Petition for Writ of Certiorari — Jeffrey Ricardo Wimberly, Petitioner v. Michigan

Order

Michigan Supreme Court

Lansing, Michigan

October 25, 2024

Elizabeth T. Clement,

165229

Brian K. Zahra

David F. Viviano

Richard H. Bernstein

Megan K. Cavanagh

Elizabeth M. Welch

Kyra H. Bolden,

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

Chief Justice

Justices

SC:165229

COA: 356052

Calhoun CC: 2017-001453-FC

v

JEFFREY RICARDO WIMBERLY,

Defendant-Appellant.

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On order of the Court, the application for leave to appeal the November 22, 2022,

judgment of the Court of Appeals is considered and, pursuant to MCR 7.305(H)(1), in lieu

of granting leave to appeal, we VACATE the November 22, 2022 judgment of the Court

of Appeals and the sentence of the Calhoun Circuit Court, and we REMAND this case to

the circuit court for an amendment of the judgment of sentence to reflect concurrent

sentencing. The circuit court erred by imposing consecutive sentences because the

defendant’s crimes occurred before the Legislature amended MCL 750.520b to authorize

consecutive sentencing. See Peoplev Porter, 495 Mich 990 (2014); 2006 PA 169. Because

consecutive sentencing was not available when defendant committed the offenses for

which he was convicted and consecutive sentencing under MCL 750.520b(3) is a criminal

punishment rather than a civil remedy, the application of MCL 750.520b(3) to defendant

would retroactively increase the punishment for previously committed crimes.

Accordingly, the imposition of consecutive sentencing in this case would violate the ex

post facto provisions of the United States and Michigan Constitutions. People v Betts, 507

Mich 527, 542 (2021). See US Const, art I, § 10; Const 1963, art 1, § 10. In all other

respects, leave to appeal is DENIED, because we are not persuaded that the questions

presented should be reviewed by this Court.

CLEMENT, C.J. (dissenting).

I respectfully dissent from this Court’s order vacating the judgment of the Court of

Appeals and remanding for amendment of the judgment of sentence to reflect concurrent

sentencing. Instead, because I believe that the trial court lacked subject-matter jurisdiction

when it resentenced defendant in December 2020, I would have remanded for a full

resentencing.1

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APP. b

1 I share the majority’s concern that the trial court’s imposition of consecutive sentences

retroactively increased defendant’s punishment in violation of his constitutional ex post

facto protections. However, vacating defendant’s sentence and remanding for a full

Defendant was convicted by jury trial of two counts of first-degree criminal sexual

conduct, and the trial court sentenced defendant as a second-offense habitual offender to

two consecutive prison terms of 39 to 60 years. Thereafter, defendant filed a claim of

appeal in the Court of Appeals. As this Court has discussed previously, this action divested

the trial court of subject-matter jurisdiction over those aspects of the case involved in the

appeal and vested it in the Court of Appeals. See People v Washington, 508 Mich 107,

122-123, 126(2021).

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- On 'November 24, .2020, the Court of Appeals issued its judgment affirming

defendant’s convictions but holding that defendant, was entitled to resentencing. See

People v Wimberly, unpublished per-curiam opinion of the Court of Appeals, issued

November 24, 2020 (Docket No. 342751). This judgment was not effective until ■“after the

expiration of the time for filing an application for leave to appeal in the Supreme Court, or,

if such an application is filed, after the disposition of the case by the Supreme Court[.]”

MCR-7.215(F)(1)(a). See also MCR .7.305(H)(3). Defendant had 56 days to file an

application for leave to appeal in this: Court. See MCR 7.305(C)(5)(a). However, on

December 18, 2020—before the expiration of this period and after defendant filed a notice

of intent to appeal'in this Courts—the trial court resentenced defendant pursuant to the

Court of Appeals judgment. Eventually, defendant timely filed his application for leave to

appeal in this Court, and this CourLdenied leave to appeal. People v-,Wimberly, 509 Mich

937 (2022).3

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In my opinion, the trial court lacked subject-matter jurisdiction to resentence

defendant in December 2020. As in Washington, 508 Mich at 126-127, “[w]hen the Court

of Appeals rendered its .. . judgment, which included a remand for resentencing,

resentencing because of the lack of subject-matter jurisdiction would moot the ex post facto

violation.

2 On November 27, 2020, after the Court of Appeals opinion in this case was issued, this

Court issued Administrative Order No: 2020-21. See AO 2020t21, 506 Mich.lxxxvi

(2020). In light of the inhibitory effects of the COVID-19'pandemic on prison inmates’

abilities to complete the necessary legal proceedings to proceed with a criminal appeal, AO

2020-21 tolled the 56-day filing period for incarcerated defendants acting in propria

persona until June 15, 2021, if they filed'a notice of intent to appeal in this Court. See

Amended Administrative Order No. 2020-21, 507 Mich cxxiii, cxxiv (2021). Defendant

filed such a notice of intent, and, accordingly, defendant’s period to file an application for

leave to appeal in this Court actually extended beyond June 15, 2021.

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3Defendant filed his application for leave to appeal on June 8, 2021. As explained earlier,

this filing was considered a timely application for leave to appeal because AO 2020721

tolled the 56-day window for appeal in MCR 7.305(C)(5)(a).

3

jurisdiction remained with the appellate courts until this Court’s disposition of defendant’s

application for leave to appeal the Court of Appeals’ judgment.” See also People, v George,

399 Mich 638, 640 (1977). Because the trial court here acted before this Court’s resolution

of defendant’s application for leave to appeal the Court of Appeals’ judgment, it acted

without subject-matter jurisdiction, rendering defendant’s new.sentence void ab initio and

requiring resentencing. Washington,'508, Mich at 129;

Perhaps notably, unlike in Washington, defendant had not yet filed his application

for leave to appeal in this Court when the trial court resentenced him. However, I do not

believe that distinction merits a different result. As in Washington, the trial court here was

divested of subject-matter jurisdiction over the aspects of the case involved in appeal upon

defendant’s filing of his claim of appeal in the Court of Appeals. That jurisdiction

remained with the appellate courts until the period for filing an application for leave to

appeal in this Court expired without an application having been filed, or until the resolution

of a filed application for leave to appear in this Court. As in Washington, because the

period for defendant’s application for leave to appeal was-ongoing, the Court of Appeals

judgment—the authority on which the trial court-relied to resentence’defendant—was not

yet effective. See MCR 7.215(F)(1)(a).4 And, again as in Washington, at the .time the trial

court resentenced, defendant, this Court still “had the ability to greatly alter the course of

the case, including obviating the need for-.retrial.’’ Washington, 508. Mich at 125.

Accordingly, whether or not an application was filed; subject-matter jurisdiction had not

yet returned to the trial court.5

4 MCR 7.215(F)(1)(a) also provides that a. Court of Appeals judgment may. be made

effective at an earlier date by Order of the Court of Appeals or Supreme Court, but 'Such'an

order was not entered here'.

, .

5 As stated, I believe that under- Washington a trial court; does not regain subject-matter

jurisdiction—and the Court of Appeals judgment does not become effective—until the time

for filing an application for leave to appeal in this Court has expired, even if a defendant

does not pursue an appeal. Here, however,, defendant had filed a. notice of intent to appeal

in this Court before the trial court’s resentencing, and he ultimately timely filed his

application for leave to appeal in this Court. Those facts make this case more, analogous

to Washington and further support the conclusion that the trial court lacked subject-matter

jurisdiction at resentencing.

.<

By not simply applying Washington, the majority suggests that subject-matter

jurisdiction did not remain with the appellate courts until the period for filing an application

for leave to appeal in this Court expired or until the resolution of a filed application for

leave to appeal. But such a view—i.e., that'subject-matter jurisdiction bounces back and

forth between appellate courts and a trial court—is needlessly complicated. This view

would require us tot believe, that the Court of Appeals is divested of subject-matter

jurisdiction after it issues its judgment and after the resultant 21-day period for a party to

file, a rilotidn'for reconsideration, MCR 7.215(1). Subject-matter jurisdiction would then

return to the trial court—although bound not to act by our court rules, MCR

7.215(F)(1)(a)—until such time as a party filed an application for leave to appeal in this

Court. Upon filing, the trial court would be again divested of subject-matter jurisdiction

and subject-matter jurisdiction would be vested in this Court. It is much easier to

Understand a rule that a trial court is divested of subject-matter jurisdiction upon a claim of

appeal and that subject-matter jurisdiction remains with the appellate courts until the

resolution of that appeal.

’

In sum, as I have opined previously, while requiring a full resentencing here, where

this Court ultimately denied defendant’s application for leave to appeal anyway, may seem

cumbersome, “a general rule that lower courts lose subject-matter jurisdiction over a case

while an appeal pends . . . encourages overall efficiency and just makes sense.” People v

Scott,

Mich

,

(June 3,2024) (DocketNo. 164790) (CLEMENT, C.J., dissenting);

slip op at 6. Therefore, I dissent.

Cavanagh and Welch, JJ., join the statement of Clement, C. J.

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t!022

I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify, that the .

foregoing is a true and complete copy of the order entered at the direction of the Court.

October 25,2024

Clerk

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Order

Michigan Supreme Court

Lansing, Michigan

December 26, 2024

Elizabeth T. Clement,

Chief Justice

165229(87)

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JEFFREY RICARDO WIMBERLY,

Defendant-Appellant.

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SC: 165229

COA: 356052

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Calhoun CC: 2017-001453-FC

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PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

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Brian K. Zahra

David F. Viviano

Richard H. Bernstein

Megan K. Cavanagh

Elizabeth M. Welch

' Kyra H. Bolden,

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•, On order of the Court, the motion for reconsideration of this Court’s October 25,

2024 order is considered, and .it is DENIED, because we are not persuaded that

reconsideration of our previous order is warranted. MCR 7.311(G).

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I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the

foregoing is a true and complete copy of the order entered at the direction of the Court.

December 26,2024

tl218

Clerk

Justices