One Court of Justice

On Saturday, July 31, 2010, the Michigan Supreme Court issued its opinion in People v. Houthoofd, Case Nos. 138959 & 138969.  Justice Hathaway wrote for the five-member majority reversing the Court of Appeals in part and restating the defendant’s conviction for solicitation to commit murder.  The Court held that while venue was not proper in Saginaw County for defendant’s trial on the charges of solicitation to commit murder and witness intimidation, such error was harmless and did not warrant vacation of the defendant’s conviction.  The Court remanded the matter back to the Court of Appeals for consideration of whether the trial court failed to articulate substantial and compelling reasons for upwardly departing from the sentencing guidelines when imposing defendant’s sentences on both offenses.  Read more »

The Court took substantive peremptory action in two cases, ordered oral argument on the application in two cases, and granted leave to appeal to address a criminal-sentencing issue.  All five cases are discussed below: 

Lawrence M. Clarke, Inc. v. Richco Construction, Inc.:  The Court ordered oral argument on the application.  The Court of Appeals affirmed the trial court’s refusal to set aside a default judgment where the plaintiff obtained leave from the court to effect service by alternate means and the defendants failed to present the necessary affidavits to show a meritorious defense.

In re W Minors:  The Court ordered oral argument on the application.  The Court of Appeals majority affirmed the decision of Michigan Children’s Institute’s superintendent denying consent to adopt and dismissing the adoption petitions filed by the Martins, the W minors’ former foster parents.  Judge Shapiro dissented, concluding that the Martins had been deprived of their ability to adopt the W minors because of an error by the Department of Human Services of Genesee County, and would have remanded the case to the trial court for rehearing. Read more »

On Tuesday, July 6, 2010, the Court of Appeals published its unanimous per curiam opinion in People v. Wiggins, Case No. 290017.  The Court determined that the defendant was improperly assessed a score of 25 points for Offense Variable (“OV”) 12, where two crimes of disseminating sexually explicit matter to a minor used to score this variable are “crimes against the public order” and not “crimes against a person” for purposes of MCL § 777.42.  Accordingly, the Court concluded that the defendant should have only been assessed 10 points under OV 12.  Because the scoring error altered the appropriate guideline range, and because the defendant’s sentence lies outside that range, the Court vacated the defendant’s sentence and remanded the case to the Gratiot Circuit Court for resentencing. Read more »

On Wednesday, May 26, 2010, the Michigan Supreme Court denied seven applications for leave to appeal.  The Court also took substantive action regarding two criminal cases and one civil case which are discussed after the jump.

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On Thursday, May 13, 2010, the Michigan Court of Appeals issued a unanimous per curiam opinion in the case of People v. Huston, Case No. 288843.  The court determined that the defendant was improperly assessed a score of 15 points for Offense Variable (“OV”) 10, where there was no evidence that the defendant engaged in predatory conduct or that the victim was inherently vulnerable.  For that reason, the trial court’s sentencing decision was reversed and the case was remanded to the Berrien County Circuit Court for resentencing. Read more »

In a 4-3 decision with a slightly unusual alignment of Justices, the Michigan Supreme Court held yesterday that a 10-year minimum sentence imposed under MCR 750.520f, the repeat criminal sexual conduct offender statute, represents a departure from the legislative sentencing guidelines and thus had to be reversed based on the trial court’s failure to state the “substantial and compelling reasons” for the sentence imposed.  People v. Wilcox, No. 136956.  Chief Justice Kelly authored the majority opinion, in which Justices Cavanagh, Markman, and Hathaway joined.  Justice Young authored a dissenting opinion joined by Justice Corrigan.  Justice Weaver also dissented, joining in large part Justice Young’s dissent. Read more »

On Wednesday, April 28, 2010, the Michigan Supreme Court denied seven applications for leave to appeal, dismissed two cases on stipulation of the parties, denied one motion for reconsideration, and denied the motion of the defendant-appellant in People v. Holden, Case No. 140256, for the reason that the defendant failed to provide extraordinary and compelling reasons in support of his motion seeking leave to file a 72-page application for leave to appeal.  The Court also issued several housekeeping orders including two orders granting temporary admission to the practice of law in Michigan, four orders granting extension of the time for filing briefs, and granting the motions of John A. Braden and the Michigan Municipal League to file briefs amicus curiae in the matter of Mawri v. City of Dearborn, Case No. 139647.  The Court also issued two substantive criminal orders with are discussed after the jump. Read more »

On April 13, 2010, the Court of Appeals published a per curiam opinion in Arkin Distributing Co. v. Jones, No. 287932, reversing the trial court’s order granting defendant’s motion to quash execution of a default judgment against her.  This case arises out of defendant’s embezzlement while employed by plaintiff as its bookkeeper.  In 1991, plaintiff obtained a default judgment in the civil action against defendant for failure to defend the action.  The trial court granted plaintiff constructive trusts in bank accounts, real property, and other assets owned by defendant and her husband.

Defendant pleaded nolo contendere to 24 counts of embezzlement by an agent or trustee over $100 under MCL § 750.174 in separate criminal proceedings.  In 1995, defendant was sentenced to 4-to-10 years in prison with parole conditioned on restitution of $537,432.10.  Defendant was released from prision one-and-a-half years later, with a condition of her parole that she make monthly payments of at least $200.  Defendant was released from parole in 2003, but continued to make monthly payments of $230 to plaintiff until 2008.

 When defendant’s husband died in 2007, defendant received additional assets.  Plaintiff began collection proceedings pursuant to the default judgment it had obtained in 1991.  The Court of Appeals concluded that the payments defendant made after she was discharged from parole extended the 10-year period of limitations under MCL § 600.5809(3) on the default judgment.  The Court of Appeals determined that the payments to plaintiff until 2008, despite the abatement of the parole condition for restitution, served to extend the period of limitations through 2018.

On Wednesday, March 31, 2010, the Michigan Supreme Court denied nine applications for leave to appeal and denied two motions for reconsideration.  The Court also held the cases of People v. Gagnier, Case No. 139735, and People v. Laidlaw, Case No. 139751, in abeyance pending a decision in People v. Smith, Case No. 140371.  Our post on the issues presented in Smith can be found below.  The Court also took substantive action in six criminal cases and one civil matter which are discussed after the jump. Read more »

On February 2, 2010, the Michigan Court of Appeals issued a per curiam opinion for publication in People v. Lucey, No. 287446, where it remanded for resentencing or rearticulation of a substantial and compelling reason for departing from sentencing guidelines.  The trial court imposed a prison sentence rather than the lesser penalty prescribed for reasons of logistical convenience and because the offense was a “location departure.”  The court held these were not substantial and compelling reasons.  Read more »

On Friday, January 29, 2010, the Court cleared its docket by denying leave to appeal in 137 cases and denying reconsideration in an additional 22 cases.   The Court granted leave in three cases which are addressed in a separate post.  The Court held People v. Wilkinson in abeyance pending the Court’s resolution of People v. Feezel.  The Court remanded the following cases:

People v. Hicks:  In a case involving egregious evidence of child sexual abuse, the Court vacated the portion of the Court of Appeals’ decision requiring the case to be assigned to a new circuit judge for re-sentencing but otherwise denied leave to appeal.  Justices Corrigan and Weaver would have reversed the Court of Appeals’ decision in its entirety because they believed that the circuit court had adequately justified a significant upward departure from the sentencing guidelines.  Warning—Justice Corrigan’s dissent contains an explicit description of the defendant’s conduct. 

Duskin v. Department of Human Services:  The Court vacated the Court of Appeals’ judgment and remanded the case to the trial court for reconsideration of that court’s class-certification order in light of the Michigan Supreme Court’s decision in Henry v. Dow Chemical Co.  Justices Corrigan and Young dissented because they believed that the Court’s decision in Henry would not change the correct result—denial of class certification.

People v. Gilmore:  The Court remanded the case so that the Wayne County Circuit Court could address the defendant’s motion to disqualify the judge before addressing the defendant’s motion for relief from judgment.

People v. Barbarich:  In lieu of granting leave to appeal, the Court remanded the case to the Court of Appeals as on leave granted.  Justice Cavanagh would have denied leave to appeal.

The Court entered an order clarifying its October 22, 2009 order remanding Shember v. University of Michigan Medical Center to the Court of Appeals for reconsideration in light of Bush v. Shabahang. 

The Court also ordered the Oakland County Prosecutor to respond to the application for leave in People v. Mathis to address whether the defendant had established cause in prejudice under MCR 6.508(D) in the event the defendant had identified scoring error in his criminal sentence.

On Friday, January 22, 2010, the Michigan Supreme Court granted leave to appeal in Beach v. Township of Lima to address whether a plaintiff who seeks to establish an adverse possession claim that affects property in a recorded plat must bring a claim under the Land Division Act if the plaintiff is not expressly requesting that the plat be vacated, corrected or revised.  The Court of Appeals held that a plaintiff need not bring a claim under the Land Division Act when he or she brings a quiet title action to establish adverse possession because a Land Division Act claim only alters the plat consistent with already existing property interests.  In other words, under the approach adopted by the Court of Appeals, a plaintiff may prevail in a quiet title action and later bring a claim under the Land Division Act to alter the plat–the two claims do not need to be brought simultaneously.  Such an approach has the effect of permitting inaccurate recorded plats.  The Michigan Supreme Court invited the Michigan Municipal League and the Real Property Section of the State Bar of Michigan to submit amicus briefs.  Our earlier post on the Court of Appeals’ decision is here.

Appellate criminal defense practitioners should note Justice Corrigan’s concurrence in People v. Henderson, No. 139375.  In Henderson, the Court of Appeals dismissed the defendant’s appeal because he did not timely file his appeal brief.  The Michigan Supreme Court remanded the case  to the Court of Appeals for consideration as though the defendant’s brief had been timely filed because the delay was solely attributable to the neglect of appellate counsel.  The Court concluded that defendant was deprived of effective assistance of counsel and ordered appellate counsel to pay costs to the Court.  Justice Corrigan concurred recommending that in cases where an attorney fails to timely prosecute a criminal appeal and thereby deprives the defendant of effective assistance of counsel, the Court should refer the negligent counsel to the Attorney Grievance Commission. Read more »

On December 29, 2009, the Court of Appeals issued an opinion in People v. Steven Michael Waclawski, No. 287146.  The Court rejected the entirety of Mr. Waclawski’s direct appeal of convictions for multiple counts of criminal sexual conduct, and possessing and producing child pornography.  The trial court sentenced Mr. Waclawski to serve up to 40 years in prison for his crimes.  The main issue in this appeal was whether the prosecution’s interlocutory appeal challenging exclusion of MRE 404(b) “other acts” evidence tolled the 120-day time limit for trial under the Interstate Agreement on Detainers (IAD), MCL § 780.601.  The Court held that it did.  The opinion can be found here.

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On Wednesday December 30, 2009, the Michigan Supreme Court denied twelve applications for leave to appeal and directed the Oakland County Prosecuting Attorney to answer the defendant’s application for leave to appeal in People v. Trakhtenberg, Case No. 138875.  The Court also remanded three criminal cases for further consideration which are discussed after the jump.  Read more »

On Wednesday, December 9, 2009, the Michigan Supreme Court denied seven applications for leave to appeal, held the case of Velez v. Tuma, Case No. 138952, in abeyance pending the outcome of O’Neal v. St. John Hospital, Case Nos. 138180 & 138181, and directed the Saginaw Prosecuting Attorney to answer a defendant’s application for leave to appeal and address whether, in light of People v. Idziak, 484 Mich. 549 (2009), the defendant is entitled to jail credit under MCL § 769.11b.  Our post on O’Neal v. St. John Hospital is here and our discussion of People v. Idziak, can be found here.  The Court also remanded two cases to the Court of Appeals, as on leave granted, which are discussed after the jump. Read more »

On November 20, 2009, the Michigan Supreme Court ordered oral arguments on the applications for leave to appeal in three cases, peremptorily reversed the Court of Appeals in a sentencing case, remanded another sentencing case for further consideration in light of People v. Jackson, 483 Mich. 271 (2009), and took other action in 9 cases.

In People v. Abdullah, the Court granted a MOA to determine whether to review the Court of Appeals’ decision reversing the defendant’s conviction for third-degree criminal sexual conduct (“CSC III”) because that offense is not a lesser included offense to first-degree criminal sexual conduct (“CSC I”).  Specifically, on the facts presented, the Court of Appeals concluded that CSC III required the defendant to have accomplished sexual penetration by force or coercion which was not required for a conviction under the charged offense of CSC I.

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On Wednesday, October 28, 2009, the Michigan Supreme Court denied 17 applications for leave to appeal and ordered the Saginaw County Prosecuting Attorney to respond to the application for leave to appeal in People v. Mushatt, Case No. 137846.  Mushatt had been held in abeyance pending the Court’s decision in People v. Idziak.  Our post on Idziak is here.  The Court directed the prosecutor to respond to the application for leave to appeal within 28 days.  The prosecutor was asked to address: 1) whether, in light of the Court’s holding in Idziak, the defendant is entitled to jail credit under MCL §769.11b, and 2) whether because he is being held subject to an Alabama detainer, the defendant has received or will receive credit on his Alabama sentences for the time he spent in jail awaiting the disposition of this case.  The Court also remanded one criminal case for resentencing and peremptorily reversed and remanded three cases, which are discussed after the jump. Read more »

On October 23, 2009, the Michigan Supreme Court denied six applications for leave to appeal, and remanded five cases:  two to trial court, two to the Court of Appeals, and one as on leave granted.  The remanded cases are discussed after the jump. Read more »

On October 21, 2009, the Michigan Supreme Court denied five applications for leave to appeal, denied one motion for reconsideration, adjourned oral argument in Pellegrino v. Ampco Systems Parking, Case No. 137111, and ordered the argument rescheduled on a future session calendar, granted one motion to extend the deadline for appellee to file its brief, and granted the motion of John A. Braden to file a brief amicus curiae in McCormick v. Carrier, Case No. 136738.  The Court also took substantive action in two criminal and three civil cases, which are discussed after the jump. Read more »

On Friday, October 16, 2009, the Michigan Supreme Court granted leave to appeal in Lighthouse Place Development, LLC v. Moorings Association to address whether recording a title on advice of counsel is a defense to slander of title.  The case arises from very contentious efforts by the plaintiff to use his property to re-site the Village of New Buffalo’s Amtrak station into the village.  The defendant called into question the defendant’s title to the property by recording an amendment to an earlier agreement to terminate certain parking easements near the New Buffalo harbor.  The Court of Appeals declined to declare that advice of counsel is a complete defense to slander of title as a matter of law and concluded that the defendant had failed to identify a sufficient basis in the record to show that it had actually argued advice of counsel as a defense.  The Court of Appeals decision is here.  Judge Wilder dissented and would have reversed the trial court on the slander of title claim based on the advice of counsel defense.

The Court also ordered the Kent County Prosecuting Attorney to respond to an application for leave to appeal in People v. Mitz.  In Mitz, the defendant claims that he pled no contest to a charge of operating a motor vehicle while under the influence (third offense) only after the trial judge told defendant’s counsel off the record that defendant would receive a prison sentence if he took his case to trial.  The sentencing guidelines provide for a term of jail or probation.  Accordingly, the defendant claims that the judge improperly stated or implied that he would receive a harsher sentence if he went to trial.  In a concurrence, Justice Corrigan specifically noted that the Court is considering an amendment to MCR 6.302(C)(1) that would require all discussions regarding a defendant’s plea to take place on the record.  The Court of Appeals denied a late application for leave to appeal leaving open the possibility that the Court will remand this case to the Court of Appeals as on leave granted.