People v. Siterlet

• Decision Date: 27 December 2012
• Docket Number: Docket No. 308080.
• Parties: PEOPLE v. SITERLET.
• Court: Court of Appeal of Michigan — District of US

299 Mich.App. 180

829 N.W.2d 285

PEOPLE

v.SITERLET.

Docket No. 308080.

Court of Appeals of Michigan.

Submitted Dec. 11, 2012, at Lansing.

Decided Dec. 27, 2012, at 9:15 a.m.

Bill Schuette, Attorney General, John J. Bursch, Solicitor General, Richard A. Bandstra, Chief Legal Counsel, Michelle Ambrozaitis, Prosecuting Attorney, and Laura A. Cook, Assistant Attorney General, for the people.

State Appellate Defender (by Christopher M. Smith), for defendant.

Before: WHITBECK, P.J., and FITZGERALD and BECKERING, JJ.

PER CURIAM.

Defendant, Kris Edward Siterlet, appeals as of right his conviction following a jury trial of operating a vehicle while visibly impaired, third offense, MCL 257.625(3) and (11)(c).¹ At issue is whether the trial court could sentence defendant as a fourth-offense habitual offender, MCL 769.12, after the prosecution twice amended the felony information to change defendant's habitual-offender level. The prosecution originally charged defendant as a fourth-offense habitual offender. However, the prosecution amended the felony information during plea negotiations to charge defendant as a third-offense habitual offender, MCL 769.11. After defendant rejected the prosecution's plea offers, the prosecution pursued the case as if defendant was charged as a fourth-offense habitual offender, to which defendant did not object. Defendant was tried and convicted of operating a vehicle while visually impaired, third offense. Four days after trial, the prosecution filed a second amended felony information to increase defendant's habitual-offender level back to fourth-offense status. Defendant did not object to this amendment. The trial court sentenced him as a fourth-offense habitual offender to 46 months to 25 years in prison.

Defendant argues on appeal that the trial court erred by sentencing him as a fourth-offense habitual offender because the information in place during the plea negotiations and at trial alleged that he was a third-offense habitual offender. We hold that the trial court erred by sentencing defendant as a fourth-offense habitual offender because the prosecution improperly amended the felony information to increase defendant's habitual-offender level after the 21–day period provided for in MCL 769.13(1). However, we also hold that defendant is not entitled to relief with regard to this unpreserved argument because the trial court's error was not plain and did not seriously affect the fairness, integrity, or public reputation of the judicial proceedings. Therefore, we affirm.

I. PERTINENT FACTS

On October 15, 2010, the police arrested defendant for driving while impaired; Breathalyzer tests indicated that defendant's blood alcohol level was 0.11. In a felony information filed on November 19, 2010, the prosecution charged defendant as a fourth-offense habitual offender with operating a vehicle while visibly impaired, third offense, and operating a vehicle with a suspended or revoked license, second offense. On June 15, 2011, the prosecution amended the felony information to charge defendant as a third-offense habitual offender. The amendment occurred during plea negotiations, in which the prosecution first offered to charge defendant as a third-offense habitual offender and later offered to charge defendant as a second-offense habitual offender. However, defendant rejected these plea offers.

On August 18, 2011, the prosecution filed three motions in the trial court referring to how defendant was then charged as an habitual offender. In a motion in limine, the prosecution alleged that defendant was charged at that time as a third-offense habitual offender. However, in both a motion to suppress evidence and a motion to suppress nonexpert testimony, the prosecution alleged that defendant was charged at that time as a fourth-offense habitual offender. In response to the prosecution's motion to suppress nonexpert testimony, defendant admitted the prosecution's allegation that he was charged at that time as a fourth-offense habitual offender.

The amended information charging defendant as a third-offense habitual offender remained unchanged during defendant's trial. On the first day of trial, defendant pleaded guilty of operating a vehicle while his license was suspended or revoked, second offense. A jury then convicted him of operating a vehicle while visibly impaired, third offense. On September 27, 2011 (four days after trial), the prosecution filed a second amended felony information to increase defendant's habitual-offender level back to fourth-offense status. Defendant did not object to this amendment, and on December 5, 2011, the trial court sentenced him as a fourth-offense habitual offender.

II. ANALYSIS

Defendant's only argument on appeal is that the trial court erred by sentencing him as a fourth-offense habitual offender. Defendant did not raise this issue before the trial court; therefore, our review is for plain error. See People v. Carines, 460 Mich. 750, 763–764, 597 N.W.2d 130 (1999). To avoid issue forfeiture under the plain-error rule, defendant must prove the following: (1) there was an error, (2) the error was plain, i.e., clear or obvious, and (3) the plain error affected substantial rights, i.e., the outcome of the lower-court proceedings. Id. at 763, 597 N.W.2d 130. Once defendant has established these three requirements, this Court “must exercise its discretion in deciding whether to reverse.” Id. Reversal is warranted only if the error seriously affected the fairness, integrity, or public reputation of the judicial proceedings or resulted in the conviction of an actually innocent person. Id. A plain error that affects substantial rights does not necessarily result in the conviction of an actually innocent person or seriously affect the fairness, integrity, or public reputation of judicial proceedings. See People v. Vaughn, 491 Mich. 642, 666–667, 821 N.W.2d 288 (2012) (holding that the closure of a courtroom during jury selection, a structural error, did not seriously affect the fairness, integrity, or public reputation of the judicial proceedings); see also Johnson v. United States, 520 U.S. 461, 469–470, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (holding that a plain error did not seriously affect the fairness, integrity, or public reputation of the judicial proceedings even though the error was assumed to have affected substantial rights).

MCL 769.13 governs the procedure for seeking sentence enhancement as an habitual offender. MCL 769.13(1) states the following:

In a criminal action, the prosecuting attorney may seek to enhance the sentence of the defendant as provided under [MCL 769.10, MCL 769.11, or MCL 769.12], by filing a written notice of his or her intent to do so within 21 days after the defendant's arraignment on the information charging the underlying offense or, if arraignment is waived, within 21 days after the filing of the information charging the underlying offense.

The purpose of the 21–day–notice rule is to give the defendant notice of the potential consequences should a conviction arise. See People v. Shelton, 412 Mich. 565, 569, 315 N.W.2d 537 (1982). The 21–day–notice rule is a bright-line test that must be strictly applied. People v. Morales, 240 Mich.App. 571, 575–576, 618 N.W.2d 10 (2000).

Under MCL 767.76,

[a]n information may be amended at any time before, during, or after trial to cure any defect, imperfection, or omission in form or substance, including a variance between the information and the proofs, as long as the accused is not prejudiced by the amendment and the amendment does not charge a new crime. [People v. Higuera, 244 Mich.App. 429, 444, 625 N.W.2d 444 (2001), citing MCL 767.76.]

Similarly, MCR 6.112(H) provides that “[t]he court before, during, or after trial may permit the prosecutor to amend the information unless the proposed amendment would unfairly surprise or prejudice the defendant.”

This Court has harmonized MCL 769.13 and MCL 767.76 to determine that the prosecution may not amend an information after the 21–day period provided in MCL 769.13(1) to include additional prior convictions and, therefore, increase potential sentence consequences. See People v. Ellis, 224 Mich.App. 752, 756–757, 569 N.W.2d 917 (1997); People v. Hornsby, 251 Mich.App. 462, 472–473, 650 N.W.2d 700 (2002). In Ellis, the prosecutor promptly filed a supplemental information charging the defendant as a second-offense habitual offender. Ellis, 224 Mich.App. at 755, 569 N.W.2d 917. About six weeks later, however, the prosecutor amended the information to charge the defendant as a fourth-offense habitual offender by alleging two additional prior convictions. Id. This Court held that the trial court erred by allowing the amended information. Id. at 755, 757, 569 N.W.2d 917. We explained that a “supplemental information may be amended outside the [21–day] statutory period only to the extent that the proposed amendment does not ... relate to additional prior convictions not included in the timely filed supplemental information.” Id. at 757, 569 N.W.2d 917. We emphasized that “[t]o hold otherwise would be to permit prosecutors to avoid making the necessary ‘prompt’ decision regarding the level of supplementation, if any, they wish to pursue and would materially alter the ‘potential consequences' to the accused of conviction or plea.” Id., quoting Shelton, 412 Mich. at 569, 315 N.W.2d 537.

Significantly, the Ellis Court distinguished its case from People v. Manning, 163 Mich.App. 641, 415 N.W.2d 1 (1987), “where the Court upheld an amendment of a supplemental information outside the [applicable notice period].” Ellis, 224 Mich.App. at 757 n. 2, 569 N.W.2d 917. The Ellis Court explained that “[i]n Manning, the amended supplemental information corrected an error in the specific convictions that formed the basis of the habitual offender, fourth offense charge. However, the amendment did not elevate the level of the supplemental charge.” Id.

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