People of Michigan v. George Alan Rowser

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
September 3, 2020
Plaintiff-Appellant,
v No. 347307
Oakland Circuit Court
GEORGE ALAN ROWSER, LC No. 2017-264602-FH
Defendant-Appellee.
Before: STEPHENS, P.J., and O’BRIEN and REDFORD, JJ.
PER CURIAM.
The prosecution appeals by leave granted1 the trial court’s order reducing defendant’s jail
sentence. We vacate and remand.
I. BACKGROUND
On July 30, 2017, defendant was arrested for having 6.5 grams of individual packages of
crack cocaine on his person. Defendant posted bond and was released on July 31, 2017. On
November 14, 2017, defendant pleaded guilty to possession with intent to deliver less than 50
grams of cocaine, MCL 333.7401(2)(a)(iv) pursuant to a Cobbs2 agreement. On December 19,
2017, defendant was sentenced as a fourth-offense habitual offender, MCL 769.13, to 150 days in
jail, with two days of jail credit; however, the trial court suspended defendant’s jail sentence and
admitted defendant into the Zero Tolerance Program (ZTP), a substance abuse program run by the
1
People v Rowser, unpublished order of the Court of Appeals, entered May 29, 2019 (Docket No.
347307).
2
People v Cobbs, 443 Mich 276; 505 NW2d 208 (1993).
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Oakland County Sheriff’s Department. Defendant filed a motion to reduce his sentence, which
the trial court granted.3
On May 2, 2018, defendant violated the ZTP rules by having a drug screen that was positive
for cocaine. On June 11, 2018, defendant failed to present to the jail for reinstatement of his
original sentence. On June 13, 2018, the prosecution filed a petition requesting that a bench
warrant be issued for defendant’s arrest, which the trial court granted. On July 31, 2018, defendant
filed a motion to reduce his sentence, requesting the trial court terminate his sentence because he
needed to work. On August 8, 2018, the trial court granted defendant’s motion:
It is hereby ordered that the remaining sentence is hereby waived and George
Rowser is ordered to be released from custody.
The prosecution filed a motion to reconsider the trial court’s reduction of defendant’s jail
sentence, which the trial court denied. This appeal ensued.
II. SENTENCE COMMUTATION
The prosecution contends the trial court erred, and exceeded its authority, in reducing
defendant’s jail sentence. Specifically, the prosecution argues the trial court improperly commuted
defendant’s sentence, which was valid and, therefore, nonmodifiable. The prosecutor also asserts
that MCL 801.257 is not applicable to reduce defendant’s sentence. Remand, for further
development and explanation, is appropriate in this instance because the record is inadequate to
determine the trial court’s reasoning for granting defendant’s motion to reduce his sentence.
A. STANDARD OF REVIEW
“The proper interpretation and application of statutes and court rules is a question of law,
which this Court reviews de novo.” People v Comer, 500 Mich 278, 287; 901 NW2d 553 (2017)
(citation omitted).
When interpreting statutes, we begin with the statute’s plain language. In doing so,
we examine the statute as a whole, reading individual words and phrases in the
context of the entire legislative scheme. We must give effect to every word, phrase,
and clause and avoid an interpretation that would render any part surplusage or
nugatory. When the statute’s language is unambiguous, the statute must be
enforced as written. These same legal principles govern the interpretation of court
rules. [Id. (citations omitted).]
3
A separate case, lower court Case No. 2018-265689-FH, arose on October 28, 2017, when
defendant was arrested for possession of approximately 1.5 grams of cocaine, in Oak Park,
Michigan. On August 7, 2018, defendant was sentenced, as a fourth-offense habitual offender, to
one-year probation, and 59 days in jail, with 59 days jail credit. The trial court did not admit
defendant to the ZTP for this offense.
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B. ANALYSIS
We note that there is no challenge to the defendant’s original plea or sentence of a
suspended jail sentence of 150 days for defendant to participate in the ZTP. Rather, the
controversy is over the court’s August 8th order to waive the balance of defendant’s sentence.
The prosecution initially asserts the trial court relinquished jurisdiction over defendant to
the sheriff when it ordered defendant to report to jail rather than probation, after defendant violated
the ZTP rules. We disagree.
“A sentencing court that places a person in a community corrections program shall retain
jurisdiction over the person as a probationer under chapter XI of the code of criminal procedure,
Act No. 175 of the Public Acts of 1927, being sections 771.1 to 771.14a of the Michigan Compiled
Laws.” MCL 791.409.4 A “ ‘[c]ommunity corrections program’ means a program that is operated
by or contracted for by a city, county, or group of counties, or is operated by a nonprofit service
agency, and that offers programs, services, or both, instead of incarceration in prison, and that are
locally operated and provide a continuum of programming options from pretrial through post-
adjudication.” MCL 791.402(c). MCL 791.408(4) concerns community corrections program
requirements, and states, in relevant part:
(4) A community corrections program must do all of the following:
(a) Provide appropriate sanctions and services as sentencing options for
imposition at the discretion of the court, including community supervision and
programming services for eligible offenders.
(b) Provide improved local services for individuals involved in the criminal
justice system with the goal of reducing the occurrence of repeat criminal offenses
that result in a term of incarceration or detention in jail or prison. [Id. (emphasis
added).]
The Oakland County Sheriff’s ZTP substance abuse program is the type of program provided for
under the Community Corrections Act, MCL 791.401 et seq. While the ZTP is not operated by
the Community Corrections Department, it is listed as an analogous program in the “other
programs” section of the Community Corrections website. Because of defendant’s placement in
the ZTP, as a “community corrections program” under MCL 791.409, the trial court retained
jurisdiction over defendant as a probationer. Thus, the prosecutor’s argument of error on this basis
is unsupported.
The prosecution next contends defendant’s December 19, 2017 sentence was valid, and
therefore, the trial court lacked authority to commute or modify his sentence. We agree with this
contention.
4
MCL 771.8 through MCL 777.13 were repealed, effective December 31, 1979.
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While the trial court had the discretion to elect whether to impose sanctions for defendant’s
violation of the rules for ZTP participation, it did not have the authority to modify defendant’s
valid sentence for defendant’s underlying crime of possession with intent to deliver, MCL
333.7401(2)(a)(iv), as a fourth-offense habitual offender, MCL 769.13. A trial court lacks
authority to reduce a defendant’s valid jail term. People v Moore, 468 Mich 573, 582; 664 NW2d
700 (2003) (“The sentence imposed in 1981 was a valid one, and, thus, the circuit court lacked the
authority to resentence defendant.”). In People v Whalen, 412 Mich 166, 169; 312 NW2d 638
(1981), our Supreme Court “held that a trial court is without authority to set aside a valid sentence
and impose a new one, because to do so would infringe upon the exclusive power of the governor
under the Constitution to commute sentence.” Id., citing Const 1963, art 5, § 14 (“The governor
shall have power to grant reprieves, commutations and pardons after convictions for all offenses,
except cases of impeachment, upon such conditions and limitations as he may direct, subject to
procedures and regulations prescribed by law. He shall inform the legislature annually of each
reprieve, commutation and pardon granted, stating reasons therefor.”) (citations omitted). “[T]he
trial court’s authority to modify a valid sentence . . . is . . . circumscribed.” Comer, 500 Mich at
295, citing People v Barfield, 411 Mich 700, 702-703; 311 NW2d 724 (1981) (“Once the original
and valid sentence of one year in the Detroit House of Correction was imposed the court did not
have the power to release the defendant, nor could the court order that the defendant be continued
on probation at a later date. . . . The circuit judge had no power at that time to vacate the sentences,
because the authority over the prisoners had passed out of his hands by his own order.”) (citation
omitted).
In Whalen, 412 Mich at 169, our Supreme Court explained that “[a] court’s authority to
resentence depends, therefore, on whether the previously imposed sentence is invalid.” It is well
established “that trial courts possess the power to review and correct an invalid sentence.” Comer,
500 Mich at 295. MCR 6.429 governs the correction of invalid sentences, and states, in relevant
part:
(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.
(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. [MCR 6.429 (emphasis added).]
While “MCR 6.429 authorizes either party to seek correction of an invalid sentence upon which
judgment has entered, . . . the rule does not authorize a trial court to do so sua sponte.” Comer,
500 Mich at 297.
MCR 6.435 and MCR 6.429 provide that under specific circumstances, trial courts are
authorized to correct judgments of sentence. “Under [MCR 6.435(A)], a court may correct a
clerical mistake on its own initiative at any time, including after a judgment has entered.” Comer,
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500 Mich at 293. “[T]he court’s ability to correct substantive mistakes under MCR 6.435(B) ends
upon entry of the judgment.” Id. at 294, citing MCR 6.427. Specifically, MCR 6.435 states, 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.
“[W]hen considering MCR 6.435 and MCR 6.429 together, . . . the trial court’s authority to correct
an invalid sentence on its own initiative ends upon entry of the judgment of sentence.” 500 Mich
at 297.
Defendant does not claim he was sentenced on the basis of inaccurate information. Neither
did defendant allege that he was entitled to a reduction in sentence because his December 19, 2017
judgment of sentence contained a clerical or substantive mistake, MCR 6.435(A) and (B), or
because his sentence was invalid, MCR 6.429(B)(1). When the trial court granted defendant’s
motion to reduce his sentence, it did not “declare . . . defendant’s prior sentences invalid on any
recognized ground.” Whalen, 412 Mich at 170. The trial court simply, and without explanation,
terminated defendant’s “remaining sentence,” and ordered defendant’s release from custody. The
record provides no insight into the trial court’s rationale for granting defendant’s motion.
Because defendant’s sentence was valid, the trial court lacked authority to essentially
resentence defendant when it granted defendant’s motion to reduce his sentence, terminating the
balance remaining on his sentence. Moore, 468 Mich at 582 (“The sentence imposed in 1981 was
a valid one, and, thus, the circuit court lacked the authority to resentence defendant.”).5
The prosecution also argues the trial court did not, in granting defendant’s motion, give
defendant a 25% sentence reduction for good behavior under MCL 801.257, and that defendant
was not entitled to a sentence reduction under MCL 801.257, considering his misconduct during
his participation in the ZTP program. We agree.
5
Further problematic is being able to discern from the existing record precisely what occurred
after defendant’s arrest on the bench warrant, including: (a) how long defendant was in jail after
his arrest, (b) whether the trial court was imposing sanctions for defendant’s violation of ZTP rules,
or (c) how defendant’s jail sentence was being calculated. As such, it cannot be determined with
any certainty whether the trial court declined to impose additional jail time for the ZTP violation
or sentenced defendant to a definitive jail sentence on the underlying crime, and then reduced his
sentence without the authority to do so.
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“[T]he Legislature may provide exceptions to th[e] rule [against modifying a valid
sentence].” Comer, 500 Mich at 295 n 40. In arguing the trial court had authority to grant his
motion to reduce his sentence, defendant relies on MCL 801.257, which states in relevant part:
[A] prisoner may receive, if approved by the court, a reduction of ¼ of his or her
term if his or her conduct, diligence, and general attitude merit such reduction.
The prosecution contends the trial court did not provide defendant a 25% reduced sentence
for good behavior under MCL 801.257, when it granted defendant’s motion to reduce his sentence.
Specifically, the prosecution argues defendant’s sentence reduction exceeded 25% of his sentence
to 150 days’ in jail. The prosecution asserts defendant already served 59 days in jail when the trial
court granted defendant’s motion and thereby cancelled 91 days of defendant’s 150 day-sentence,
and that the cancellation represented approximately 60.7% of defendant’s sentence.
The prosecution’s calculation appears to erroneously rely on defendant’s August 7, 2018
sentencing transcript pertaining to defendant’s unrelated case, Case No. 2018-265689-FH. The
record shows that in Case No. 2018-265689-FH, defendant was sentenced, as a fourth-offense
habitual offender, to one year of probation, and 59 days in jail, with 59 days jail credit. As already
indicated, the record does not contain documentation showing the date defendant began to serve
the remaining 148 days of his original 150-day jail sentence in this case, nor does the record show
whether the trial court required defendant serve time in jail after violating ZTP rules. Thus, the
prosecution’s percentage calculation on the basis of an unrelated case is not persuasive.
Further, even if the court used September 24, 2018, as defendant’s new release date, the
trial court percentage of reduction given was 30%, not 25%. Again, even this calculation is
speculative, considering the record does not contain any documents supporting defendant’s
assertion that his new release date was September 24, 2018. Therefore, the trial court’s decision
to grant defendant’s motion to reduce his sentence is not supported by MCL 801.257. Id. (“[A]
prisoner may receive, if approved by the court, a reduction of ¼ of his or her term if his or her
conduct, diligence, and general attitude merit such reduction.”).
In addition to the issue of the exact date of the release date and the percentage exceeding
the statutory percentage, the prosecution contends that the court did not, and upon a review the
record, could not, have found that defendant’s “conduct, diligence, and general attitude merit[ed]
such reduction,” under MCL 801.257, considering defendant violated ZTP rules by using drugs
and failed to return to jail to serve the balance of his sentence. We agree that the court did not
make a finding that it was invoking its authority under MCL 801.257. As noted, not only did
defendant violate ZTP rules with a drug screen that was positive for cocaine, but he also failed to
comply with the court order to present himself to the Oakland County Jail for reinstatement of his
original sentence. The defendant counters that his updated PSIR did not indicate defendant had
any disciplinary problems since he was incarcerated. He also argues that defendant expressed
remorse and gained insight into his substance abuse problems. However, the record does not
contain evidence of an updated PSIR. Additionally, the trial court’s brief comments when granting
defendant’s motion to reduce his sentence did not indicate that the court intended to reduce
defendant’s sentence under MCL 801.257 nor did the facts upon which such an exercise of
authority was invoked.
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III. CONCLUSION
The inadequacy of the record and the resultant inability to discern the legal or factual bases
for the trial court’s decision to grant defendant’s motion to reduce his sentence necessitate remand
to the trial court for further development and explanation of the reasons underlying its ruling.
We therefore vacate the trial court’s ruling and remand to the trial court for explanation of
its legal and factual reasons for granting defendant’s motion to reduce his sentence. We do not
retain jurisdiction.
/s/ Cynthia Diane Stephens
/s/ James Robert Redford
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