Amending an invalid sentence; MCR 6.429(A); Whether the addition of lifetime electronic monitoring (LEM) to defendant’s sentence for a 2011 conviction violated ex post facto protections; Retroactive applicability of People v Comer; Ineffective assistance of counsel; Advice in plea negotiations; Prejudice; Lafler v Cooper; Alleged miscalculation of the OV score at the original sentencing; Judgment of sentence (JOS)

The court held that defendant’s 2024 amended JOS including LEM was valid. It also rejected his claim that adding LEM to his sentence for a 2011 conviction violated ex post facto protections, concluding that applying Comer did not violate his right to due process. His ineffective assistance of counsel claims related to advice in plea negotiations failed for lack of prejudice. Finally, any alleged error in the OV scoring at his original sentencing was cured when he was “resentenced, at his request, with reference to guidelines calculations” he did not challenge. He was convicted of kidnapping, CSC I, and CSC II. The trial court initially sentenced him in 2011, as a third-offense habitual offender, to 25 to 50 years for the kidnapping and the CSC I convictions, and 10 to 15 years for the CSC II. In 2023, it amended the JOS to include LEM. After a resentencing hearing in 2024, it issued a second amended JOS, “which continued the original sentence plus LEM.” On appeal, defendant’s appellate counsel asserted the trial court did not have the authority to amend defendant’s judgment in 2024 to add LEM. The court noted that because “the trial court was required to impose LEM, and the original [JOS] did not include that mandatory facet, defendant’s original sentence was invalid.” While appellate counsel was correct that the original invalid sentence “could properly be amended sua sponte only until” 1/13/12, when the trial court amended the JOS in 2023, defendant had a pending “request to amend his sentence to include LEM.” After he moved “to add LEM to his sentence, and after [his] attorney’s motion for resentencing, the trial court held a hearing before issuing its final” 2024 amended JOS, again including LEM. “MCR 6.429(A) provides that the trial court may correct an invalid sentence on a motion from either party, and in that circumstance the rule imposes no timing limitations[.]” As to his ex post facto argument, the court concluded that because the statutes mandating LEM for CSC I “convictions such as defendant’s were in effect at the time of [his] original sentencing, and there was no precedent stating that LEM” did not apply to CSC I “sentences involving a victim older than 13 years, and because defendant does not argue otherwise, . . . Comer neither announced a new rule of law, nor was unexpected or indefensible as applied to defendant.” Affirmed.