Brantley and Comer: Challenging the Post-Sentencing Imposition of Lifetime Electronic Monitoring in Michigan CSC Cases
Under Michigan’s first-degree criminal sexual conduct (CSC) statutes, courts must sentence a defendant to lifetime electronic monitoring. MCL 750.520n provides that a person convicted of CSC first or second degree “committed by an individual 17 years old or older against an individual less than 13 years of age shall be sentenced to lifetime electronic monitoring.” It was not until the Michigan Court of Appeals’ decision in People v Brantley, 296 Mich App 546; 823 NW2d 290 (2012), that courts began sentencing defendants guilty of first-degree CSC to lifetime electronic monitoring regardless of the victim’s age.
In Michigan, some defendants convicted of first-degree CSC and sentenced prior to the Brantley decision were not sentenced to lifetime electronic monitoring if the victim was age 13 or older. These defendants believed that after completing their term of incarceration and term of parole, they would be free from any judicial oversight. However, after Brantley, some courts amended the existing judgments of sentence to include the condition that the defendants be subject to lifetime electronic monitoring. Many courts did so sua sponte, without a hearing and without a motion from either party, after receiving letters from the Michigan Department of Corrections informing them that Brantley required lifetime electronic monitoring in first-degree CSC cases regardless of the victim’s age. The courts justified the amendments by stating that the decision in Brantley applied retroactively.
In 2017, however, the Michigan Supreme Court held in People v Comer, 500 Mich 278; 901 NW3d 553 (2017), that trial courts could not make a substantive change to a defendant’s sentence sua sponte without a motion by one of the parties. Comer held that adding lifetime electronic monitoring, even when required by the statute of conviction, constitutes a substantive change to the judgment of sentence that requires a motion by a party. The Michigan Supreme Court and Court of Appeals have consistently held that Comer applies retroactively, invalidating sentences in which judges spontaneously amended judgments on their own accord whether before or after Comer.
Michigan Court Rule 6.429(A) changed in light of Comer. The rule now states that a court cannot amend or correct an invalid sentence on its own motion, unless it does so within six months of the entry of the judgment and gives the parties an opportunity to be heard. For first-degree CSC defendants, the addition of lifetime electronic monitoring after the judgment of sentence was entered is unlawful, if done sua sponte by the sentencing court without a motion by either party either (1) more than six months from the date of the judgment, or (2) without a hearing.