People v. Siterlet
People v. Siterlet
Opinion of the Court
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).
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 publicreputation 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.
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 NW2d 130 (1999). To avoid issue forfeiture under the plain-error rule, defendant must prove the following: (1) there was an error, (2)
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
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 NW2d 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 NW2d 917 (1997); People v Hornsby, 251 Mich App 462, 472-473; 650 NW2d 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. 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. We explained
Significantly, the Ellis Court distinguished its case from People v Manning, 163 Mich App 641; 415 NW2d 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. The Ellis Court explained that “[i\nManning, 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.
Several years after Ellis, this Court reaffirmed the rule that “the prosecutor may not amend a notice to seek enhancement to include additional prior convictions after the twenty-one-day period,” and we again expressly distinguished the circumstances in Ellis from cases in which the effect of an amendment is only “to correct an error in the initial notice that did not otherwise affect the level of [a] defendant’s potential sentence enhancement.” Hornsby, 251 Mich App at 470-471. In Hornsby, the prosecution initially filed a notice that it intended to enhance the defendant’s sentence under MCL 769.11 (third-offense habitual offender) and listed two prior convictions. Id. at 469. One month later, the prosecution amended the notice
Consistently with these decisions, we conclude that the trial court erred by sentencing defendant as a fourth-offense habitual offender. Well after the expiration of the 21-day period provided in MCL 769.13(1), the prosecution filed a second amended felony information to increase defendant’s habitual-offender level. This case does not involve an error or defect in the June 15, 2011, felony information. As the prosecution explained on appeal, it intentionally decreased defendant’s habitual-offender level in the June 15, 2011, felony information in an attempt to obtain a plea. Furthermore, the posttrial, presentencing amendment of the June 15, 2011, felony information sought to “impose more severe adverse consequences” on defendant by increasing his habitual-offender level and, therefore, his potential sentence. Hornsby, 251 Mich App at 472. Specifically, the increase in the habitual-
The prosecution argues that neither error nor prejudice occurred in this case because defendant knew both that he qualified as a fourth-offense habitual offender and that the prosecution would change his habitual-offender level back to fourth-offense status if he rejected the prosecution’s plea offer. We reject this argument. While the first felony information notified defendant that he qualified as a fourth-offense habitual offender, the first felony information was amended, i.e., replaced, to actually charge defendant as a third-offense habitual offender. Moreover, the prosecution’s claim assumes that it could amend the June 15, 2011, felony information to increase defendant’s habitual-offender level to fourth-offense status. As previously discussed, the prosecution could not do so. Although the prosecution was certainly free to make and withdraw plea
Despite defendant’s demonstration of an error affecting the outcome of the lower-court proceedings, we conclude that defendant is not entitled to relief for two reasons. First, the error in this case was not plain. See Carines, 460 Mich at 763-764. Given the existing legal precedent and the facts of this case, it was not clear or obvious that the prosecution was prohibited from amending the June 15, 2011, felony information to increase defendant’s habitual-offender level. No binding precedent existed that clearly established that, after the expiration of the 21-day period provided in MCL 769.13(1), an amended felony information that decreased the habitual-offender level charged in an original felony information could not be amended to increase a defendant’s habitual-offender level back to the level charged in the original felony information. See, generally, id. at 770 (evaluating whether the rule of law serving as the basis for an error was clearly established by Michigan caselaw in order to determine whether the error was plain).
Second, even if the error was plain, we would decline to exercise our discretion in this case to order resentencing. See id. at 763-764. Defendant is not arguing that he is innocent. Moreover, sentencing defendant as a fourth-offense habitual offender did not seriously affect the fairness, integrity, or public reputation of the judicial proceedings. See id.; see also Vaughn, 491 Mich at 666-667. The factual basis supporting defendant’s status as a fourth-offense habitual offender was beyond dispute. Indeed, defendant has an extensive criminal history illustrating that he is an habitual drunk driver.
Accordingly, we hold that defendant has failed to establish that he is entitled to relief under a plain-error framework.
Affirmed.
Defendant also pleaded guilty of operating a vehicle with a suspended or revoked license, second offense, MCL 257.904(1) and (3)(b), and the trial court imposed a one-year sentence for that conviction. However, this plea-based conviction is not at issue in this appeal.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.