One Court of Justice

In People v. Davis, the Michigan Court of Appeals held that the victim’s biological mother was properly included under the term “family” for purposes of OV 5, despite the fact that the mother had given the victim up for adoption at a very young age.   OV 5 directs the court to score 15 points if the crime results in serious psychological injury to a victim’s family.  The trial court scored 15 points for OV 5 after considering a victim impact statement from the victim’s biological mother.  The defendant appealed, arguing that the victim’s biological mother should not have been considered part of the victim’s “family” for purposes of the OV 5 because the victim was adopted as a child.  The Court of Appeals disagreed, and concluded that the victim’s biological mother was a member of the victim’s family for purposes of OV 5 because the biological mother fell under the ordinary and generally accepted meaning of the term “family.  The Court reasoned that there was no evidence that the legislature intended to define “family” narrowly.

In People v. Ratcliff the Michigan Court of Appeals affirmed the trial court’s assessment of ten points instead of zero points under offense variable 19 (“OV 19″) because the defendant fled from police.  OV 19 requires the trial court to assess ten points if the offender interfered or attempted to interfere with the administration of justice.  The court also rejected several other challenges to defendant’s conviction including the sufficiency of the evidence and ineffective assistance of counsel. Read more »

The defendant in People v. Bowling pleaded nolo contendere to first-degree home invasion, second-degree murder and resisting and obstructing.  Police officers attempted to arrest the defendant and his brother while they were committing a home invasion.  The defendant attempted to flee, but he was eventually apprehended.  His brother used a gun that he had stolen from the home and shot and killed a police officer.  The police officer also shot and killed the defendant’s brother.  The trial court sentenced the defendant as a fourth habitual offender to concurrent sentences of 50 to 100 years for first-degree home invasion, 100 to 150 years for second-degree murder, and 3 to 15 years for resisting and obstructing.  Because the defendant did not preserve the issue of whether his sentences constituted cruel and unusual punishment, the Court of Appeals’ review was limited to whether plain error affected the defendant’s substantial rights.  A sentence of 100 years for second-degree murder was within the sentencing guidelines range, which was 365 to 1200 months or life.  The court stated that a “sentence within the guidelines range is presumptively proportionate, and a proportionate sentence is not cruel or unusual.”  Slip op. at 3.  And even though the defendant’s age of 49 years ensured that he would spend the remainder of his life in prison, the court concluded that fact alone did not render the punishment cruel or unusual, especially considering the defendant’s lengthy criminal record.  Accordingly, the court affirmed the defendant’s sentences, but remanded for the administrative task of correcting an error in the judgment of sentence.

The defendant in People v. Loper was convicted of both possession of child sexually abusive material and use of a computer to commit a crime.  He argued that the statute for possession was vague, because the statute prohibits possession or a single image of sexually abusive material and a collection of images, which could result in a variance in the number of criminal charges that could be brought.  Because the vagueness challenge did not involve First Amendment freedoms, the Michigan Court of Appeals examined the challenge on the facts of the case.  Offense variable (OV) 12 requires a score of 25 points for three or more contemporaneous acts of possession of child sexually abusive material.  The trial court assigned a score of 25 for OV 12, because the defendant possessed 4 disks of sexually abusive material.  The defendant argued that if he had been charged with more than one court, the statute would be vague by also allowing a score of 25 for OV 12.  But because the defendant was only charged with one count, the statute, as applied to the facts of his case, was not unconstitutionally vague.  The court also rejected the defendant’s argument that the statute prohibiting the use of a computer to commit a crime protected against the same wrongful conduct as the possession statute, because the statute prohibiting possession of child sexually abusive material applied to child pornography in a variety of formats, not just computer image.

In People of the State of Michigan v. Crews, the Michigan Court of Appeals concluded that out-of-state felony convictions need only be “similar or analogous” to a Michigan criminal offense to “correspond” to that offense for the purpose of calculating a sentence.  In Crews, the Defendant pleaded guilty to second-degree home invasion, and was sentenced to 71-180 months.  On appeal, the Defendant argued that the trial court erred in calculating the effect of his prior criminal record.  The Defendant had two convictions in Ohio for second-degree burglary.  The trial court concluded that those were high severity felonies.  The Defendant argued that these convictions, which are punishable by a maximum of only eight years, should be scored as low severity felonies.  The Michigan Court of Appeals held that Ohio’s second-degree burglary was sufficiently “similar or analogous” to Michigan’s second-degree home invasion that it “corresponds” to that crime within the meaning of MCL 777.51(2)(b), and is thus a high severity felony.  The Court elaborated that the meaning of “correspond” does not require statutes to mirror each other under all circumstances, but only that they have “qualities in common.”

In Makowski v. Governor, the Michigan Court of Appeals concluded that challenges to the governor’s decisions regarding whether to commute a prisoner’s sentence are nonjusticiable questions outside the scope of judicial review.  After Governor Jennifer Granholm purportedly commuted the plaintiff’s nonparolable life sentence to parolable life but before the sealed and signed commutation certificate was processed by the Department of Corrections, she revoked the commutation.  The plaintiff claimed that the revocation exceeded the governor’s constitutional authority and violated his due process rights.  The trial court dismissed the plaintiff’s claim, concluding that it lacked jurisdiction over questions regarding a governor’s commutation powers.  The Court of Appeals affirmed. Read more »

The defendant in People v. Franklin had been convicted by the trial court of indecent exposure and aggravated indecent exposure, and was sentenced for the latter crime as a sexual delinquent.  Following remand by the Michigan Supreme Court, the Court of Appeals vacated its original opinion.  In this new opinion, the Court of Appeals held that the trial court was required to conduct a separate hearing regarding the defendant’s sexual delinquency after he entered a plea of nolo contendere to aggravated indecent exposure.  A mere examination of the defendant’s criminal history is insufficient to satisfy the hearing requirement.  In addition, the defendant’s conviction of both aggravated indecent exposure and indecent exposure violated double jeopardy.  The Court of Appeals therefore affirmed the defendant’s conviction for aggravated indecent exposure, but vacated both his conviction for indecent exposure and his sexual delinquency sentencing enhancement.

In People v. Collins, the Court of Appeals upheld several drug-related convictions against the defendant, but vacated his conviction of delivering 50 to 450 grams of heroin.  There was no evidence in the record that the defendant delivered more than 50 grams of heroin in a single transaction.  The relevant statute defines “delivery” using the term “transfer” in its singular form.  There are four different delivery charges for distinct quantity groups, each with a different degree of punishment.  Therefore, the Court of Appeals held that the defendant’s separate heroin deliveries could not be aggregated, and the court vacated his conviction for delivery of 50 to 450 grams of heroin.

The Court of Appeals upheld the defendant’s other convictions for possession and conspiracy to delivery heroin and cocaine.  While the defendant contended that the officers who searched his car were acting outside their jurisdiction, the Court of Appeals noted that this statutory violation was not necessarily unconstitutional, and therefore the statutory violation did not automatically trigger the exclusionary rule.  The Court of Appeals further held that the officers had reasonable suspicion to search the defendant’s car, the defendant was not deprived of his constitutional rights, and his counsel was not ineffective.  However, because the sentences for these offenses were based on the vacated conviction, the Court of Appeals remanded for resentencing.

In People v. Portellos, the defendant appealed her convictions of second-degree murder and first-degree child abuse, while the prosecution appealed the trial court’s downward departure from the sentencing guidelines.  The Court of Appeals upheld the convictions, finding that a reasonable juror could have found that the defendant had the requisite state of mind.  However, the Court of Appeals remanded for resentencing after finding that the trial court incorrectly scored the offense variable for physical injury to the victim.

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In People v Anderson, the Michigan Court of Appeals upheld a ten- to twenty- year prison sentence imposed by the trial court for arson.  The defendant appealed the sentence on the grounds that the trial court erred in scoring a sentencing variable and in departing from the sentencing guidelines. However, the Court of Appeals found that the trial court had appropriately scored the variable and that departure from the guidelines was adequately supported by objective and verifiable factors.

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