Opinion
No. 346383
04-25-2019
PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Thomas Ray BEARD, Defendant-Appellee.
Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, Jessica R. Cooper, Prosecuting Attorney, Thomas R. Grden, Appellate Division Chief, and Joshua J. Miller, Assistant Prosecuting Attorney, for the people. State Appellate Defender (by Michael L. Mittlestat) for Thomas R. Beard.
Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, Jessica R. Cooper, Prosecuting Attorney, Thomas R. Grden, Appellate Division Chief, and Joshua J. Miller, Assistant Prosecuting Attorney, for the people.
State Appellate Defender (by Michael L. Mittlestat) for Thomas R. Beard.
Before: Shapiro, P.J., and Beckering and M. J. Kelly, JJ.
Shapiro, P.J.
The prosecution appeals by leave granted an amended judgment of sentence entered by the trial court. For the reasons stated in this opinion, we vacate the amended judgment of sentence.
People v. Beard , unpublished order of the Court of Appeals, entered December 7, 2018 (Docket No. 346383).
I
While on parole for an unarmed-robbery conviction, defendant was arrested for domestic violence. He pleaded no contest to domestic violence, third offense, MCL 750.81(5), which is a felony. On February 15, 2018, the trial court sentenced defendant to a year in jail. At sentencing, the court stated that the sentence was "consecutive to a parole violation." The judgment of sentence also stated, "Sentence consecutive to parole violation." (Capitalization omitted.) But the judgment of sentence provided that defendant's sentence would begin on February 15, 2018.
The judgment of sentence erroneously cites MCL 750.81(4) as the offense for which defendant was convicted.
As a result of his parole violation, defendant returned to prison to serve the remaining few months of his prior sentence for unarmed robbery. He was discharged on August 17, 2018, and transferred to the Oakland County jail.
On October 17, 2018, defendant moved to amend the judgment of sentence or for the issuance of a writ of habeas corpus. Defendant explained that the Oakland County jail was interpreting the judgment of sentence to mean that his domestic-violence sentence began when he arrived at the jail on August 17, not on February 15 as provided by the judgment of sentence. Defendant requested that the trial court remove the "consecutive to parole violation" language from the judgment of sentence.
After hearing oral argument, the trial court agreed with defendant that his sentence for domestic violence should have begun to run on the date of sentencing. Accordingly, it granted defendant's motion and amended the judgment of sentence to provide, "Sentence consecutive to parole violation. Defenant [sic] shall begin to accrue time on the 365 day sentence on February 15, 2018." (Capitalization omitted.)
II
A
As an initial matter, the prosecution argues that defendant's motion to amend the judgment of sentence was untimely. The prosecution did not raise this issue before the trial court but contends on appeal that the issue has not been waived because it pertains to the trial court's jurisdiction. The prosecution does not provide caselaw holding that a trial court lacks subject-matter jurisdiction to consider untimely posttrial motions. However, even if we accept this premise as true, we conclude that defendant's motion was not untimely.
The prosecution argues that defendant's motion should be construed as a motion to correct an invalid sentence, which generally must be filed within six months of the date the judgment of sentence was entered. See MCR 6.429(B)(3)(a). We conclude, however, that defendant's motion to amend the judgment of sentence is better understood as a motion to correct a clerical mistake, i.e., an error "arising from oversight or omission," which may be brought at any time. See MCR 6.435(A).
To determine the nature of a filing, we look beyond the party's labels and focus on the substance of the filing. See Altobelli v. Hartmann , 499 Mich. 284, 299, 884 N.W.2d 537 (2016). In this case, it is clear that defendant was not seeking to correct an invalid sentence imposed by the trial court but rather was attempting to enforce the imposed sentence. The trial court agreed with defendant that the Oakland County jail's interpretation of the "sentence begins" date was incorrect and amended the judgment of sentence accordingly. Further, there was plainly an ambiguity in the original judgment of sentence because the imposed sentence was consecutive to the parole violation but also set to run from the date of sentencing. Indeed, both defendant and the prosecution requested an amendment of the judgment of sentence. For those reasons, we conclude that defendant's motion was brought to address an oversight or omission in the judgment of sentence and is thus best viewed as a motion to correct a mistake. As such, the motion was not untimely.
B
The prosecution also argues that the trial court misinterpreted MCL 768.7a(2) by amending the judgment so that defendant's jail sentence for the domestic-violence conviction ran from the date of sentencing. We agree.
We review de novo questions of law, including statutory interpretation. People v. Pace , 311 Mich. App. 1, 4, 874 N.W.2d 164 (2015).
MCL 768.7a(2) requires consecutive sentencing for felonies committed while on parole:
(2) If a person is convicted and sentenced to a term of imprisonment for a felony committed while the person was on parole from a sentence for a previous offense, the term of imprisonment imposed for the later offense shall begin to run at the expiration of the remaining portion of the term of imprisonment imposed for the previous offense.
Accordingly, "[a] parolee who is sentenced for a crime committed while on parole must serve the remainder of the term imposed for the previous offense before he serves the term imposed for the subsequent offense." People v. Seiders , 262 Mich. App. 702, 705, 686 N.W.2d 821 (2004). Defendant committed a felony while he was on parole for unarmed robbery. He returned to prison to serve the remaining term of his imprisonment for unarmed robbery, which he completed on August 17, 2018. Therefore, per MCL 768.7a(2), defendant's jail sentence for domestic violence should not have begun to run until August 17, 2018.
The issue is complicated, however, by Wayne Co. Prosecutor v. Dep't of Corrections , 451 Mich. 569, 548 N.W.2d 900 (1996), and the degree to which the holding in that case is applicable here. In Wayne Co. Prosecutor , the Supreme Court held that for purposes of becoming eligible for parole, the minimum sentence for the offense committed while on parole effectively begins to run on the date of sentencing. Id . at 579-581, 548 N.W.2d 900. In that case, the prosecutor argued that the recently enacted MCL 768.7a(2) required a defendant to serve the entire remaining maximum sentence on the prior offense, plus the minimum sentence for the offense committed while on parole, before again becoming eligible for parole. See id . at 571-572, 574, 548 N.W.2d 900. This was at odds with MCL 791.234(3), which provides that a defendant's new parole eligibility date is determined by adding the minimum terms for the previous and subsequent offenses, and that the defendant's new maximum term is the sum of the maximum terms for each offense:
At that time, MCL 791.234(3) was found at MCL 791.234(2).
(3) If a prisoner other than a prisoner subject to disciplinary time is sentenced for consecutive terms, whether
received at the same time or at any time during the life of the original sentence, the parole board has jurisdiction over the prisoner for purposes of parole when the prisoner has served the total time of the added minimum terms, less the good time and disciplinary credits allowed by statute. The maximum terms of the sentences must be added to compute the new maximum term under this subsection, and discharge must be issued only after the total of the maximum sentences has been served less good time and disciplinary credits, unless the prisoner is paroled and discharged upon satisfactory completion of the parole.
The practical effect of MCL 791.234(3) is that the minimum term for the consecutive sentence begins to run immediately, and the defendant will become eligible for parole after serving the combined minimum sentences. See Wayne Co. Prosecutor , 451 Mich. at 580, 548 N.W.2d 900. The Supreme Court rejected the argument that MCL 768.7a(2) had implicitly repealed MCL 791.234(3). Id . at 575, 582, 548 N.W.2d 900. As the Court aptly summarized in People v. Idziak , 484 Mich. 549, 558, 773 N.W.2d 616 (2009) :
[I]n Wayne Co. Prosecutor , we rejected the prosecutor's argument that MCL 768.7a(2) requires a parolee to serve his entire original maximum sentence, plus his new minimum sentence, before becoming eligible for parole, and held that the [Department of Correction's] practice of calculating the new parole eligibility date, as mandated by MCL 791.234(3), was consistent with MCL 768.7a(2).
Defendant argues that Wayne Co. Prosecutor compels the conclusion that he should receive credit against his consecutive jail sentence while serving the balance of his incarceration on the parole violation. However, we do not read Wayne Co. Prosecutor so broadly. That case concerned the timing of a defendant's eligibility for parole following imposition of a consecutive, indeterminate prison term. In this case, defendant did not receive an indeterminate prison sentence with a minimum and maximum term. He was instead sentenced to a fixed jail term for which he is not eligible for parole, and MCL 791.234(3) is therefore not applicable. Defendant's sentence is squarely controlled by MCL 768.7a(2).
A defendant serving a jail sentence, whether concurrent or consecutive, remains eligible for good-time credit as provided for in MCL 51.282. However, an early release from jail based on good time earned is not a parole.
In addition to Wayne Co. Prosecutor , defendant relies on Idziak . However, Idziak held that parolees do not receive jail credit on the new offense for time served before sentencing. Idziak , 484 Mich. at 562, 773 N.W.2d 616. Thus, Idziak's holding does not lend additional support to defendant's position. In sum, the trial court erred by ruling that defendant's consecutive jail sentence ran from the date of sentencing. When a jail sentence is made to run consecutively to an indeterminate prison sentence, the jail sentence does not begin to run until the defendant is paroled from the prison sentence or completes the maximum term of imprisonment. Accordingly, defendant's jail sentence for the new offense did not begin to run until his release from prison.
Defendant had only a few months remaining on the maximum term of his unarmed-robbery conviction, so he did not have another opportunity for parole.
Vacated and remanded for correction of the judgment of sentence. We do not retain jurisdiction.
Beckering and M.J. Kelly, JJ., concurred with Shapiro, P.J.