Criminal Law

Issues: Request for an evidentiary hearing on the voluntariness of the defendant's plea and the effectiveness of his trial counsel; People v. Serr; The "law of the case"; People v. Hayden; People v. Douglas; Ineffective assistance of counsel in the context of a guilty plea; People v. Armisted; People v. Corteway; People v. Fonville; Sentence in excess of a People v. Cobbs evaluation; People v. Kean; People v. Abrams; People v. Garvin; Whether making a restitution payment was a specific precondition of the sentencing evaluation; Home Affordable Modification Program (HAMP)

Court: Michigan Court of Appeals (Published)

Case Name: People v. White

e-Journal Number: 58393

Judge(s): Boonstra, Markey, and K.F. Kelly

 

The court rejected the defendant's ineffective assistance of counsel claim and also held that he was not entitled to withdraw his plea because the sentence the trial court imposed exceeded its preliminary evaluation under Cobbs. He was not entitled to the benefit of his bargain when he failed to timely make the agreed-upon $20,000 restitution payment. Defendant pleaded guilty to 2 counts of obtaining money by false pretenses with intent to defraud, $1,000 or more but less than $20,000, and 1 count of conducting a criminal enterprise. The trial court sentenced him as a habitual offender (fourth offense) to concurrent prison terms of 280 months to 40 years for the criminal enterprise conviction, and 3 months to 30 years each false pretenses conviction. He was also ordered to pay restitution in the amount of $283,245. His convictions arose from his representations, through a company, that he could help struggling homeowners with mortgage modification. On appeal, the court first noted that it was precluded from granting defendant any relief on his claim that the trial court abused its discretion in denying his request for an evidentiary hearing on the voluntariness of his plea and the effectiveness of his trial counsel. In a prior order, a panel of the court, considering the same issues, denied his motion to remand. That decision was the law of the case. Defendant also argued that he should have been allowed to withdraw his guilty plea because his "trial counsel failed to explain the nature of his charges and possible defenses," and pressured him into accepting the plea. However, defendant "testified at the plea proceeding that he fully understood the plea and the sentencing evaluation, that he was satisfied with his legal advice, and that he was not under any pressure to tender the guilty plea." His contradictory affidavit was "insufficient to contradict his sworn testimony in open court." Further, he did not show that "he had a viable defense of which defense counsel failed to advise him." He did not address the charges that he "misrepresented to his customers that he had attorneys on staff to prepare and present modification proposals" or "the charge that the applications were incomplete or, indeed, never even submitted to" the HAMP. As to his claim that he was entitled to withdraw his plea, the court held in Kean that a "defendant was not entitled to the benefit of a plea bargain that included a prosecutor's sentencing recommendation, and the trial court was not required to afford the defendant an opportunity to withdraw his plea, where the defendant violated a specific condition of the plea agreement." It was clear from the record that "the timely making of the initial $20,000 restitution payment was a specific precondition of the Cobbs evaluation." As he failed to comply, the trial court was not bound by the evaluation.

 

Full Text Opinion

Issues: Reliability of an unnamed or confidential informant; Franks hearing; Franks v. Delaware; People v. Thomas; People v. Poindexter; Search & seizure; U.S. Const. amend. IV; Const. 1963, art. 1, § 11; People v. Kazmierczak; Evidence obtained in violation of the Fourth Amendment; Mapp v. Ohio; "Probable cause"; MCL 780.653; People v. Russo; People v. Mitchell; People v. Waclawski; People v. Martin

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Adams

e-Journal Number: 58175

Judge(s): Per Curiam – Murphy, Whitbeck, and Talbot

 

The court held that the trial court clearly erred when it found that the affidavit did not provide probable cause for the warrant. Thus, it reversed and remanded for reinstatement of the charges and further proceedings. Defendant was charged as a second-time habitual offender with manufacturing or delivery of less than 50 grams of narcotics, delivery of or manufacturing less than 5 kilograms of marijuana, felon in possession of a firearm, and felony-firearm. The trial court granted his motion to suppress the search warrant for his residence and dismiss the charges on the ground that the prosecution failed to produce the officer to testify about the warrant affidavit. On appeal, the court first rejected the prosecution's argument that the trial court erred because it was not authorized to order a Franks hearing, as it never ordered one. However, the court agreed with the prosecution that "the trial court clearly erred when it suppressed the warrant because the affidavit sufficiently supported the magistrate's probable cause determination." It concluded that although "there was no basis from which the magistrate could have concluded that the informant was credible and reliable," the magistrate's probable cause finding did not rest solely on the officer's recitation of the confidential informant's statements. "Importantly, the affidavit also contained" the officer's personal observations. He "averred that he personally saw [defendant] exchange small objects for money in front of the residence, and that one of the individuals told him he had just received drugs." Further, his "experience in investigating drug trafficking and his related belief that [defendant] was trafficking drugs were also relevant. These facts created a substantial basis for inferring a fair probability that contraband or evidence of a crime would be found at [defendant's] house."

 

Full Text Opinion

Issues: Sufficiency of the evidence to support the defendant's convictions of larceny in a building, interference with electronic communication, and first-degree home invasion; People v. Sykes; People v. Pratt; MCL 750.540(4); "Willfully and maliciously" defined; People v. Culp; People v. Wilder; "Without permission" defined; "Breaking" defined; People v. Toole; Effect of the facts defendant and the victim previously had a dating relationship and that she invited him into her apartment the evening before the home invasion; People v. Dunigan; Ineffective assistance of counsel; People v. Swain; Factual predicate; People v. Hoag; Claim that defendant received inadequate notice of uncharged offenses; People v. Plunkett; Harmlessness of any error in the bindover process; People v. Bennett; Sufficiency of the amended information coupled with the preliminary exam; People v. Higuera; "Newly discovered evidence"; People v. Rao; Defendant's burden to furnish the court with a record to verify the factual basis of his argument; People v. Elston

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Coates

e-Journal Number: 58208

Judge(s): Per Curiam – Shapiro, Whitbeck, and Stephens

 

Holding that the victim's testimony, which was supported by the testimony of her friend and of the officers who responded to her 911 calls, was sufficient to support the defendant's convictions of larceny in a building, interference with electronic communication, and first-degree home invasion, the court affirmed his convictions. He was also convicted of domestic assault. The victim and defendant had been in a dating relationship, which ended about a month before the incidents giving rise to the charges in this case. Defendant came to the victim's apartment on the evening of 3/18/12 and she permitted him to enter. When she subsequently refused to talk to him, he took two cell phones "that did not belong to him, despite the fact that she requested that he leave the telephones on her table." He left her apartment with the phones. She called 911 and told the responding officer that defendant had stolen two cell phones from her. Defendant returned to the victim's apartment in the early morning hours of 3/19/12. She refused to allow him into her apartment. He then broke the victim's door frame, entered the apartment, and proceeded to choke her and pull her hair. While he was assaulting her, she tried to call 911 on a third cell phone. However, defendant took it away from her and left her apartment. "The victim contacted the police from a friend's apartment and told the responding officers that defendant had broken down her door, assaulted her, and stolen" her cell phone. She confirmed that he "had not purchased any of the telephones that he took, that he was not a party to the service contracts for any of the telephones, and that she has not seen any of the three telephones since defendant took them." She also testified that he "was not a party to her lease and did not live at her apartment. This testimony alone was sufficient to establish all of the elements of larceny from a building" as to any of the three phones. It was also sufficient to support a finding that "defendant willfully and maliciously prevented, obstructed, or delayed the victim's ability to send or convey an authorized communication to the police through these telephones." As to the first-degree home invasion conviction, "the victim's testimony was sufficient to support a finding that defendant either broke and entered into the victim's apartment, or entered the victim's apartment without permission," on the morning of 3/19/12. In addition to the other witnesses' testimony, her testimony was corroborated by evidence of damage to her apartment door. The court also rejected the claims defendant raised in his Standard 4 brief.

 

Full Text Opinion

Issues: Sufficient evidence of first-degree child abuse; People v. Wolfe; People v. Yost; People v. Kanaan; "Other acts" evidence; MRE 404(b); People v. Starr; People v. Knox; People v. VanderVliet; People v. Sabin (After Remand); People v. Golochowicz; MRE 403; People v. Mills; People v. McGhee; Sentencing; Scoring of the OVs; Blakely v. Washington; People v. Hardy; OV 7; People v. Glenn; OV 13; People v. Nix; People v. Gibbs; Upward departure from the guidelines; "Substantial and compelling" reason; People v. Smith; People v. Horn

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Kupres

e-Journal Number: 58209

Judge(s): Per Curiam – Shapiro, Whitbeck, and Stephens

 

There was sufficient evidence to convict the defendant of first-degree child abuse. He argued that the prosecutor failed to identify him as the perpetrator of his five-month-old child's severe injuries. However, there was evidence that the child had been previously injured while in the defendant's care, and that her injuries constituted trauma that was not self-inflicted. Testimony of family members, along with extensive medical testimony, belied the defendant's claims that the child was injured while in her bath. Moreover, the defendant had previously admitted that he had inflicted brain trauma on his son. Thus, "[t]he evidence established defendant's identity as the perpetrator where the victim previously was injured in defendant's care, defendant provided information about the cause of those injuries that was refuted by medical testimony, defendant previously injured a child and gave false information as to the cause of that child's injuries, the injuries of both children were substantially similar, the victim suffered some sort of head trauma while in defendant's care and went limp in his arms, and defendant's own mother refuted defendant's testimony as to how the victim may have been injured . . . ." This evidence was sufficient to convince the jury of the "defendant's lack of credibility." Evidence about his 2008 abuse of his son was properly admitted under MRE 404(b) - the evidence "was 'of the same general category' as the 2012 child abuse against the victim and was relevant to show that defendant did not accidentally or mistakenly cause serious physical harm to the victim, but rather intentionally or knowingly caused serious harm to the victim." The striking similarities of the two acts "supported an inference . . . 'of a common plan, scheme, or system' regarding how defendant treats his infant children." The evidence was also relevant to his identity as the abuser. The record supported the trial court's scoring of OV 7 (excessive brutality) at 50 points, and OV 13 (part of a pattern of felonious activity) at 25 points. The trial court's upward departure from the recommended guidelines range of 84 to 175 months to 180 months was supported by its conclusions that the guidelines did not give adequate weight to defendant's OVs because his total OV score was 35 points higher than the highest OV level, and that his "PRV score did not give adequate weight to the nature of his previous conviction." Affirmed.

 

Full Text Opinion

Issues: Withdrawal of a plea; MCR 6.310; People v. Strong; Prosecutorial misconduct; People v. Mann; People v. Watson; People v. McGhee; People v. Rivera; Ineffective assistance of counsel; People v. LeBlanc; Assault with intent to do great bodily harm less than murder (AWIGBH)

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Wetzel

e-Journal Number: 58178

Judge(s): Per Curiam – Owens, Jansen, and O’Connell

 

The court held that the trial court did not err in withdrawing the defendant's guilty plea and that reversal was not required on the basis of prosecutorial misconduct. Thus, it affirmed his convictions, but remanded for the ministerial task of correcting the judgment of sentence to reflect his acquittal of interfering with a crime report. Defendant was convicted of AWIGBH and larceny of property less than $1,000. The trial court sentenced him to 30 months' to 10 years' imprisonment for the assault conviction and to time served (178 days) for the larceny conviction. On appeal, the court rejected his argument that he did not consent to withdrawal of the plea, under which the AWIGBH charge would have been dismissed, and that the trial court erred by withdrawing the plea without his consent, noting that the record showed that he consented to withdrawal of the plea. "The context of the exchange, and [defendant's responses] verify that [he] not only consented to withdrawal of his plea, but requested the withdrawal." The court also rejected his argument that improper remarks by the prosecution during opening statement and closing argument denied him a fair trial, noting that although the prosecution's opening statement and closing argument were improper to the extent that it "referenced unsupported statistical information," both references were brief and the prosecution "did not urge the jury to convict defendant as part of a broader duty to end violence against women." It concluded that because the prosecution's "remarks were isolated and did not blatantly urge the jury to convict defendant as part of a broader civic duty," reversal was not required. It further rejected his related ineffective assistance of counsel argument, finding that, even if "defense counsel should have objected to the remarks, defendant was not prejudiced by defense counsel's failure to object." Finally, the court noted the need for ministerial remand to reflect that defendant was acquitted of the count of interfering with a crime report, noting that the judgment of sentence indicated that he was convicted on all three counts.

 

Full Text Opinion
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