In People v Cole, __ Mich App __ (Unpub, #298893, 3/15/2011) defendant plead no contest two counts of second-degree criminal sexual conduct (CSC 2nd) under MCL 750.520c(1)(a) (child under 13 years of age) pursuant to a sentence agreement of a “five year cap on the minimum as to all charges” and concurrent sentences. Defendant was sentenced accordingly.
However, MCL 750.520n required also that defendant, as a person convicted under section 520b or 520c for criminal sexual conduct committed by an individual 17 years old or older against an individual less than 13 years of age, be sentenced to lifetime electronic monitoring.
On appeal the Court of Appeals remanded the case to the trial court and ordered that defendant be afforded an opportunity to withdraw his plea of no contest to the two charges of CSC II because he was not advised of the lifetime electronic monitoring aspect of his sentence and thereby he cannot be held to have entered a knowing, intelligent, and understanding plea. (The sentence to lifetime electronic monitoring was not included in the announced sentence agreement and thereby exceeded the
The key seems to be the statutory language referring to the electronic monitoring requirement as being part of the sentence. MCL 750.520n characterizes lifetime electronic monitoring as a sentence. The electronic monitoring was thereby not a collateral consequence of the plea or sentence, but part of the sentence.
The Court of Appeals further stated “Moreover, being on a tether or subject to a comparable device is generally regarded as an alternative to jail or prison.” leaving for another day what effect the imposition of tether, SCRAM or electronic monitoring at the time of sentencing may have on sentence agreements.