• Criminal Law (4)
• Real Property (1)

Criminal Law

 

Issues: Sentencing; Whether the trial court articulated "substantial and compelling" reasons for a downward departure from the guidelines; MCL 769.34(3); People v. Babcock; Reliance on a defendant's age; People v. Fields; People v. Young; People v. Claypool; Reliance on the defendant's age alone in determining rehabilitative potential; Reconsideration of the scoring of OV 13 in light of People v. Pearson

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Anderson

e-Journal Number: 53260

Judge(s): Per Curiam – Talbot, Beckering, and M.J. Kelly

 

Holding, inter alia, that the defendant's age (17 at the time of the offense) and criminal history (at the time of the crime, he had 2 juvenile adjudications and a conviction as an adult) did not present substantial and compelling reasons to depart from the guidelines, the court vacated his sentence and remanded for resentencing. The court also instructed the trial court to reconsider the scoring of OV 13 in light of Pearson, which was decided about 3 months after defendant's sentence was imposed. He and a codefendant pleaded guilty to armed robbery. After correction of the sentencing variables to account for two later breaking and entering offenses committed by defendant, the trial court calculated that the proper guidelines were 108 to 180 months. Defense counsel asked the trial court to consider defendant's age as a proper sentencing factor under Fields. The prosecution asked the trial court to consider "the serious nature of the crimes and defendant's rapid accumulation of offenses." The trial court found substantial and compelling justifications to depart below the guidelines, and sentenced defendant to 85 to 180 months. The prosecution argued on appeal that the trial court improperly deviated on the basis of defendant's age and potential for rehabilitation, neither of which was a substantial and compelling reason to justify the departure. The court agreed. While a defendant's age is a proper factor in determining a sentence, "departure may not be justified upon a defendant's age alone." The court concluded that defendant failed to meet the burden set by Young and Claypool. He was considerably younger than the defendants in those cases, and he had already accumulated a criminal record. In addition to the offenses committed before he committed the offense here, "at the time of sentencing, he had convictions as an adult on five additional charges." Further, to the extent the trial court relied on defendant's age alone in determining rehabilitative potential, the court could not agree. "To allow a court to find on the basis of age alone that a defendant had rehabilitative potential warranting departure from the sentencing guidelines would strip Young of its meaning." The court held that to the extent rehabilitative potential was determined based on defendant's age alone, it was improper, and that "any objective facts supporting this finding were lacking from the record."

 

Issues: Whether the defendant was denied due process when the police did not produce the audio recording from the squad car that defendant contended would have captured the neighbor telling police that she did not recognize him as the man she saw entering the garage; People v. Jackson; People v. Carines; People v. Hanks; Whether defendant proved that the missing evidence was exculpatory; People v. Johnson; Whether the trial court should have given an adverse inference instruction; "Waiver"; People v. Chapo

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Deel

e-Journal Number: 53250

Judge(s): Memorandum - Fort Hood, K.F. Kelly, and Donofrio

 

Since the record did not show that the purported conversation between the neighbor and the police officers was actually recorded, defendant did not present a foundation for missing exculpatory evidence. Even if such a recording existed, he did not establish that the police purposefully destroyed it. "Routine destruction of recordings is not evidence that law enforcement acted in bad faith." Thus, the record did not show that plain constitutional error occurred, and defendant was not entitled to appellate relief. Defendant was convicted, after a jury trial, of entering without breaking with intent to commit a felony or larceny and was sentenced as a habitual offender, fourth offense. His conviction arose from the theft of a red plastic toolbox from an open garage. A neighbor testified that she saw a man pacing near her home, saw him enter the garage, and then saw him walk away with something red tucked underneath his "hoodie." She called 911 and watched the man until the police stopped him. Officer K saw defendant come from behind the garage. K recovered the toolbox from behind the garage. The main issue at trial was the identity of the thief. Defendant admitted he was the person who the neighbor saw pacing, but disputed that he was the person she saw entering the garage. He argued he was in the "wrong place at the wrong time." He contended on appeal that he was denied due process because the police officer did not produce an audio recording from the squad car that defendant claimed would have captured the neighbor telling the police that she did not recognize defendant as the man she saw entering the garage. The court noted that defendant failed to preserve the issue for appellate review. By itself, his account was inadequate to prove that the contents of a recording would have been exculpatory. Defendant also claimed that the trial court erred when it failed to give an adverse inference instruction. However, defense counsel expressed satisfaction with the instructions after they were given. Thus, counsel waived any error regarding the jury instructions. Affirmed.

 

Issues: Whether the trial court properly denied the prosecution's appeal of the district court's order refusing to bind over defendant on the charge of interfering or attempting to interfere with the reporting of a crime through the unlawful use of physical force; MCL 750.483a(1)(b); People v. Henderson; People v. Babcock; Whether a district court must bind over a defendant if the evidence establishes that a felony was committed and there is probable cause to believe defendant committed the crime; Circumstantial evidence and reasonable inferences; People v. Terry; Proving interference or attempted interference with the reporting of a crime through the unlawful use of force; People v. Halley; People v. Doss; People v. Justice (After Remand)

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Gary

e-Journal Number: 53270

Judge(s): Per Curiam - Borrello, Fitzgerald, and Owens

 

The court held that the district court abused its discretion by failing to bind defendant over for trial on the charge of interfering or attempting to interfere with the reporting of a crime through the unlawful use of physical force. Thus, the court reversed and remanded to the district court for entry of an order reinstating the charges against defendant and binding him over for trial as charged. Defendant was charged with domestic assault, second offense and with interfering or attempting to interfere with the reporting of a crime based on an altercation with his girlfriend. The altercation occurred at the home that the victim and defendant shared. At one point during the alleged assault, the victim ran to a neighbor's home and banged on the outside of the house. The persons inside came out and saw defendant forcibly taking the victim back to their home. As she was being forced back home, the victim told her neighbors "to call the cops and get her help." The district court concluded that when the victim told the neighbor to contact the police it was a continuation of the domestic assault and was not evidence that defendant was preventing her from reporting a crime. The prosecutor appealed to the circuit court, which denied the appeal. The court noted that a district court must bind over a defendant if the evidence established that a felony was committed and there was probable cause to believe defendant committed the crime. The evidence clearly established that the victim ran from her house to the neighbor's house and tried to get the attention of those inside by banging on the outside of the house. Although the victim did not recall at the preliminary examination why she was trying to get her neighbor's attention, the responding officer testified that the victim said that she was "try[ing] to get the police called." In this context, the victim's request to her neighbors "to call the cops and get help" as defendant was dragging her back home supported the officer's testimony that the victim was trying to have the police summoned. This same evidence was "sufficient to cause a person of ordinary prudence and caution to entertain a reasonable belief" that defendant committed the crime. Thus, the court concluded the district court should have bound over defendant on the charge of interfering or attempting to interfere with the reporting of a crime through the unlawful use of physical force.

 

Issues: Sentencing; Whether the trial court articulated "substantial and compelling" reasons for a downward departure from the guidelines; MCL 769.34(3); People v. Babcock; Reliance on a defendant's age; People v. Young; People v. Claypool; Reliance on the defendant's age alone in determining rehabilitative potential; Reconsideration of the scoring of OV 13 in light of People v. Pearson

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Yenglin

e-Journal Number: 53259

Judge(s): Per Curiam – Talbot, Beckering, and M.J. Kelly

 

The court held that the defendant's age and criminal history were not substantial and compelling justifications for departing downward from the guidelines in sentencing him. Further, to the extent that his rehabilitative potential was determined based on his age alone, this was improper, and there were no objective facts supporting his rehabilitative potential in the record. Thus, the court vacated defendant's sentence and remanded the case for resentencing. The court also instructed the trial court to reconsider the scoring of OV 13 in light of Pearson, which was decided about 3 months after defendant's sentence was imposed. Defendant and a codefendant pleaded guilty to armed robbery. After correcting the sentencing variables to account for two later breaking and entering offenses committed by defendant, the trial court calculated that the proper guidelines range was 81 to 135 months. However, the trial court sentenced him to 55 to 180 months. The prosecution argued on appeal that the trial court improperly deviated on the basis of defendant's age and potential for rehabilitation, neither of which was a substantial and compelling reason to justify the departure. The court agreed. While a defendant's age is a proper factor in determining a sentence, "departure may not be justified upon a defendant's age alone." The inquiry in considering a defendant's age and criminal history is whether the defendant's age is "particularly old to not yet have a more lengthy criminal record." The court noted that this "is a high burden to meet." Defendant in this case failed to meet the burden set by Young and Claypool. He was 18 years old at the time of this offense, considerably younger than the defendants in Young and Claypool, and he had already accumulated a criminal record - he had four convictions as an adult. The court also concluded that to allow a trial court "to find on the basis of age alone that a defendant had rehabilitative potential warranting departure from the sentencing guidelines would strip Young of its meaning." Further, to the extent that the trial court "found rehabilitative potential from more than simply defendant's age, its findings were unclear."

 

Real Property

 

Issues: Claims for common-law and statutory conversion alleging that the defendant wrongfully took the proceeds of a foreclosure sale; Lawsuit Fin., LLC v. Curry; Check Reporting Servs., Inc. v. Michigan Nat'l Bank-Lansing; MCL 600.2919a; Terms undefined by statute; Nelson v. Grays; Construing a legal term of art; Brackett v. Focus Hope, Inc.; Contractual remedy of foreclosure by advertisement; Church & Church Inc. v. A-1 Carpentry; Claim that the dominion was wrongful because defendant should have sold a parcel in 17 separate lots; MCL 600.3224; Cox v. Townsend

Court: Michigan Court of Appeals (Unpublished)

Case Name: Victory Estates, L.L.C. v. NPB Mtg., L.L.C.

e-Journal Number: 53254

Judge(s): Per Curiam – Talbot, Beckering, and M.J. Kelly

 

Holding that the defendant lawfully exercised dominion over the proceeds of the foreclosure sale, the court affirmed the trial court's order granting defendant summary disposition in this conversion action. In 2006, three sets of family members purchased three separate tracts of land (Parcels A, B, and C). To finance their purchase, each family member obtained a mortgage from defendant, and the mortgages were duly recorded. The family members then formed plaintiff and, in 2007, transferred ownership of their respective parcels to plaintiff by quitclaim deed for $1 each as part of their plan to build a condo development. Defendant approved the transfer of land to plaintiff. At some point, the family members defaulted on each of the mortgages, and defendant foreclosed by advertisement. Defendant successfully sought deficiency judgments as to Parcels B and C. The court previously upheld those deficiency judgments. Plaintiff then filed this suit for common-law and statutory conversion, alleging that defendant was not entitled to the foreclosure proceeds because it had no right to foreclose on the family members since they transferred their interest to plaintiff, so plaintiff was the proper party on which to foreclose. The trial court found that no genuine issue of material fact existed, and granted defendant's summary disposition motion. Noting that MCL 600.2919a does not define "conversion," the court concluded that the common-law definition defines both common-law and statutory conversion. "Defendant's exertion of dominion over the proceeds would be wrongful if it was inconsistent with the ownership rights of another." The court noted that the option to foreclose by advertisement is a contractual remedy authorized by the mortgagor, and each mortgage in this case provided that defendant could foreclose by advertisement. Among the statutory requirements for foreclosure by advertisement are that notice must be sent to the "borrower" (subject to certain exceptions) and that notice must be posted on the property and published in the paper. Defendant asserted that it complied with the notice requirements, and plaintiff did not contest that it did. Rather, plaintiff claimed that, as a true party in interest, it and all of its members should have received notice. However, "the statute only requires notice to 'borrowers' and that notice be posted and published." Thus, it was "immaterial whether plaintiff and its members received notice because defendant was not required to give it." There was no genuine issue of fact as to whether dominion was wrongfully exerted where there was no dispute as to whether defendant followed the statutory rules for foreclosure by advertisement.

 

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