Criminal Law

This summary also appears under Attorneys

 

Issues: "Extraordinary" attorney fees incurred in appointed appellate representation of a criminal defendant; People v. Edgley; Adair v. Michigan (On Fourth Remand); In re Attorney Fees of Mullkoff; Michigan Appellate Assigned Counsel System (MAACS)

Court: Michigan Court of Appeals (Unpublished)

Case Name: In re Attorney Fees of John W. Ujlaky

e-Journal Number: 58414

Judge(s): Per Curiam – Meter, Whitbeck, and Riordan

 

Under the circumstances, the court could not find that appellant-Ujlaky (an attorney) carried his burden as to his request for an award of extraordinary fees incurred during the appointed appellate representation of the defendants, and appellate relief was unwarranted. In Docket No. 316494, Ujlaky initially submitted a request for fees in the amount of $2,150.05. He submitted the request on a MAACS form. He placed an "x" on the form next to Line 35, which provides "Motion for extraordinary fees (attach copy)." He attached "no copy of a motion for extraordinary fees. Rather, he attached a statement of the hours expended and the services provided." The county paid him the flat fee from the schedule. He then filed a formal motion for extraordinary fees. "Ujlaky bore the burden of proving the extraordinary nature of the services rendered and the reasonableness of the fees sought." A review of his motion revealed that he "failed to explain how the services rendered in the appeal were of a character and an amount beyond those normally required in a guilty-plea appeal." He filed a 22-page appellate analysis that addressed the two issues preserved by defendant-Simpson in his conditional plea. "Those issues were the subject of briefing by the parties in the trial court, an evidentiary hearing, and a ruling by the trial court." Under the circumstances, "Ujlaky would not have to have done a great deal of original analysis to present the issues on appeal." In Docket No. 316809, while the circumstances suggested "that an award of extraordinary fees might have been in order, Ujlaky did not attach a motion to the MAACS form as required and, thus, never offered any explanation, beyond a recitation of his proposed billing, to the court regarding the apparent extraordinary nature of the services rendered and the reasonableness of the fees sought." Affirmed.

 

Full Text Opinion

Issues: Claim that the prosecutor's statements at trial as to defendant shooting the victim "like a dog" constituted prosecutor error; People v. Abraham; People v. Ackerman; People v. Bahoda; People v. Ullah; Claim that the prosecutor's statements were prejudicial because they created sympathy for the victim; Ineffective assistance of counsel; People v. Petri; People v. Matuszak; People v. Ericksen; Assault with intent to do great bodily harm less than murder (AWIGBH)

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Biffle

e-Journal Number: 58418

Judge(s): Per Curiam – Fitzgerald, Wilder, and Owens

 

The court held that defendant failed to show that the prosecutor's statements about him shooting the victim (G) "like a dog" constituted prosecutor error that amounted to plain error affecting his substantial rights. Also, his ineffective assistance of counsel claim failed. Thus, his convictions of armed robbery, AWIGBH, felon in possession, and felony-firearm, and his sentences were affirmed. Defendant claimed that the prosecutor's statements at trial as to defendant shooting G "like a dog" constituted prosecutor error. He contended that the prosecutor's comments were unreasonable because they raised unwarranted sympathy for G and did not prove an element of the crime. The prosecutor's statements constituted "emotional or hard language that did not result in an unfair or partial trial." The prosecutor made the statements in the context of summarizing and paraphrasing G's testimony as to the hostile manner in which he was shot. "This context made it less likely that the statements led to an unfair or partial trial because the jury would be less likely to accept what the prosecutor stated as fact and more likely to view the prosecutor's statements as a summary" of G's testimony. Further, the prosecutor's description was supported by the evidence presented at trial. G testified that defendant pointed a gun at him and demanded his possessions. When G ran away, defendant stated, "Do you think I am playing," and fired repeatedly at G, hitting him in the back. The comparison of the shooting to the shooting of a dog was not improper in light of this testimony that defendant shot G without any regard. The prosecutor used hard or emotional language, but he did so while summarizing and paraphrasing G's description of the violent way in which he was shot. Finally, defendant's claim that the prosecutor's statements were prejudicial because they created sympathy for G also failed. While G's description of the shooter differed in some respects from that of the other witnesses, the prosecutor's allegedly erroneous statements were unrelated to that inconsistency. Moreover, the trial court instructed the jury that "[t]he lawyers statements and arguments are not evidence" and that the jury "must not let sympathy or prejudice influence [its] decision." Because the jury was presumed to follow its instructions, the instructions cured any error.

 

Full Text Opinion

Issues: Sufficiency of the evidence to support the defendant's resisting and obstructing a police officer conviction; MCL 750.81d(1); People v. Corr; "Obstruction" defined (MCL 750.81d(7)(a)); The knowledge element; People v. Nichols; Claim that the trial court in defendant's bench trial should have considered the lesser charge of simple assault; Waiver; People v. Paquette

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Calhoun

e-Journal Number: 58429

Judge(s): Per Curiam – Fitzgerald, Wilder, and Owens

 

Holding that the evidence was sufficient for the trial court in the defendant's bench trial to find beyond a reasonable doubt that he knowingly resisted and obstructed a police officer in the performance of his duties, the court affirmed his conviction. The case arose from defendant's arrest at the hospital where he was recovering from injuries suffered in a car accident during a police chase. Michigan State Police Trooper F, who had pursued defendant's vehicle during the chase, and five other troopers went to defendant's hospital room. F "testified that he heard someone in the room yelling that the state police had arrived." F told defendant that he and the other troopers were going to arrest him. F stated that defendant "actively resisted" arrest, pulling himself away from him and lying on the bed, stating that he would stay in the hospital even though F had observed him walking around moments earlier. F also testified that "defendant kicked another trooper and had to be forcibly removed from his bed and double-handcuffed outside of the hospital room." To the extent defendant argued that "the trial court should have considered the lesser charge of simple assault," the evidence did not support his claim on appeal that "a lesser charge was appropriate because he had no reason to know the troopers were police officers." Further, he waived the argument by failing to request consideration of a lesser charge in the trial court. The court added that this claim was unrelated to the issue of sufficiency of the evidence and "should have been stated as a separate issue in defendant's brief on appeal."

 

Full Text Opinion

Issues: Ineffective assistance of counsel for failure to move to sever the charges; People v. Carbin; People v. Pickens; MCR 6.120(B); People v. Williams; Failure to advance a meritless argument; People v. Ericksen; Effect of the jury instructions; People v. Abraham; Sentencing; Scoring of OVs 4 & 11; People v. Hardy; People v. Moore; Claim that defense counsel failed to inform defendant of his right to testify; People v. Johnson (On Rehearing); Factual predicate; People v. Hoag; Failure to present exculpatory evidence; People v. Chapo; People v. Rockey; People v. Caballero; "Other acts" evidence; MRE 404(b); People v. Hawkins; People v. Starr; People v. Dunham; MRE 402; MRE 401; "Plain error"; People v. Carines; Restitution for uncharged act; People v. McKinley; People v. Rosenberg

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Gibson

e-Journal Number: 58412

Judge(s): Per Curiam – Saad, O'Connell, and Murray

 

The court held, among other things, that defendant did not show that defense counsel was objectively unreasonable for failing to move to sever his charges. However, because the trial court erred in scoring 25 points for OV 11, and the error affected his minimum range under the guidelines, defendant was entitled to resentencing. The court affirmed his convictions of CSC III, assault with intent to commit sexual penetration, receiving and concealing a stolen firearm, felonious assault, witness intimidation, and two counts of felony-firearm. Defendant's charges of CSC III, assault with intent to commit sexual penetration, and felonious assault "constituted 'the same conduct' that was a 'part of a single scheme or plan' of bullying and assaulting, including sexually assaulting or trying to sexually assault, the victim." Further, he was charged with storing a stolen firearm and two counts of felony-firearm related to the felonious assault (the victim was pistol-whipped) and the storing of a stolen firearm charges. "The firearm charges were properly joined with the rest of the charges because defendant's possession and use of a firearm during the felonious assault were relevant," and the evidence supported that he was abusive and assaultive to the victim, which was pertinent to explain why the victim delayed reporting the CSC and the assault with the gun to the police. The storing a stolen firearm and the related count of felony-firearm "were also properly joined with the rest of the charges because the presence of firearms, which the victim knew about, was also relevant to why the victim was afraid of defendant and delayed reporting" his acts. Finally, evidence as to all of these charges was necessary in order to explain the witness intimidation charge. Defendant's charges were related, and as a result, joinder was proper. As joinder was proper, "defense counsel was not objectively unreasonable for failing to move to sever the charges." Remanded for resentencing.

 

Full Text Opinion

Issues: Sufficiency of the evidence to support the defendant's first-degree child abuse conviction; MCL 750.136b(2); People v. Maynor; People v. Lundy; "Serious physical harm" defined (MCL 750.136b(1)(f)); Intent; People v. Pena; "Other acts" evidence; MRE 404(b); "Plain error" review; People v. Carines; Sentencing; Scoring of OVs 3 & 7; People v. Hardy; MCL 777.33(1)(c); MCL 777.31(1)(a); People v. Glenn; Judicial fact-finding; People v. Herron

Court: Michigan Court of Appeals (Unpublished)

Case Name: People v. Valdez

e-Journal Number: 58399

Judge(s): Per Curiam – Fitzgerald and Sawyer; Dissent – Shapiro

 

Holding that the evidence the defendant caused the child's rib fractures was sufficient to support his conviction, and that a rational trier of fact could find he had sufficient intent to commit first-degree child abuse, the court affirmed his conviction. It also upheld his sentence, as a second offense habitual offender, to 175 to 270 months in prison, concluding that the trial court did not err in scoring 25 points for OV 3 and 50 points for OV 7. During an argument with his girlfriend, defendant picked up her infant son "and yanked him out of a car seat." Later that day, she took the child to the hospital, "where doctors discovered multiple rib fractures, other broken bones, and bruises." At a police interview, defendant explained that the safety strap covering the child's chest and legs was still on the child when he yanked him out of the car seat. "Defendant first grabbed the child's arm, and then grabbed and squeezed his body. When defendant pulled on the child, the child's legs got caught in the straps and the child cried out." A medical expert testified that defendant's actions could have caused the rib fractures and injuries. "Serious physical harm" is defined to include "a skull or bone fracture." Thus, a rational trier of fact could find beyond a reasonable doubt that "defendant caused serious physical harm to the child." While he "said that he did not mean to hurt the child, circumstantial evidence, such as defendant's statement admitting his actions, the severity of the injuries, the fact that the injuries were caused by 'excessive force,' and the fact that defendant did not seek aid and even informed his girlfriend that the child did not need to be hospitalized," were sufficient to establish his intent. The court also concluded that any error in the admission of the challenged other acts evidence "was harmless in light of the overwhelming evidence that defendant committed the acts that injured the child," that his "description of what occurred was consistent with causing the rib fractures," and that he had the requisite intent. Further, as to the scoring of the OVs, the evidence supported a finding "that the child suffered '[l]ife threatening or permanent incapacitating injury,'" and that "defendant's conduct constituted excessive brutality."

 

Full Text Opinion
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