Sentencing; Fourth-offense habitual offender enhancement; MCL 769.13; Notice; People v Head; Claim that the prosecution filed & served the notice of intent too early; Ineffective assistance of counsel; Prejudice; Scoring of OVs 11 & 13; MCL 777.43(1)(c) & (2)(a); The law of the case doctrine; Reasonableness & proportionality challenge to a within-guidelines sentence; People v Armisted; Unusual circumstances; People v Lee

The court disagreed with defendant that the prosecution violated MCL 769.13 by filing the notice of intent to seek an enhanced sentence before the arraignment, and concluded that any error was harmless given that he received actual notice at the arraignment. His challenge to OV 11 was barred by the law of the case doctrine, and the court upheld the 25-point score for OV 13. Finally, he did not show unusual circumstances allowing it to find that his within-guidelines sentences were disproportionate. Thus, it affirmed his CSC III and IV convictions, as well as his sentences as a fourth-offense habitual offender to concurrent terms of 18 years and 2-1/2 months to 40 years for CSC III, and 5 to 15 years for CSC IV. Defendant argued “that under MCL 769.13(1) the notice must be filed after the arraignment or, if arraignment is waived, after the filing of the information.” The court declined to adopt this interpretation, noting that it reads statutory language in context and construes it reasonably. The purpose of the statute is to provide a defendant notice. Thus, “the Legislature likely intended ‘within 21 days after the defendant’s arraignment’ and ‘within 21 days after the filing of the information’ to be a deadline after which the prosecutor cannot file the notice.” He did not offer any reason why it “would have intended to preclude filing of notice before the arraignment or information.” In addition, in light of the holding in Head “that the failure to strictly comply with MCL 769.13’s proof of service requirement is harmless error when the defendant received timely notice of the prosecutor’s intent to seek an enhanced sentence,” the court did not see how early filing of the notice warranted reversal when he “received actual notice at the arraignment. In sum, under the circumstances of this case the prosecution’s failure to file a proof of service of the notice of intent to seek an enhanced sentence was a harmless error. Defendant received timely notice of his fourth-offense habitual offender status, which fulfilled the purpose of the statute.” The court also rejected his related ineffective assistance of counsel claim due to the lack of prejudice.

Plea agreement; Scope of an appellate waiver; United States v. Toth; Validity; Bradshaw v. Stumpf; Whether 18 USC § § 111(a)(1) & (b) requires “intent to cause bodily injury”; United States v. Kimes; United States v. Rafidi; United States v. Jackson (7th Cir.); United States v. Arrington (DC Cir.); United States v. Ettinger (11th Cir.); Sentencing; 18 USC § 3553(a); Gall v. United States; Procedural reasonableness; United States v. Rayyan; Substantive reasonableness; Holguin-Hernandez v. United States; United States v. Boucher; Applicability of the USSG §§ 2A2.4(b)(1)(B) & 2D1.1(b)(1) enhancements; “Dangerous weapon”; USSG § 1B1.1, comment., n.1(E); United States v. Tolbert; Molotov cocktails as dangerous weapons; Effect of an above-Guidelines sentence; United States v. Thomas; Whether this case fell in the “mine-run” of drug trafficking & assault cases; United States v. Perez-Rodriguez

In an issue of first impression, the court held that § 111(b), which proscribes using a deadly or dangerous weapon against federal officers, is a “general intent” crime. Defendant-Milliron pled guilty to several offenses arising from his initiation of a 35-mile, high-speed chase with police. During the chase, he tossed home-made incendiary devices from his mobile meth lab at the police cars before eventually crashing into a building. He was sentenced to 110 months in prison. His motion to withdraw his guilty plea was denied. On appeal, he first claimed that the district court applied the wrong legal standard in denying his motion, but the court held that he waived this issue in his guilty plea. His plea agreement contained a waiver provision, in which he waived his right to appeal the sentence or conviction. Based on this waiver, “only challenges to the validity of the plea agreement and the appeal waiver” could be considered. The court rejected his claim that the agreement was invalid because his attorney failed to inform him of an essential element of violating §§ 111(a)(1) and (b)—that he must have intended to cause bodily injury. The court disagreed, noting that § 111(a)(1) has been held to be a general intent crime. Further, it joined other circuits by holding that § 111(b) “does not contain a specific intent requirement.” Thus, the court concluded that he “was well-informed of all the essential elements” of §§ 111(a)(1) and (b), and as a result, he “knowingly and voluntarily agreed to the plea agreement and appeal waiver.” The court also rejected his reasonableness challenges to his sentences. It upheld the application of enhancements under §§ 2A2.4(b)(1)(B) and 2D1.1(b)(1) based on his use of dangerous weapons (Molotov cocktails). It further held that his sentence was not substantively unreasonable where it was above the Guideline range by 14 months. Affirmed.

Medical malpractice; Cox v Hartman; Proximate cause; O’Neal v St John Hosp & Med Ctr; Speculative theory; Ykimoff v Foote Mem’l Hosp; Attempt to improperly expand the record on appeal; Leave to amend the complaint; Church & Church, Inc v A-1 Carpenter

Concluding that plaintiff’s causation theory in this medical malpractice case was speculative, and that he did not show a breach of the standard of care (SOC), the court affirmed summary disposition for defendants. It also upheld the denial of his request to again amend his complaint where his proposed amendment suffered from the same defects as his first amended complaint. The court first rejected plaintiff’s request that it consider the notes he allegedly “made before and after his doctor visits, as well as his various medical records,” determining that was “an attempt to improperly expand the record on appeal.” As to causation, the court found that he simply assumed that because defendant-Seyfried breached the SOC, the symptoms he was experiencing were “a direct result of that breach. Plaintiff has no direct evidence of further injury as a result of the delay in surgery. The circumstantial evidence plaintiff relies on—i.e., the fact that his symptoms worsened between [5/23/16] and [6/7/16]—presents the possibility, but not the probability, that Dr. Seyfried’s alleged breach of the” SOC caused his injury. This was not sufficient to create a genuine issue of material fact on causation. Further, plaintiff’s own medical expert (Dr. H) testified there would be no breach of the SOC “if it were the case that plaintiff’s symptoms were stabilized by the cervical collar. Because plaintiff consistently testified that his symptoms were stabilized by the collar,” he did not show that Seyfried breached the SOC put forth by H. He also did not offer any direct evidence of causation in his proposed amended complaint, instead again relying “on circumstantial evidence and speculative inference[.]” Thus, the amendment would be futile.

Article III standing; Spokeo, Inc. v. Robins; Particularized injury; Lance v. Coffman; A concrete injury; Buchholz v. Meyer Njus Tanick, PA; Invasion of a legally protected interest; Steel Co. v. Citizens for a Better Env’t; Takings Clause violation; Coalition for Gov’t Procurement v. Federal Prison Indus., Inc.; Alamo Land & Cattle Co. v. Arizona; Effect of the fact a claim may fail on the merits; Trump v. Hawaii; “Colorable” or “arguable” claim; Reoforce, Inc. v. United States (Fed. Cir.); Booker-El v. Superintendent, IN State Prison (7th Cir.)

The court held that plaintiff-CHKRS had standing to bring its Takings Clause claim against defendant-City of Dublin where it asserted a nonfrivolous argument that it had a legally protectable property interest to support the claim. CHKRS alleged that City violated the Takings Clause when it failed to pay compensation after tearing out its driveway and replacing it with a defective one. The district court ruled that CHKRS lacked standing because the state court had previously ruled that it lacked a protectable property interest. The court found that the district court erred by confusing the Fifth Amendment Takings Clause’s substantive requirements with Article III’s jurisdictional requirements, and held that “[a]s long as a plaintiff has asserted a colorable legal claim (and has met standing’s other elements), the plaintiff has satisfied Article III and the court may resolve the claim on its merits.” CHKRS alleged that the City trespassed onto its property, destroyed the driveway, and later replaced it with a defective driveway. “CHKRS had a lease interest in the property at the time and now owns it outright.” The court concluded that its claims alleged a “particular” and “concrete” injury, and that CHKRS plausibly alleged the invasion of a legally protected interest. The district court erred by conflating the merits of CHKRS’s takings claim with its standing to bring that claim. “[J[ust because a plaintiff’s claim might fail on the merits does not deprive the plaintiff of standing to assert it.” But CHKRS abandoned its due-process claims by failing to respond to the City’s arguments in its motion for judgment on the pleadings. Thus, the court reversed the grant of judgment on the pleadings to the City as to the takings claim, affirmed it as to the due-process claims, and remanded.

Medical malpractice; Cox v Hartman; Proximate cause; O’Neal v St John Hosp & Med Ctr; Speculative theory; Ykimoff v Foote Mem’l Hosp; Attempt to improperly expand the record on appeal; Leave to amend the complaint; Church & Church, Inc v A-1 Carpenter

Concluding that plaintiff’s causation theory in this medical malpractice case was speculative, and that he did not show a breach of the standard of care (SOC), the court affirmed summary disposition for defendants. It also upheld the denial of his request to again amend his complaint where his proposed amendment suffered from the same defects as his first amended complaint. The court first rejected plaintiff’s request that it consider the notes he allegedly “made before and after his doctor visits, as well as his various medical records,” determining that was “an attempt to improperly expand the record on appeal.” As to causation, the court found that he simply assumed that because defendant-Seyfried breached the SOC, the symptoms he was experiencing were “a direct result of that breach. Plaintiff has no direct evidence of further injury as a result of the delay in surgery. The circumstantial evidence plaintiff relies on—i.e., the fact that his symptoms worsened between [5/23/16] and [6/7/16]—presents the possibility, but not the probability, that Dr. Seyfried’s alleged breach of the” SOC caused his injury. This was not sufficient to create a genuine issue of material fact on causation. Further, plaintiff’s own medical expert (Dr. H) testified there would be no breach of the SOC “if it were the case that plaintiff’s symptoms were stabilized by the cervical collar. Because plaintiff consistently testified that his symptoms were stabilized by the collar,” he did not show that Seyfried breached the SOC put forth by H. He also did not offer any direct evidence of causation in his proposed amended complaint, instead again relying “on circumstantial evidence and speculative inference[.]” Thus, the amendment would be futile.

Auto negligence; Tort liability for noneconomic loss; MCL 500.3135(1); Serious impairment of body function; McCormick v Carrier; MCL 500.3135(5)(c); Effect of the fact a doctor had not restricted plaintiff’s activities; Piccione v Gillette

Concluding that the trial court erred in ruling “that plaintiff’s injuries did not affect her general ability to lead her normal life[,]” the court reversed summary disposition for defendant-Debassige and remanded. This case arose after he “drove his vehicle through the front of plaintiff’s house, dislodging the front door, causing it to land on top of her.” The court noted she testified at her deposition over a year and a half later “that, before the accident, she spent her time working, riding on the back of a motorcycle, walking her dog, camping at a trailer she owned, and swimming. Plaintiff testified that her injuries prevented her from performing some of her usual janitorial tasks that required her to use both arms because she had problems with her left arm and shoulder. Although her employer accommodated her physical needs by limiting her use of certain machinery that required both arms for operation,” she did not ever return “to her preaccident physical condition. Further, after the accident, plaintiff went camping less frequently, and when she did camp, she could no longer walk around or serve food like she used to do. She also testified that since the accident she has been completely unable to ride on a motorcycle, walk her dog, take walks without experiencing leg problems, or swim.” In addition, her medical records reported “she experienced ‘a loss of motion,’ ‘a loss of sensation,’ and pain that became ‘worse with activity.’” Her 2019 physical therapy records indicated “that her injuries limited her ability to wash herself, dress herself, and perform tasks around her house without” help. They also indicated “she was unable to walk, sit, or stand for more than a brief amount of time. The medical records describe significant effects on plaintiff’s social life and ability to sleep.” Although an evaluation in 2019 showed “improvement in several areas, it still described limitations on plaintiff’s social life, ability to perform household tasks such as lifting objects and vacuuming, and ability to sleep.” She testified to these limitations at her deposition. Noting that the fact a physician had not restricted her activities was not fatal to her case, the court held that there was a genuine issue of material fact as to “whether her injuries affected her general ability to lead her normal life establishing a serious impairment of bodily function.”

Sentencing for violating a PPO; Consecutive sentencing; Moot issue

Given that respondent had already served the consecutive sentences that she challenged on appeal, the court dismissed her appeal as moot. She committed multiple violations of a PPO petitioner (her mother) had obtained against her. When it sentenced her in 2019, “the trial court ordered her to serve 93 days in jail for a previously suspended sentence, and 93 days in jail for the latest violation” consecutively, rather than concurrently. The consecutive nature of the sentencing was her only issue on appeal. The court noted that even if it concluded that the trial court erred (an issue it did not reach), it could not undo the time respondent had served. Further, she did not identify “any collateral legal consequences that she will suffer due solely to the consecutive nature of the sentences. A decision on the merits by this Court would have no practical effect on the case, and it is well established that this Court will not decide a moot issue.” It also declined to apply any of the exceptions to the mootness doctrine.

Will contest; Requirements of a valid will; MCL 700.2502; Testamentary capacity; MCL 700.3407(1)(c); In re Skoog Estate; Principle that appointment of a guardian is not conclusive of a testator’s capacity to validly draft & execute a will; In re Paquin’s Estate; Effect of proof of old age, physical weakness, or forgetfulness in showing a lack of mental capacity; In re Sprenger’s Estate; Undue influence; In re Karmey Estate; In re Peterson Estate; In re Williams Estate

The court held that the probate court did not err by declaring a will executed by the decedent invalid on the basis that she lacked testamentary capacity to execute it and that it was the product of petitioner’s undue influence. On appeal, the court rejected petitioner’s argument that the probate court erred by denying admission of the will because the contestants failed to overcome the presumption that the decedent possessed the requisite testamentary capacity to execute it. “[T]he evidence supports the probate court’s finding that [the decedent] was unable to plan and effect any testamentary conveyances, without prompting and interference from others.” It also rejected petitioner’s claim that the contestants failed to establish that the will was the product of undue influence. The probate court did not err when it found that petitioner “was not able to successfully rebut the presumption of undue influence.” Further, the contestants met their burden of proving undue influence. Affirmed.

Will contest; Requirements of a valid will; MCL 700.2502; Testamentary capacity; MCL 700.3407(1)(c); In re Skoog Estate; Principle that appointment of a guardian is not conclusive of a testator’s capacity to validly draft & execute a will; In re Paquin’s Estate; Effect of proof of old age, physical weakness, or forgetfulness in showing a lack of mental capacity; In re Sprenger’s Estate; Undue influence; In re Karmey Estate; In re Peterson Estate; In re Williams Estate

The court held that the probate court did not err by declaring a will executed by the decedent invalid on the basis that she lacked testamentary capacity to execute it and that it was the product of petitioner’s undue influence. On appeal, the court rejected petitioner’s argument that the probate court erred by denying admission of the will because the contestants failed to overcome the presumption that the decedent possessed the requisite testamentary capacity to execute it. “[T]he evidence supports the probate court’s finding that [the decedent] was unable to plan and effect any testamentary conveyances, without prompting and interference from others.” It also rejected petitioner’s claim that the contestants failed to establish that the will was the product of undue influence. The probate court did not err when it found that petitioner “was not able to successfully rebut the presumption of undue influence.” Further, the contestants met their burden of proving undue influence. Affirmed.

Whether an injury is compensable under the Worker’s Disability Compensation Act (WDCA) (MCL 418.101 et seq); MCL 418.301(1); Whether the injury was work-related; Rakestraw v General Dyamics Land Sys, Inc; Smith v Chrysler Group, LLC; Camburn v Northwest Sch Dist (After Remand); Ream v L E Myers Co; Scope of Michigan Compensation Appellate Commission (MCAC) review; MCL 418.861a; Mudel v Great Atl & Pac Tea Co

Holding that the magistrate erred by finding plaintiff’s death arose out of and in the course of his employment with defendant-LexaMar, and thus was compensable under the WDCA, the court reversed. Plaintiff was killed in a car accident while traveling from work to school. The magistrate found he was entitled to workers’ compensation, finding his travel was supported by and benefitted defendant, which reimbursed a portion of his tuition. On appeal, the court rejected defendant’s argument that, in reviewing the decision of the magistrate, the MCAC failed to conduct a qualitative or quantitative analysis of the record, “failed to make specific findings, and failed to reference the statutory framework that it applied.” It found that “the MCAC’s review was sufficient to discharge its statutory obligation.” However, it agreed with defendant that the MCAC erred as a matter of law by finding plaintiff’s death occurred within the course of his employment. There were no facts presented to support the magistrate’s finding that the college classroom was a “job location” where plaintiff was expected to perform job duties on LexaMar’s behalf. Further, the magistrate’s finding that defendant strongly encouraged plaintiff to take the class was a legal conclusion that expanded existing case law. Neither Smith, Camburn, "nor Ream support the legal conclusion that an employer’s offer of the fringe benefit of free education, no matter how tempting, is the equivalent of compelling the employee to participate in the offered education as part of the employee’s job duties.” Rather, the facts here were “more closely analogous to the facts in Camburn, in which our Supreme Court held that the employee’s injuries were non-compensable. As in Camburn, the employer in this case arguably received a benefit when [plaintiff] gained classroom knowledge that could be used at work and also by trying the method of having employees travel to the college for instruction. However, the fact that an employer someday may benefit from an employee’s training is insufficient to trigger worker’s compensation coverage and does not rise to the level of a ‘special mission’ for the employer, or to the employer deriving a ‘special benefit’ at the time of the employee’s injury.” Thus, the magistrate erred by finding there was a “sufficient nexus” between plaintiff’s employment and his death “to support the legal conclusion that his death arose in the course of his employment.”