People of Michigan v. Wilshawn Antwaun Talley-Ellis ( 2022 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
June 23, 2022
Plaintiff-Appellee,
v No. 357388
Macomb Circuit Court
WILSHAWN ANTWAUN TALLEY-ELLIS, LC No. 2018-003085-FC
Defendant-Appellant.
Before: MARKEY, P. J., and SHAPIRO and PATEL, JJ.
PER CURIAM.
Defendant appeals as of right the trial court’s resentence judgment following remand from
this Court. Because defendant’s application for leave to appeal this Court’s judgment was pending
in our Supreme Court at the time of resentencing, the trial court lacked of subject-matter
jurisdiction. We vacate the sentences and remand to the trial court for resentencing.
I. BACKGROUND
Following a jury trial, defendant was convicted of assault with intent to murder (AWIM),
MCL 750.83, and possession of a firearm during the commission of a felony (felony-firearm),
MCL 750.227b. He was sentenced as a fourth-offense habitual offender to 25 to 50 years
imprisonment for his AWIM conviction and two years’ imprisonment for his felony-firearm
conviction. Defendant appealed his convictions and sentences. This Court affirmed the
convictions, but remanded to the trial court for resentencing. People v Talley-Ellis, unpublished
per curiam opinion of the Court of Appeals, issued October 15, 2020 (Docket No. 349112), p 1.
Defendant timely filed an application for leave to appeal with our Supreme Court, which was
denied on June 1, 2021. People v Talley-Ellis, 507 Mich 954; 959 NW2d 517 (2021).
While defendant’s application for leave to appeal was pending, the trial court resentenced
defendant. This appeal followed.
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II. STANDARD OF REVIEW
A challenge regarding whether a trial court has subject-matter jurisdiction may be raised
at any time, even if raised for the first time on appeal. People v Richards, 205 Mich App 438, 444;
517 NW2d 823 (1994). Whether an error of subject-matter jurisdiction has occurred is a question
of law that this Court reviews de novo. People v Washington, 508 Mich 107, 121; 972 NW2d 767
(2021).
III. LAW AND ANALYSIS
Defendant argues that his May 2021 resentencing is void ab initio because the trial court
lacked subject-matter jurisdiction. We agree.
Defendant’s initial claim of appeal divested the trial court of subject-matter jurisdiction
over the convictions and sentences. Washington, 508 Mich at 126. A trial court does not regain
jurisdiction of a case after appeal to this Court until after the time to file an application for leave
to appeal to the Supreme Court has lapsed or, if a timely application is filed, after the Supreme
Court adjudicates the appeal. Id., MCR 7.302(C)(5). While a timely application for leave to appeal
is pending in the Supreme Court, “a Court of Appeals decision remanding to a lower court for
further proceedings is automatically stayed, unless the Court of Appeals or [our Supreme] Court
orders otherwise.” People v Swafford, 483 Mich 1, 6 n 5; 762 NW2d 902 (2009), citing MCR
7.302(C)(5).
When this Court rendered its 2020 judgment, which included a remand for resentencing,
jurisdiction remained with the appellate courts until after the Supreme Court’s disposition of
defendant’s application for leave to appeal. MCR 7.215(F)(1)(a); MCR 7.305(C)(6)(a);
Washington, 508 Mich at 126-127. Our Supreme Court denied defendant’s leave application on
June 1, 2021. People v Talley-Ellis, 507 Mich at 954. The trial court therefore lacked subject-
matter jurisdiction when it resentenced defendant in May 2021 while his Supreme Court
application for leave to appeal was still pending. Washington, 508 Mich at 127. “It is a
longstanding rule that defects in a court’s subject-matter jurisdiction render a judgment void ab
initio.” Id. at 129. Accordingly, the May 2021 judgment of resentencing is void.
IV. CONCLUSION
We vacate the sentences and remand to the trial court for resentencing consistent with this
Court’s October 2020 judgment. We do not retain jurisdiction.
/s/ Jane E. Markey
/s/ Douglas B. Shapiro
/s/ Sima G. Patel
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