to such
monitoring, under our Supreme Court’s holding in Comer, the trial court lacked authority to
amend the judgment of sentence, absent a motion from one of the parties. As explained below,
we conclude that defendant’s arguments ultimately fail.
A. DEFENDANT’S AGE
Defendant first argues that he is not subject to mandatory lifetime electronic monitoring
because he admitted “for purposes of the plea only” that he was at least 17 years of age or older
when he repeatedly subjected his sisters to sexual assaults. Defendant pleaded guilty to two
counts of CSC-II, MCL 750.520c(2)(b), which states that a trial court “shall sentence the
defendant to lifetime electronic monitoring under section 520n if the violation involved sexual
contact committed by an individual 17 years of age or older against an individual less than 13
years of age.” Defendant essentially argues that, if he did not commit a sexual assault against
either victim after he turned 17 years old, the trial court was not required to sentence him to
lifetime electronic monitoring. We decline to address defendant’s argument that he was younger
than 17 years old when he sexually assaulted his sisters because he did not raise this argument in
his delayed application for leave to appeal. See People v Tietz, unpublished order of the Court of
Appeals, entered April 20, 2018 (Docket No. 342613), limiting the appeal “to the issues raised in
the application and supporting brief.” Id. Because defendant did not raise this argument in his
application for leave to appeal, he has waived appellate review of this issue. See People v Axley,
477 Mich. 878; 721 NW2d 597 (2006).
-4-
B. RETROACTIVE APPLICATION OF COURT RULES
1. STANDARD OF REVIEW AND APPLICABLE COURT RULES
Turning to the claim that defendant did raise in his application for leave to appeal, MCR
6.435 and MCR 6.429 are the court rules relevant to resolving the claim. “The interpretation of
court rules is a question of law that this Court reviews de novo.” People v Walters, 266 Mich
App 341, 346; 700 NW2d 424 (2005). MCR 6.435 provides in relevant part:
(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.
When the trial court entered the original judgment of sentence and the amended judgment
of sentence, MCR 6.429 provided in relevant part:
(A) Authority to Modify Sentence. A motion to correct an invalid
sentence may be filed by either party. The court may correct an invalid sentence,
but the court may not modify a valid sentence after it has been imposed except as
provided by law.
(B) Time for Filing Motion.
(1) A motion to correct an invalid sentence may be filed before the filing
of a timely claim of appeal.
(2) If a claim of appeal has been filed, a motion to correct an invalid
sentence may only be filed in accordance with the procedure set forth in MCR
7.208(B) or the remand procedure set forth in MCR 7.211(C)(1).
(3) If the defendant may only appeal by leave or fails to file a timely claim
of appeal, a motion to correct an invalid sentence may be filed within 6 months of
entry of the judgment of conviction and sentence.
(4) If the defendant is no longer entitled to appeal by right or by leave, the
defendant may seek relief pursuant to the procedure set forth in subchapter 6.500.
Less than two months after the trial court’s sentencing decision in this case, the Michigan
Supreme Court issued its opinion in Comer. In that case, the defendant was convicted of CSC-I,
but the trial court failed to order lifetime electronic monitoring on the original judgment of
sentence, even though lifetime electronic monitoring was statutorily mandated under the
circumstances of the case. Comer, 500 Mich. at 292. The trial court in that case, on its own
-5-
initiative, entered an amended judgment of sentence that included lifetime electronic monitoring,
in an attempt to include the statutorily mandated punishment. Id. at 292-293.
On appeal, the Supreme Court concluded that the trial court’s original sentence, which
failed to include lifetime electronic monitoring, was invalid because it failed to include this
statutorily mandated punishment. Id. at 292. The Supreme Court then turned to “whether the
trial court was authorized to amend defendant’s judgment of sentence on its own initiative 19
months after judgment on the sentence had entered.” Id. at 292-293. Reading MCR 6.435 and
MCR 6.429 together, the Supreme Court acknowledged that a trial court “may correct a clerical
mistake on its own initiative at any time, including after a judgment has entered.” Id. at 293.
Because the parties in that case did not argue that the trial court’s original failure to sentence
defendant to lifetime electronic monitoring was a clerical mistake, id., the Supreme Court
proceeded to consider whether a trial court may correct a substantive mistake, on its own
initiative, in the absence of a motion filed by either party, id. at 294. Ultimately, the Comer
Court concluded that the version of MCR 6.429 in effect at that time did not allow a trial court,
on its own initiative, to correct a substantive mistake in a judgment of sentence after judgment
was entered. Id. at 297-298. The Supreme Court then held that the proper remedy for this
situation was to vacate the amended judgment of sentence and remand for reinstatement of the
original invalid sentence. Id. at 301.
In response to Comer, the Michigan Supreme Court amended MCR 6.429, effective
September 1, 2018, to provide a trial court the authority to correct an invalid sentence on the
court’s own initiative. The rule now provides:
(A) Authority to Modify Sentence. The court may correct an invalid
sentence, on its own initiative after giving the parties an opportunity to be heard,
or on motion by either party. But the court may not modify a valid sentence after
it has been imposed except as provided by law. Any correction of an invalid
sentence on the court’s own initiative must occur within 6 months of the entry of
the judgment of conviction and sentence.
In this case, the trial court entered the amended judgment of sentence on May 31, 2017,
meaning that the version of MCR 6.429 that the Michigan Supreme Court interpreted in Comer
was still in effect at the time of defendant’s sentencing, and the revised version of MCR 6.429
giving a trial court the ability to correct an invalid sentence on its own initiative was not yet in
effect.
Now that our Supreme Court has amended MCR 6.429, the questions before this Court
are whether the amended court rule applies retroactively to the trial court’s actions in this case
and, if it does, whether the amended court rule authorized the trial court’s addition of lifetime
electronic monitoring to correct the original invalid sentence that erroneously omitted that
statutorily mandated punishment.
2. CLERICAL OR SUBSTANTIVE ERROR
Defendant claims that a trial court’s failure to impose lifetime electronic monitoring, as
mandated by the Legislature for a person convicted of CSC-II in the circumstances presented
-6-
here, is a substantive mistake. Defendant argues that, when a trial court makes no reference to
lifetime electronic monitoring at the sentencing hearing, the failure to sentence a defendant to
such monitoring is a substantive mistake, and a motion from one of the parties is necessary to
correct it. We agree that the trial court’s initial failure to impose lifetime electronic monitoring
on the original judgment of sentence was a substantive mistake, not a clerical one.2
Subsequent to the issuance of its decision in Comer, the Supreme Court has indicated, in
multiple orders, that “correcting an invalid sentence by adding a statutorily mandated term is a
substantive correction that a trial court may make on its own initiative only before judgment is
entered.” See, e.g., People v Warrick, 501 Mich. 920; 903 NW2d 552 (2017). More specifically,
the Supreme Court has held that a trial court’s failure to impose lifetime electronic monitoring is
a substantive error that can “only be corrected by the trial court on its own initiative before
judgment is entered.” People v Thompson, 501 Mich. 873, 873-874; 901 NW2d 859 (2017).
These cases, however, all involved the application of the former language of MCR 6.429, not the
amended language. Because the Supreme Court changed the requirements for a trial court to
correct an invalid sentence on its own initiative when it amended MCR 6.429, we must examine
whether the amended version of MCR 6.429 applies retroactively to this case and whether the
trial court’s correction of the invalid sentence complied with the requirements of that amended
court rule.3
3. RETROACTIVE APPLICATION OF THE AMENDED COURT RULE
After oral argument on appeal, this Court ordered the parties to submit supplemental
briefing addressing the retroactive application of the amended court rule. Having considered the
parties’ supplemental arguments, we conclude that the amended version of MCR 6.429
retroactively applies to the trial court’s sua sponte amendment of the judgment of sentence.
New and amended court rules generally apply to all proceedings in actions brought on or
after the effective date, as well as pending cases, unless the application of the amended rule
would not be feasible or would work injustice. See MCR 1.102; Reitmeyer v Schultz Equip &
2
On this point, the majority and dissenting opinions agree—the trial court’s mistake was
substantive.
3
The dissent argues that this opinion casts aside the Michigan Supreme Court’s decision in
Comer under the erroneous belief that this Court is not bound by that decision. To the contrary,
we recognize the applicability of our Supreme Court’s decision in Comer—to the proper
interpretation and application of the former version of MCR 6.429. We agree that, if the former
version of the court rule applies in this case, the trial court lacked the ability to correct its
substantive error, for the reasons explained in Comer. Yet, our Supreme Court subsequently
amended MCR 6.429, in response to its decision in Comer, to provide a trial court the authority
to correct an invalid sentence on the trial court’s own initiative. Our task in this case is to
determine whether the court rule, as amended by our Supreme Court, changes the proper
resolution of this case. We agree that it does.
-7-
Parts Co, Inc, 237 Mich. App. 332, 337; 602 NW2d 596 (1999). A case is pending when it is still
on direct review. See People v Sexton, 458 Mich. 43, 54; 580 NW2d 404 (1998).
Although the dissent criticizes our reliance on Reitmeyer, that opinion was issued after
November 1, 1990, and a panel of this Court “must follow the rule of law established by a prior
published decision of the Court of Appeals issued on or after November 1, 1990, and has not
been reversed or modified by the Supreme Court, or by a special panel of the Court of Appeals.”
See MCR 7.215(J)(1). Reitmeyer considered whether the original or an amended version of
MCR 2.504, relating to offers of judgment, applied in that case. The trial court in Reitmeyer
applied the amended court rule to deny a motion for costs, reasoning that “procedural rules are to
operate retrospectively in the absence of a clear contrary intention.” Reitmeyer, 237 Mich. App. at
336. On appeal, this Court noted that “this is not the proper analysis with respect to court rules,
because MCR 1.102 provides its own specific rules for the adoption of new and amended court
rules that should take precedence over the generalized rules of retrospectivity and prospectivity.”
Id. at 337.
MCR 1.102 provides:
These rules take effect on March 1, 1985. They govern all proceedings in
actions brought on or after that date, and all further proceedings in actions then
pending. A court may permit a pending action to proceed under the former rules
if it finds that the application of these rules to that action would not be feasible or
would work injustice.
As explained by the Reitmeyer Court, “Although MCR 1.102 was originally a transitional
provision for the introduction of the court rules, the same principle has been applied to
subsequently adopted or amended rules.” Reitmeyer, 237 Mich. App. at 337, citing 1 Dean &
Longhofer, Michigan Court Rules Practice (4th ed.), pp. 4–5 (cleaned up). “Thus, ‘the norm is to
apply the newly adopted court rules to pending actions unless there is reason to continue
applying the old rules.’ ” Reitmeyer, 237 Mich. App. at 337, quoting Davis v O’Brien, 152 Mich
App 495, 500; 393 NW2d 914 (1986).
The dissent cites Reitmeyer’s discussion of People v Blunt, 189 Mich. App. 643, 648, 473
N.W.2d 792 (1991), to support an argument that procedural rules should have prospective effect
only. Yet, the Reitmeyer Court expressly rejected Blunt’s analysis, as applied to the potential
retroactivity of amended court rules:
There are numerous issues inherent in a discussion whether certain laws
operate retrospectively or prospectively. For example, there is conflicting case
law on the issue whether court rules should generally be applied retrospectively or
prospectively. See, for example, People v Blunt, 189 Mich. App. 643, 648; 473
NW2d 792 (1991), and Harris v Pennsylvania Erection & Constr, 143 Mich. App.
790, 795; 372 NW2d 663 (1985). Further, it could be argued that the triggering
event for application of the court rule here was the date of the filing of the motion
for sanctions, the decision regarding the motion, or the date of the offer of
judgment itself. However, because the court rules provide clear direction
regarding the application of new or amended court rules that does not rely on the
-8-
language of “retrospectivity” and “prospectivity,” we need not delve into such
issues or address these problems here. [Reitmeyer, 237 Mich. App. at 336 n 2.]
The upshot of the above authority is that Reitmeyer is binding on this Court and that
decision held that “the norm is to apply the newly adopted court rules to pending actions unless
there is reason to continue applying the old rules.” Reitmeyer, 237 Mich. App. at 337. The
dissent offers no reason—let alone a compelling reason—to apply the former version of MCR
6.429 to the facts of this case. The Michigan Supreme Court recognized the unworkability of the
former court rule that did not allow a trial court to correct a substantive mistake, on its own
initiative, in the absence of a motion filed by either party. The Supreme Court therefore
amended the court rule to provide a trial court authority to sua sponte correct such a mistake.
Reitmeyer stressed that MCR 1.102 provides clear direction regarding whether a court
rule is to be applied retrospectively or prospectively. This rule states, “A court may permit a
pending action to proceed under the former rules if it finds that the application of these rules to
that action would not be feasible or would work injustice.” The dissent does not explain why the
application of the amended version of MCR 6.429 in this case “would not be feasible or would
work injustice.” An “injustice is not present merely because a different result would be reached
under the new rules.” Reitmeyer, 237 Mich. App. at 337 (cleaned up). We see nothing unfeasible
or unjust in applying the amended court rule adopted by our Supreme Court to a case that was
pending on direct review when the amended court rule became effective. Furthermore, we see
nothing unfeasible or unjust in providing a trial court with a procedure by which it can correct an
invalid sentence by imposing a statutorily mandated punishment. In contrast, it would be unjust
to allow a defendant who pleaded guilty to felony crimes to escape the statutorily mandated
punishment for those crimes simply because the defendant believes he found a technical
“loophole.” The Supreme Court issued an opinion, two months after defendant’s sentencing in
this case, announcing an interpretation of the court rules governing how trial courts may correct
invalid sentences. The Supreme Court then adopted an amended court rule, while defendant’s
appeal was pending in this Court, providing a trial court the ability to correct an invalid sentence
on its own initiative. We conclude that there is no reason to apply the old court rule in this case,
and we therefore apply the amended court rule.4
The dissent seems to imply that Reitmeyer was overruled by Ligons v Crittenton Hosp,
490 Mich. 61, 88; 803 NW2d 271 (2011). Not so. In fact, Ligons cited Reitmeyer with approval.
Moreover, subsequent to the Supreme Court’s decision in Ligons, other panels of this Court have
continued to recognize the validity of Reitmeyer and apply it in the same manner that we apply it
in this case—to guide the decision whether a court rule should be applied retroactively. See e.g.
4
See People v Colbert-Brand, unpublished per curiam opinion of the Court of Appeals, issued
December 6, 2018 (Docket No. 338483), pp 5-6, in which another panel of this Court applied the
amended court rule to a trial court’s sua sponte correction of a substantive error in the original
judgment of sentence. Although we recognize that unpublished opinions of this Court are not
binding precedent, MCR 7.215(C)(1), they may be considered instructive or persuasive. Paris
Meadows, LLC v Kentwood, 287 Mich. App. 136, 145 n 3; 783 NW2d 133 (2010).
-9-
Eberbach v Massey, unpublished per curiam opinion of the Court of Appeals, issued May 21,
2019 (Docket No. 346025); Colbert-Brand, unpub op at pp 5-6; Grenier v Windsor, unpublished
per curiam opinion of the Court of Appeals, issued October 20, 2015 (Docket No. 321932).
The dissent also suggests that Ligons announced a categorical rule that, when the
Supreme Court includes an effective date in the order adopting amendments to a court rule, this
constitutes an explicit order that the amended rules have prospective effect only. We disagree
with the dissent that the Ligons Court announced such a per se rule. Although the Ligons Court
did not analyze the potential applicability of MCR 1.102, it applied Reitmeyer (which relied on
MCR 1.102) when it declined to apply amended rules retroactively where doing so was
infeasible. It is common for the Supreme Court to provide effective dates for amendments to the
court rules, and we cannot read Ligons for the proposition that stating an effective date in an
amended court rule abrogates the applicability of MCR 1.102.
As explained earlier, the amended version of MCR 6.429 provides:
(A) Authority to Modify Sentence. The court may correct an invalid
sentence, on its own initiative after giving the parties an opportunity to be heard,
or on motion by either party. But the court may not modify a valid sentence after
it has been imposed except as provided by law. Any correction of an invalid
sentence on the court’s own initiative must occur within 6 months of the entry of
the judgment of conviction and sentence.
We note that the trial court in this case entered the amended judgment of sentence less than two
weeks after the entry of the original invalid judgment of sentence. Therefore, the trial court’s
amended sentence satisfies the requirement of the amended MCR 6.429 that “[a]ny correction of
an invalid sentence on the court’s own initiative must occur within 6 months of the entry of the
judgment of conviction and sentence.”5
We must consider, however, whether the trial court corrected the invalid sentence on its
own initiative “after giving the parties an opportunity to be heard,” as required by the amended
language of MCR 6.429. The trial court did not initially provide the parties the opportunity to be
heard on the addition of lifetime electronic monitoring to the judgment of sentence. Rather, the
trial court provided the parties the opportunity to be heard on the prosecutor’s motion to amend
the felony information to alter the date of the listed offense. The omission of lifetime electronic
5
The dissent correctly points out that the hearing on defendant’s motion challenging the trial
court’s amended judgment of sentence occurred more than six months of the entry of the original
invalid judgment of sentence. Yet, the amended court rule clearly states, “Any correction of an
invalid sentence on the court’s own initiative must occur within 6 months of the entry of the
judgment of conviction and sentence.” MCR 6.429(A). It is the correction of the invalid
sentence, i.e., the entry of the amended judgment of sentence, that must occur within six months.
In this case, the trial court corrected the invalid sentence within less than two weeks after the
entry of the original invalid judgment of sentence.
-10-
monitoring from the original judgment of sentence was not discussed at that hearing. The trial
court did, however, provide the parties the opportunity to be heard on the addition of lifetime
electronic monitoring once defendant filed a motion challenging the trial court’s amendment.
The trial court conducted a hearing on that motion and both parties had a full and fair
opportunity to be heard on this precise issue.
On these facts, we conclude that the trial court substantially complied with the
requirement of the amended MCR 6.429 that the trial court correct an invalid sentence on its own
initiative “after giving the parties an opportunity to be heard.” Defendant had an opportunity to
be heard in the trial court regarding the correction of the invalid sentence. See People v Plumaj,
284 Mich. App. 645, 649; 773 NW2d 763 (2009) (holding that a trial court must substantially
comply with the requirements of MCR 6.302), see also People v Mosly, 259 Mich. App. 90, 97;
672 NW2d 897 (2003) (in the context of plain-error review, holding that rules of automatic
reversal are disfavored for a host of obvious reasons).
Finally, even setting aside the matter of substantial compliance, we conclude that the trial
court’s failure to grant defendant an opportunity to be heard before correcting the invalid
sentence was harmless. See MCL 769.26 (stating that no judgment shall be set aside or reversed
in any criminal case for error on any matter of pleading or procedure unless the error resulted in
a miscarriage of justice); People v Elston, 462 Mich. 751, 765-766; 614 NW2d 595 (2000)
(applying harmless-error review to a violation of a court rule that was nonconstitutional in
nature); People v Lukity, 460 Mich. 484, 495; 596 NW2d 607 (1999) (holding that MCL 769.26
controls judicial review of preserved, nonconstitutional error). Defendant received the
opportunity to be heard on this issue before appellate proceedings began. The trial court can
hardly be faulted for failure to comply strictly with the requirements of a court rule that did not
yet exist when the trial court conducted the proceedings to correct the invalid sentence. At the
time it corrected the original invalid sentence, the trial court did not have the benefit of the
guidance in Comer, let alone the benefit of the guidance in the amended court rule enacted in
response to Comer. Yet, the trial court provided defendant with the opportunity to be heard
regarding the trial court’s correction of the invalid sentence on its own motion. This is what the
amended court rule now requires.6
Because we conclude that the trial court’s correction of the original invalid sentence is
governed by the amended language of MCR 6.429, and because we conclude that the trial court
gave the parties an opportunity to be heard regarding the amendment to the judgment of sentence
to include lifetime electronic monitoring, we affirm.
6
The dissent argues that we put the cart before the horse in this case because the trial court
corrected the invalid sentence before—rather than after—giving the parties an opportunity to be
heard. Yet, it remains the case that defendant had an opportunity to be heard in the trial court
regarding the correction of the invalid sentence. Defendant had the opportunity to brief and
argue the issue in the trial court, and received full consideration of the merits of his arguments.
The purpose of the amended court rule has been satisfied.
-11-
Affirmed.
/s/ Brock A. Swartzle
/s/ Thomas C. Cameron
-12-