PEOPLE OF MI V CURTIS PARISHAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
January 15, 2009
Jackson Circuit Court
LC No. 00-005888-FC
Advance Sheets Version
Before: Murray, P.J., and O’Connell and Davis, JJ.
Defendant appeals by leave granted his amended sentence of 210 months to 360 months
of imprisonment, with 2,093 days of jail credit. Defendant pleaded guilty to one count of firstdegree criminal sexual conduct, MCL 750.520b(1)(b)(i) (victim at least 13 but less than 16 years
of age and member of same household), and he was originally sentenced to imprisonment for
126 months to life.1 Several years later, the Department of Corrections noticed that this was an
invalid sentence and advised the trial court of that fact. Defendant was then resentenced by a
successor judge, the judge who imposed his original sentence having since retired. We affirm.
Defendant’s original sentence violated MCL 769.9(2), which provides:
In all cases where the maximum sentence in the discretion of the court
may be imprisonment for life or any number or term of years, the court may
impose a sentence for life or may impose a sentence for any term of years. If the
sentence imposed by the court is for any term of years, the court shall fix both the
minimum and the maximum of that sentence in terms of years or fraction thereof,
and sentences so imposed shall be considered indeterminate sentences. The court
shall not impose a sentence in which the maximum penalty is life imprisonment
with a minimum for a term of years included in the same sentence.
Defendant pleaded guilty in exchange for the prosecutor agreeing not to proceed on an habitual
offender count. At that time, defendant affirmed to the trial court that he understood that he
could be imprisoned for life or any term of years. Defendant’s conviction is not at issue in this
The original sentence contained a minimum of a term of years and a maximum of life. It is
therefore not disputed that it was invalid. Defendant now contends that although the trial court
was obligated to impose a new and valid maximum term on resentencing, the trial court was not
permitted to impose a longer minimum term. We disagree.
Ultimately at issue is whether a violation of MCL 769.9(2) renders invalid the entire
sentence or only part of it. Where a sentence is partially invalid, only the invalid part is to be
vacated for resentencing; however, a wholly invalid sentence is to be vacated in its entirety, and
resentencing is to be de novo. People v Williams (After Second Remand), 208 Mich App 60, 6365; 526 NW2d 614 (1994).
This Court has previously held that a violation of MCL 769.9(2) requires vacation of the
entire sentence and a remand for resentencing. See People v Foy, 124 Mich App 107, 113; 333
NW2d 596 (1983); People v Boswell, 95 Mich App 405, 410-411; 291 NW2d 57 (1980); People
v Holcomb, 47 Mich App 573, 590; 209 NW2d 701 (1973), rev’d on other grounds 395 Mich
326 (1975); People v Harper, 39 Mich App 134, 142-143; 197 NW2d 338 (1972). These cases
were decided before the enactment of the “first out rule,” MCR 7.215(J)(1), and technically do
not bind us, and they do not contain any explicit consideration of the precise point now before
us. However, we agree with the above cases that a violation of MCL 769.9(2) renders a sentence
wholly invalid. The problem is not that the maximum exceeded some particular limit, but rather
that the original sentence was an impermissible combination of terms. Therefore, it must be
vacated in its entirety for a resentencing de novo.
We conclude that the trial court was not precluded from imposing a new sentence with a
longer minimum term. Furthermore, a different judge imposed defendant’s second sentence, so
the presumption of vindictiveness where a defendant is resentenced to a longer term does not
apply. People v Grady, 204 Mich App 314, 317; 514 NW2d 541 (1994).
We therefore affirm defendant’s sentence.
/s/ Alton T. Davis
/s/ Christopher M. Murray
/s/ Peter D. O’Connell