People v. Clark, Docket No. 322852.

• Citation: 315 Mich.App. 219,888 N.W.2d 309
• Decision Date: 19 April 2016
• Docket Number: Docket No. 322852.
• Parties: PEOPLE v. CLARK.
• Court: Court of Appeal of Michigan (US)

315 Mich.App. 219

888 N.W.2d 309

PEOPLE

v.CLARK.

Docket No. 322852.

Court of Appeals of Michigan.

Submitted March 8, 2016, at Grand Rapids.

Decided April 19, 2016, at 9:30 a.m.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Ronald J. Frantz, Prosecuting Attorney, and Gregory J. Babbitt, Assistant Prosecuting Attorney, for the people.

Dory A. Baron, West Bloomfield, for defendant.

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

MARKEY, J.

Defendant appeals by leave granted a judgment of sentence in which the trial court ordered defendant, as a repeat drug offender, MCL 333. 7413(2), to serve 38 to 240 months in prison for his plea-based conviction of delivery of less than 50 grams of cocaine, MCL 333.7401(2)(a)(iv ). The court ordered the sentence to be served consecutively to a federal sentence he was serving for a previous conviction. Defendant argues that because his federal supervised release did not constitute "parole" under MCL 768.7a(2), the trial court erred by ordering that his sentence in this case run consecutively to the federal sentence. Defendant also asserts the trial court erred by not awarding him credit for the time he served before sentencing. We agree in part and remand for resentencing.

I. SUMMARY OF FACTS AND PROCEEDINGS

As a result of a police investigation between July 2013 and September 2013, defendant was charged with delivering less than 50 grams of cocaine, MCL 333.7401(2)(a)(iv ), and possession of marijuana, MCL 333.7403 (2)(d). The prosecution notified defendant that these charges were subject to second-offense sentence enhancement pursuant to MCL 333.7413(2).

At the time of defendant's arrest, he was on federal supervised release because of his 2005 conviction for possession of cocaine and being a felon in possession of a firearm. Defendant was sentenced on these federal offenses to 110 months in federal prison followed by a three-year term of supervised release.¹ Defendant remained incarcerated until his term of supervised release began on August 16, 2012; the term was scheduled to expire on August 5, 2015.

On February 28, 2014, defendant pleaded guilty in the present case to delivery of less than 50 grams of cocaine, second offense, in exchange for the dismissal of the possession-of-marijuana charge. The prosecutor also agreed to not bring further charges in this case (e.g., fleeing and eluding).

In establishing a factual basis for his plea, defendant admitted that he delivered cocaine to another individual on July 2, 2013, and that he had a prior conviction of possession of marijuana. The trial court accepted defendant's guilty plea.

At his sentencing proceeding on May 14, 2014, defendant admitted that he had been on "parole" at the time he committed the charged offense. But defendant also stated that he believed the recommended sentence was "absurd" because he was never informed about a "mandatory consecutive sentence." The trial court explained to defendant that Michigan law required "any offense committed while on parole status ... be consecutive to parole." Thus, when imposing sentence, the trial court explained that the ordered period of imprisonment "begins upon the conclusion of [the sentence for] the crime for which you were on parole."

On May 23, 2014, defendant moved in propria persona for resentencing on the basis that he was not on parole at the time of sentencing. The trial court denied defendant's motion on May 29, 2014. In denying the motion, the trial court noted that defendant's presentence investigation report (PSIR) confirmed that defendant "was on parole status" when he committed this offense. The PSIR also states that defendant was sentenced in federal court to 20 months' imprisonment as a result of a "parole violation" for his involvement in the instant offense.

Defendant filed a delayed application for leave to appeal in this Court on July 23, 2014. On August 27, 2014, this Court denied leave to appeal "for lack of merit in the grounds presented." Defendant subsequently filed an application for leave to appeal in the Michigan Supreme Court, which issued an order directing the prosecutor to file an answer to defendant's application. After plaintiff did so, the Court considered defendant's application for leave to appeal and remanded to this Court "for consideration as on leave granted." People v. Clark, 498 Mich. 880, 869 N.W.2d 273 (2015).

II. ANALYSIS

A. PRESERVATION OF ISSUES

To preserve a sentencing issue for appeal, a defendant must raise the issue "at sentencing, in a proper motion for resentencing, or in a proper motion to remand filed in the court of appeals." MCR 6.429(C) ; see also People v. McLaughlin, 258 Mich.App. 635, 670, 672 N.W.2d 860 (2003). In a motion for resentencing, defendant argued that he was not subject to consecutive sentencing because he was not on "parole" at the time the offense was committed. Therefore, this issue is preserved.

However, defendant's sentence-credit argument is unpreserved because he did not request credit for time served at sentencing or object to the trial court order that denied him sentence credit. See People v. Meshell, 265 Mich.App. 616, 638, 696 N.W.2d 754 (2005).

B. STANDARD OF REVIEW

A consecutive sentence cannot be imposed under Michigan law in the absence of statutory authority. People v. Chambers, 430 Mich. 217, 222, 421 N.W.2d 903 (1988). Therefore, whether a trial court may impose consecutive sentences is a question of statutory interpretation, which is reviewed de novo. People v. Gonzalez, 256 Mich.App. 212, 229, 663 N.W.2d 499 (2003).

With respect to defendant's argument regarding sentence credit, this Court's review is limited to plain error affecting substantial rights because the issue was not preserved. People v. Carines, 460 Mich. 750, 763, 597 N.W.2d 130 (1999). Relief is available only when (1) an error occurred, (2) the error was plain, meaning clear or obvious, and (3) the plain error affected substantial rights, meaning it affected the outcome of the proceedings. Id. Additionally, reversal is warranted only when the plain, forfeited error resulted in the conviction of an actually innocent defendant or when the error seriously affected the fairness, integrity, or public reputation of the judicial proceedings. Id. (quotation marks and citation omitted).

C. DISCUSSION

Because we conclude that a federal term of "supervised release" is not the same as "parole" under Michigan's criminal justice system, we necessarily conclude that MCL 768.7a(2) does not provide statutory authority for defendant's sentence to run consecutively to the federal sentence for which he was on supervised release when he committed the instant offense. Consequently, we remand this case to the trial court for resentencing. With respect to defendant's argument that the trial court erred by denying him sentence credit, however, defendant has failed to establish plain error warranting relief.

The PSIR states that defendant was sentenced to "110 months with 3 years SRT" for his federal convictions. A three-year term of supervised release is consistent with the provisions of 18 U.S.C. 3583(b). Despite this reference to supervised release, the remainder of the PSIR refers only to defendant's being on "federal parole." Likewise, at sentencing the parties—including defendant—used the term "federal parole," as opposed to supervised release when discussing his status at the time he committed the instant offense. The parties agree that this was a mischaracterization in that at the time he committed the instant offense, defendant was on federal supervised release with respect to his federal convictions.

There is currently no binding caselaw addressing whether a consecutive sentence may be ordered under MCL 768.7a(2) for an individual who was on federal supervised release, as opposed to parole, at the time of the offense. A number of unpublished opinions of this Court have suggested that parole and federal supervised release are not identical. See, e.g., People v. Kirk, unpublished opinion per curiam of the Court of Appeals, issued July 10, 2014 (Docket No. 314416), 2014 WL 3406669, at *5 ("Presuming, without deciding, that the trial court clearly erred when it found that [the defendant] was on parole rather than supervised release....") (emphasis added); People v. Shaw, unpublished opinion per curiam of the Court of Appeals, issued July 2, 1999 (Docket No. 210717), 1999 WL 33439152, at *4 (reviewing the defendant's argument "under the assumption that he was not subject to ... consecutive sentencing on account of his federal supervised release status"). And one former justice of our Supreme Court opined in her dissent from an order denying a defendant's application for leave to appeal that the same argument advanced by defendant in this case was meritorious in that case. See People v. Williams, 463 Mich. 942, 621 N.W.2d 214 (2000) ( CORRIGAN, J., dissenting) ("[The] defendant argues that MCL 768.7a(2)... does not prescribe consecutive sentencing for a state offense he committed while on ‘supervised release’ rather than ‘parole’ from a federal term of imprisonment. The plain text of the statute supports [the] defendant's view.").

In Michigan, a consecutive sentence may be imposed only if specifically authorized by statute. Chambers, 430 Mich. at 222, 421 N.W.2d 903 ; People v. Stead, 270 Mich.App. 550, 551, 716 N.W.2d 324 (2006).

When the trial court ordered defendant's current delivery of cocaine sentence to run consecutively to his federal sentence, it relied on MCL 768.7a(2), which provides:

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. [Emphasis added.]

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