Parole revocation; In re Parole of Bivings; Right to be free from compelled self-incrimination; People v. Clary; People v. Akins; People v. Shafier; People v. White; Principle that parole revocation is not part of a criminal prosecution; Morrissey v. Brewer; United States v. Riley (4th Cir.); United States v. Hulen (9th Cir.); Credibility; People v. Metamora Water Serv., Inc.; Waived issue; People v. Carter; People v. Kowalski; Constructive possession; People v. Minch; People v. Johnson; People v. Wolfe; People v. LaFountain; People v. Flick; The Administrative Procedures Act (MCL 24.201 et seq.); The Parole Board as an administrative body; Morales v. Michigan Parole Bd.; Review of an administrative agency’s decision; Dignan v. Michigan Pub. Sch. Employees Ret. Bd.; Huron Behavioral Health v. Department of Cmty. Health; MCL 24.306(1); Ranta v. Eaton Rapids Pub. Sch. Bd. of Educ.; Dana v. American Youth Found.; VanZandt v. State Employees Ret. Sys.; The court’s review of the circuit court’s decision; Davis v. State Employees’ Ret. Bd.; Mericka v. Department of Cmty. Health; National Wildlife Fed’n v. Department of Envtl. Quality (No. 2); In re Elias

The court held that because the constitutional protection against self-incrimination was not implicated by voluntary statements, the administrative law examiner (ALE) did not violate petitioner’s rights by considering his statements and drawing reasonable inferences from his conduct and statements. Thus, the court affirmed the circuit court’s order affirming the revocation of his parole and remanding for the parole board to reconsider the “penalty/mitigation phase” of the parole revocation proceedings. Petitioner argued, among other things, that the ALE “violated his Fifth Amendment right against self-incrimination by drawing an inference from his conduct and statements after the guns were found and the fact that he encouraged” the woman he was with (H) during the police encounter to remain silent. His claim of error rested “on the questionable assumption that the same rules governing self-incriminating statements in criminal prosecutions apply to parole revocation hearings.” The court noted that other “jurisdictions have held that self-incriminating statements are admissible in comparable proceedings that fall outside the scope of a criminal prosecution.” But it was unnecessary for the court to determine to what extent the right against compelled self-incrimination applies to parole revocation hearings here. “Assuming, without deciding, that the ALE could not consider silence that would be inadmissible in the context of a criminal prosecution, petitioner’s argument lacks merit as a matter of law under the facts of this case.” The ALE cited several reasons for finding his testimony unbelievable. In pertinent part, the ALE noted that he ‘“repeatedly told Ms. [H], “you don’t know anything” and encouraged her not to speak to the police’ after the guns were discovered inside the vehicle to which he held the keys and used to unlock the vehicle.” The ALE found “that petitioner would have no reason to make such statements, or engage in other suspicious behavior, if petitioner lacked awareness that the firearms were in the vehicle.” The record reflected that he voluntarily and spontaneously shouted statements to H. “He did not exercise his right to remain silent, nor did the police compel him to speak against his interest.” The court held that his “remarks were not the product of a custodial interrogation. The ALE could draw the negative inference of guilt from the evidence presented of petitioner’s conduct and unsolicited speech.” Petitioner admitted that his advice to H “did not arise in response to police interrogation. Although petitioner misconstrues the significance of that fact, it demonstrates that his statements were voluntary, rather than the product of interrogation or police coercion.”

Divorce; Personal injury damages caused by domestic violence; Future damages; MCL 600.6301; Factual findings after a bench trial; Chapdelaine v. Sochocki; MCR 2.517(A)(1) & (2); Triple E Produce Corp. v. Mastronardi Produce, Ltd.; People v. Johnson (On Rehearing); Admission of a certified copy of a nolo contendere plea; Nashal v. Fremont Ins. Co.; Lichon v. American Universal Ins. Co.; MRE 410; Harmless error; MRE 103(a); Sparling Plastics Indus., Inc. v. Sparling; Attorney fees; Cassidy v. Cassidy; Reed v. Reed; MCR 3.206(D); MCL 552.13(1); Souden v. Souden; Reasonableness; Smith v. Khouri; Pirgu v. United Servs. Auto Ass’n

In this divorce case, the court affirmed the award of future damages for personal injury, vacated the attorney fee award, and remanded. Plaintiff-Julia filed for divorce from defendant-Craig and sought financial recovery for personal injury damages caused by his domestic violence. He defended by accusing her of physical abuse. He contended that the trial court erred by admitting a certified copy of his nolo contendere plea into evidence. The evidence “would only be admissible to support Julia’s defense to Craig’s counterclaim of assault and battery perpetrated by her.” For purposes of this appeal, the court presumed “that the trial court abused its discretion in preventing Craig from voluntarily dismissing his assault and battery counterclaim. Absent this counterclaim, the plea would have been inadmissible.” Thus, the trial court abused its discretion in admitting evidence of Craig’s nolo contendere plea. But he was not entitled to relief as its admission was ultimately harmless. “Julia testified at length about the assault perpetrated by Craig. She presented photographs of her injuries, physician testimony, and medical records that corroborated her testimony and contradicted Craig’s version of events.” The trial court credited Julia’s evidence over Craig’s and the court “may not interfere with that judgment.” The fact he pled “no contest to felonious assault and domestic violence was a mere drop in the evidentiary bucket.” Craig also challenged “the sufficiency of the trial court’s factual findings supporting its award of $250,000 in future damages, as well as certain elements of that award.” However, the court concluded that the trial “court’s factual findings sufficed to support its award and to enable our review.” Contrary to his arguments, the trial “court clearly explained that Julia’s ‘fright, shock, and humiliation’ are ongoing and that she continues to suffer damages from the effects of at least tinnitus and her brain injury.” But the trial court erred when it did not make any findings as to the reasonableness of the attorney fee award, “let alone consider any Pirgu factor on the record[,]” and thus, the court had to vacate that award and remand for the required analysis.

Divorce; Jurisdiction after the entry of the final order that disposed of all claims & closed the case; MCL 600.605; Const. 1963, art. 6, § 1; MCL 600.1021(1)(a); Subject-matter jurisdiction; Usitalo v. Landon; Altman v. Nelson; Effect of an order of dismissal; Baskin v. Dingeman; Souden v. Souden; Yedinak v. Yedinak; Attorney fees; MCL 552.13; MCR 3.206(D); Reed v. Reed; Detroit Pub. Schs. v. Connecticut; Statutory interpretation; Hill v. LF Transp., Inc.; MCL 552.13(1); Ryan v. Ryan; MCL 552.6; DePew v. DePew; Johnson v. White; Distinguishing Stackhouse v. Stackhouse; Dillon v. Shiawassee Circuit Judge; Binkow v. Binkow

Holding that “the trial court lacked jurisdiction after the entry of the final order that disposed of all claims and closed the” case, the court reversed the trial court’s order that held it still had jurisdiction to decide the petitioner-attorney’s petition for attorney fees and ordered that a hearing be held to determine the amount, if any, she was entitled to recover. The trial court determined “that it had jurisdiction, after dismissal of the parties’ divorce case pursuant to a stipulated order for dismissal that resolved the last pending claim and closed the case, to decide petitioner’s petition for costs and attorney fees from defendant for petitioner’s representation of plaintiff.” To the extent that it “relied on MCL 552.13(1) and MCR 3.206(D)” in doing so, the court held that it erred as a matter of law. MCL 552.13 applied while the divorce action was pending, “but once the trial court entered its final order and closed the case, that statutory provision no longer applied.” MCR 3.206(D) did not apply because petitioner was not a party to the divorce case. The trial court also incorrectly read DePew “to extend the trial court’s jurisdiction to render decisions after final dismissal and closure of a divorce case.” DePew did not go that far. Had the parties here stipulated to the trial court’s retention of jurisdiction as to the attorney fee dispute, as in DePew, it would have retained jurisdiction. But the parties here did not do so, and thus, DePew was inapposite. Further, the court held that Stackhouse was “inapposite because the trial court in that case had not entered a final order closing the case after the plaintiff’s death. Although the trial court could not enter a judgment of divorce following the plaintiff’s death, the case remained pending during which ancillary issues such as the attorney fees dispute could be determined by the trial court under MCL 552.13.” Unlike Stackhouse, the trial court here entered a final order dismissing the action and closing the case. This case was akin to Dillon and Binkow. “The trial court’s order constituted a final order that disposed of all claims and closed the case. Once closed, the trial court lacked jurisdiction to enter further orders. The final order divested” it of jurisdiction over the divorce case and “of jurisdiction to decide ancillary matters such as the attorney fees petition.” Because its jurisdiction was entirely governed by statute, and its “authority to order a party to pay the other party’s attorney fees is governed by MCL 552.13(1), which specifically limits doing so during the divorce action’s pendency, the trial court erred by holding that it had jurisdiction to consider and decide the petition.”

Parole revocation; In re Parole of Bivings; Right to be free from compelled self-incrimination; People v. Clary; People v. Akins; People v. Shafier; People v. White; Principle that parole revocation is not part of a criminal prosecution; Morrissey v. Brewer; United States v. Riley (4th Cir.); United States v. Hulen (9th Cir.); Credibility; People v. Metamora Water Serv., Inc.; Waived issue; People v. Carter; People v. Kowalski; Constructive possession; People v. Minch; People v. Johnson; People v. Wolfe; People v. LaFountain; People v. Flick; The Administrative Procedures Act (MCL 24.201 et seq.); The Parole Board as an administrative body; Morales v. Michigan Parole Bd.; Review of an administrative agency’s decision; Dignan v. Michigan Pub. Sch. Employees Ret. Bd.; Huron Behavioral Health v. Department of Cmty. Health; MCL 24.306(1); Ranta v. Eaton Rapids Pub. Sch. Bd. of Educ.; Dana v. American Youth Found.; VanZandt v. State Employees Ret. Sys.; The court’s review of the circuit court’s decision; Davis v. State Employees’ Ret. Bd.; Mericka v. Department of Cmty. Health; National Wildlife Fed’n v. Department of Envtl. Quality (No. 2); In re Elias

The court held that because the constitutional protection against self-incrimination was not implicated by voluntary statements, the administrative law examiner (ALE) did not violate petitioner’s rights by considering his statements and drawing reasonable inferences from his conduct and statements. Thus, the court affirmed the circuit court’s order affirming the revocation of his parole and remanding for the parole board to reconsider the “penalty/mitigation phase” of the parole revocation proceedings. Petitioner argued, among other things, that the ALE “violated his Fifth Amendment right against self-incrimination by drawing an inference from his conduct and statements after the guns were found and the fact that he encouraged” the woman he was with (H) during the police encounter to remain silent. His claim of error rested “on the questionable assumption that the same rules governing self-incriminating statements in criminal prosecutions apply to parole revocation hearings.” The court noted that other “jurisdictions have held that self-incriminating statements are admissible in comparable proceedings that fall outside the scope of a criminal prosecution.” But it was unnecessary for the court to determine to what extent the right against compelled self-incrimination applies to parole revocation hearings here. “Assuming, without deciding, that the ALE could not consider silence that would be inadmissible in the context of a criminal prosecution, petitioner’s argument lacks merit as a matter of law under the facts of this case.” The ALE cited several reasons for finding his testimony unbelievable. In pertinent part, the ALE noted that he ‘“repeatedly told Ms. [H], “you don’t know anything” and encouraged her not to speak to the police’ after the guns were discovered inside the vehicle to which he held the keys and used to unlock the vehicle.” The ALE found “that petitioner would have no reason to make such statements, or engage in other suspicious behavior, if petitioner lacked awareness that the firearms were in the vehicle.” The record reflected that he voluntarily and spontaneously shouted statements to H. “He did not exercise his right to remain silent, nor did the police compel him to speak against his interest.” The court held that his “remarks were not the product of a custodial interrogation. The ALE could draw the negative inference of guilt from the evidence presented of petitioner’s conduct and unsolicited speech.” Petitioner admitted that his advice to H “did not arise in response to police interrogation. Although petitioner misconstrues the significance of that fact, it demonstrates that his statements were voluntary, rather than the product of interrogation or police coercion.”

Sentencing; Whether “MCR 6.302(B)(2) requires courts to inform defendants of discretionary consecutive-sentencing authority before accepting a guilty or no-contest plea”; People v. Johnson; People v. Blanton; Interpretation of MCR 6.302(B)(2); Communications from the trial court to a defendant regarding its discretionary consecutive sentencing authority & the consequences; People v. Traver; People v. Comer; “Maximum possible prison sentence”; People v. Duncan; Consecutive sentences defined; MCL 768.7b; People v. Bonner; MCR 1.107

Addressing an issue of first impression, the court held “that MCR 6.302(B)(2) requires the trial court, in cases in which such advice is relevant, to advise a defendant of its discretionary consecutive-sentencing authority and the possible consequences of that authority for the defendant’s sentence. This is because such authority clearly affects the defendant’s ‘maximum possible prison sentence for the offense.’” As a result, the trial court in this case “erred when it denied defendant’s motion to withdraw his plea because the court failed to apprise defendant of this authority and its possible consequences for his sentence.” Thus, the court reversed the judgment of the Court of Appeals and remanded to the trial court to allow him the opportunity to either withdraw his guilty plea or to reaffirm the plea. The prosecution argued “that the court rule does not explicitly require the trial court to inform defendants of discretionary consecutive-sentencing authority. Rather, trial courts are only required to advise a defendant of the ‘maximum possible prison sentence for the offense,’ meaning that they are only required to inform defendants of the maximum sentence for each separate or discrete conviction.” That was done here - "the trial court properly advised defendant that the maximum possible prison sentence for each of his OWI-3rd convictions was five years’ imprisonment.” The court held that neither Johnson nor Blanton clearly resolved the issue. It turned “to MCR 6.302(B)(2) to assess what course must be followed by the trial court concerning communications to a defendant regarding its discretionary consecutive sentencing authority and the consequences of that authority for" the ultimate sentence. It held that when a trial court advises a defendant of his or her “maximum possible prison sentence,” this must encompass not only the “maximum possible prison sentence” for each individual “offense,” but also the “maximum possible prison sentence” for the conviction of “offenses” specifically as to which the trial court possesses an authority to impose consecutive sentences. Defendant here “was instructed that each OWI-3rd conviction carried a five-year maximum term of imprisonment, which, if imposed concurrently, would amount to a maximum possible sentence of five years’ imprisonment. However, because of the trial court’s discretionary consecutive-sentencing authority, defendant actually faced, and received, a maximum possible sentence of 10 years.” This was the “maximum possible prison sentence for the offenses.” Ultimately, the court was “persuaded that requiring the trial court to advise a defendant of the possibility of consecutive sentencing is consistent with ‘the intent of MCR 6.302(B)(2), which is that a defendant be informed beforehand of the maximum sentence that would follow his or her plea of guilty.’” Thus, in accordance with the “court rules, the trial court must disclose its consecutive-sentencing authority in order to ensure, as in Brown, that the defendant accurately understands his ‘true potential maximum sentence.’”

Dissenting Justices Zahra and Viviano determined “that the plain language of MCR 6.302(B) does not support the conclusion that trial courts must advise criminal defendants that sentences may potentially be imposed consecutively to one another.” Further, they disagreed “with the majority’s decision to add by judicial construction that which the court has repeatedly declined to add in drafting MCR 6.302(B). Lastly, the possibility of consecutive sentences pursuant to MCL 768.7b is a ‘collateral’ consequence of defendant’s guilty pleas, not a ‘direct result’ of the guilty pleas, because the trial court had discretion whether to impose consecutive sentences. Accordingly, due process did not require that the trial court inform defendant that he was subject to consecutive sentencing.”

Whether there was sufficient evidence to bind defendants over; People v. Cervi; Preliminary exam; People v. Bennett; People v. Hunt; Probable cause; People v. Greene; Consciousness of guilt; People v. Seals; Credibility determination; MRE 608; People v. Anderson; People v. Paille; Expert testimony; MRE 702; Beadle v. Allis; People v. Yost; The corpus delicti rule; People v. Burns; People v. White; People v. Modelski; People v. McMahan; Second-degree vulnerable adult abuse; MCL 750.145n(2); People v. DeKorte; Reckless act; MCL 750.145m(p); “Deliberate disregard”; People v. Hudson; Felony-murder; MCL 750.316(1)(b); People v. Nowack; Involuntary manslaughter; MCL 750.321; People v. Mendoza; People v. Zak

Holding that there was sufficient evidence to bind defendants over on the charges, the court reversed the circuit court’s order, vacated the district court’s order of dismissal, and remanded. Defendants were charged with second-degree vulnerable adult abuse, felony-murder, and involuntary manslaughter in the death of their mother, who suffered from a serious degenerative disease, and for whom they were caregivers. The district court dismissed the charges, finding the prosecution failed to establish probable cause of intent and causation. The circuit court affirmed. On appeal, the court found that the district court “abused its discretion by weighing and failing to credit some of the evidence, rather than binding the case over for a jury to make such a determination.” The majority disagreed with the dissent’s contention that the magistrate properly rejected the assistant medical examiner’s (Dr. S) testimony as lacking credibility, noting the rejection of Dr. S’s testimony “by the magistrate and the dissent was not and could not have been based on a finding of lack of credibility, and therefore was improper.” The majority also disagreed with the dissent’s contention that defendants’ statements were inadmissible pursuant to the corpus delicti rule. “The dissent essentially conducts a mini-trial and dismisses the possible evidentiary value of such evidence, opining that ‘True, their house was dirty, there could have been more food in the house, and perhaps in a panic, they made a poor choice to transport [their mother] to the emergency room following her death.’ Such an approach is erroneous.” The court next found that there was sufficient evidence to bind defendants over on each of the charges. Given that they were both “caregivers and thus shared in the responsibility for the condition of the house, as well as [a] false statement at the hospital that [she] had been conscious and speaking in the car but then passed out, there [wa]s sufficient evidence to bind defendants over on” the second-degree vulnerable adult abuse charge. Further, their shared responsibility for her “care, together with [the] false statement about her speaking in the car on the way to the hospital, together with Dr. [S’s] testimony,” were sufficient to find they “rightly believed they had not provided [her] proper nutrition and that this withholding of food had caused her death.” As such, there was sufficient evidence to bind them over on the involuntary manslaughter charge. Finally, “by withholding sufficient food, defendants would have had knowledge that death or great bodily harm was the probable result.” Thus, there was sufficient evidence to bind them over on the felony-murder charge.

Sufficiency of the evidence; Resisting or obstructing a police officer; MCL 750.81d(1); People v. Morris; People v. Quinn; Investigatory stop; Terry v. Ohio; People v. Steele; People v. Simmons; Jury instructions; People v. Kowalski; Waiver; People v. Carter; Prosecutorial misconduct; People v. Dobek; People v. Unger; People v. Watson; People v. Smith; People v. Ackerman; People v. Buckey; Judicial misconduct; People v. McDonald; People v. Wells; Exculpatory evidence; MCR 6.201(B)(1) & (2); MCR 6.201(C)(2)(b); Judicial interrogation of witnesses; MRE 614(b); Trial court discretion to control the courtroom; MCR 2.512(B)(2); MCR 2.513(A) & (B); MCR 2.513(N)(3); People v. Traver; Ineffective assistance of counsel; People v. Solmonson; Strickland v. Washington; People v. Pickens; People v. Lockett; Trial strategy; People v. Heft; People v. Dixon; People v. Horn; Failure to raise a futile objection; People v. Ericksen; Insanity defense; MCL 768.21a(1) & (3); People v. Lacalamita; Presumption of competence; MCL 330.2020(1)

The court held that there was sufficient evidence to support defendant’s conviction, and that he was not denied a fair trial on the basis of prosecutorial or judicial misconduct. However, it found he was denied the effective assistance of counsel based on counsel’s failure to object to erroneous jury instructions. Thus, the court reversed his conviction and remanded for a new trial. He was convicted of resisting or obstructing a police officer and sentenced to 270 days. On appeal, the court rejected his argument that the evidence was insufficient to support his conviction, finding that a rational jury could find that he obstructed the officers “with the threatened use of physical interference or force when he approached” them and reached behind his back and by “knowingly failing to comply” with their commands, and that they were lawfully performing their police duties. It next found that defendant waived his claim as to the jury instructions by affirmatively approving them. The court then rejected his claim that he was denied a fair and impartial trial on the basis of prosecutorial misconduct, finding he “did not demonstrate that it was reasonably likely that the prosecutor’s presentation of the police vehicle video recording that was introduced at trial, closing argument, questioning of defendant, or questioning of” the detectives denied him a fair and impartial trial, or that he was “actually innocent or that the alleged errors of prosecutorial misconduct seriously affected the fairness of the trial.” It further rejected his contention that he was denied a fair and impartial trial on the basis of judicial misconduct, finding he failed to show that “it was reasonably likely that the trial court’s remark regarding [his] motion for discovery, questioning of [the officers], and alleged communication with the jury improperly influenced the jury by creating the appearance of advocacy or partiality against a party.” Finally, however, it found he was denied the effective assistance of counsel based on counsel’s failure to object to erroneous jury instructions. “Because it is reasonably probable that the jury would have reached a different result but for counsel’s failure to object to the erroneous instructions, defendant has established that he was prejudiced by defense counsel’s defective performance.”

Denial of request for a specific unanimity jury instruction; People v. Martin; People v. Cooks; Right to confrontation; People v. Meredith; Crawford v. Washington; People v. Garland; Hearsay; MRE 801(c); Former testimony of a declarant who is unavailable as a witness; MRE 804(b)(1) & (a)(2); People v. Adams; Refusal to testify despite an order to do so; People v. Garay; Similar motive to develop the testimony at the prior proceeding; People v. Farquharson; Witness demeanor; People v. Bean; Sentencing by a judge other than the trial judge; People v. Pierce; People v. VanAuker (After Remand); Scoring of OVs 8, 10, 12, & 14; MCL 777.38(1)(a) & (2)(a); People v. Barrera; Asportation; People v. Chelmicki; A place of greater danger; People v. Dillard; MCL 777.40(3)(a); People v. Cannon; People v. Earl; People v. Huston; MCL 777.42(1)(d) & (2)(a); People v. Light; MCL 777.44(1)(a); People v. Dickinson; People v. Jones; Whether defendant was entitled to resentencing; People v. Francisco; Reading of the victim’s preliminary exam testimony during deliberations; Plain error review; People v. Carines; Principle that a judge’s absence during a trial does not constitute reversible error unless defendant was prejudiced as a result; People v. Morehouse

The court held that defendant was not entitled to a specific unanimity jury instruction, and that the trial court did not abuse its discretion or violate his right to confrontation when it admitted the victim’s (A) preliminary exam testimony. Further, he was not entitled to relief under plain-error review as to the court reporter’s reading of A’s preliminary exam testimony for the jury during deliberations while the trial judge was not present to authorize it. The court also concluded that he was not entitled to resentencing on the basis that the visiting judge who presided over his trial was not the judge who sentenced him. But it held that he was entitled to resentencing due to errors in scoring OVs 8 and 12. Thus, the court affirmed his convictions of transporting a person for purposes of prostitution and accepting the earnings of a prostitute, but vacated his sentences and remanded for resentencing. It first concluded that “a specific unanimity instruction was not required because there were no distinct proofs of separate acts and there was not a risk of jury confusion.” Multiple acts were not involved here and “there was only one incident that could have supported the charge of accepting the earnings of a prostitute.” As to the admission of A’s preliminary exam testimony, the court held that the trial court did not abuse its discretion in finding her unavailable. While MRE 804(a) does not specifically address an “‘eleventh-hour decision’ not to testify[,]” the court found in Adams that this is “of the same character as other situations outlined in that rule of evidence.” Further, given that she “appeared on the first day of trial pursuant to a subpoena, her refusal to testify on the first day of trial and her failure return on the second day of trial constituted a refusal to testify despite an order of the court to do so.” While the court noted that “the better practice would have been for the trial court to make a record when” she was present on the first day, its decision to declare her “unavailable under MRE 804(a)(2) was within the range of reasonable and principled outcomes.” However, defendant was entitled to resentencing because the trial court erred in scoring 15 points for OV 8 and 5 points for OV 12, and subtracting 20 points from his OV score changed his recommended minimum range.

Prosecutorial misconduct; People v. Mullins; People v. Roscoe; People v. Bahoda; People v. Dobek; Whether a timely objection could have cured any prejudice; People v. Watson; Presumption jurors follow their instructions; People v. Breidenbach; People v. Long; Ineffective assistance of counsel; People v. Miller; People v. Vaughn; Motive; People v. Unger; Alleged discovery violation; MCR 6.201(A)(3); People v. Banks; People v. Rose; Assault with intent to commit murder (AWIM)

Rejecting defendant’s prosecutorial misconduct and ineffective assistance of counsel claims, and holding that the trial court did not abuse its discretion when it ruled that the fact the ballistics report was produced shortly before trial was not grounds for excluding it, the court affirmed his convictions. However, it remanded for the ministerial correction of his judgment of sentence to reflect that a conviction and sentence was for AWIM. He was also convicted of first-degree felony murder, armed robbery, receiving or concealing stolen property valued between $1,000 and $20,000, and felony-firearm. He asserted that the “prosecutor improperly commented during closing argument that (1) defendant is a ‘robber’ and that is ‘what he does’ and (2) defendant ‘has no heart, he has no soul.’” However, the court concluded that the robber comment “was not improper, but a fair comment on the evidence. Defendant was driving in a stolen vehicle with two other individuals, and he carried an AK-47 with him.” They robbed two people and tried to a rob a third a short time later. Even assuming that the comment about defendant having no heart or soul was improper, a “timely objection to the challenged remark could have cured any potential prejudice through a cautionary instruction.” Further, defense counsel “was not ineffective for failing to object to the argument that defendant was a robber and that was what he did.” The prosecutor’s comment “was reasonable in light of the evidence that defendant used an AK-47 to obtain property and the charge of armed robbery.” As to the heart or soul comment, the court noted that motive “is always a relevant consideration” and in the context of the prosecutor’s closing and rebuttal argument, it appeared “the prosecutor argued that defendant lacked a heart and soul to explain why the murder occurred despite the fact that [victim-F] surrendered his shoes and his belt without resistance and was running from the scene when” defendant shot him in the back. As to the ballistics report, the defense did not contest the prosecution’s assertion that it did not receive the complete analysis until four days before trial, and the court noted that the “defense theory of the case was that defendant was misidentified as the shooter as evidenced by the inconsistent descriptions of the perpetrator and the vehicle.”

Divorce; Personal injury damages caused by domestic violence; Future damages; MCL 600.6301; Factual findings after a bench trial; Chapdelaine v. Sochocki; MCR 2.517(A)(1) & (2); Triple E Produce Corp. v. Mastronardi Produce, Ltd.; People v. Johnson (On Rehearing); Admission of a certified copy of a nolo contendere plea; Nashal v. Fremont Ins. Co.; Lichon v. American Universal Ins. Co.; MRE 410; Harmless error; MRE 103(a); Sparling Plastics Indus., Inc. v. Sparling; Attorney fees; Cassidy v. Cassidy; Reed v. Reed; MCR 3.206(D); MCL 552.13(1); Souden v. Souden; Reasonableness; Smith v. Khouri; Pirgu v. United Servs. Auto Ass’n

In this divorce case, the court affirmed the award of future damages for personal injury, vacated the attorney fee award, and remanded. Plaintiff-Julia filed for divorce from defendant-Craig and sought financial recovery for personal injury damages caused by his domestic violence. He defended by accusing her of physical abuse. He contended that the trial court erred by admitting a certified copy of his nolo contendere plea into evidence. The evidence “would only be admissible to support Julia’s defense to Craig’s counterclaim of assault and battery perpetrated by her.” For purposes of this appeal, the court presumed “that the trial court abused its discretion in preventing Craig from voluntarily dismissing his assault and battery counterclaim. Absent this counterclaim, the plea would have been inadmissible.” Thus, the trial court abused its discretion in admitting evidence of Craig’s nolo contendere plea. But he was not entitled to relief as its admission was ultimately harmless. “Julia testified at length about the assault perpetrated by Craig. She presented photographs of her injuries, physician testimony, and medical records that corroborated her testimony and contradicted Craig’s version of events.” The trial court credited Julia’s evidence over Craig’s and the court “may not interfere with that judgment.” The fact he pled “no contest to felonious assault and domestic violence was a mere drop in the evidentiary bucket.” Craig also challenged “the sufficiency of the trial court’s factual findings supporting its award of $250,000 in future damages, as well as certain elements of that award.” However, the court concluded that the trial “court’s factual findings sufficed to support its award and to enable our review.” Contrary to his arguments, the trial “court clearly explained that Julia’s ‘fright, shock, and humiliation’ are ongoing and that she continues to suffer damages from the effects of at least tinnitus and her brain injury.” But the trial court erred when it did not make any findings as to the reasonableness of the attorney fee award, “let alone consider any Pirgu factor on the record[,]” and thus, the court had to vacate that award and remand for the required analysis.

Divorce; Jurisdiction after the entry of the final order that disposed of all claims & closed the case; MCL 600.605; Const. 1963, art. 6, § 1; MCL 600.1021(1)(a); Subject-matter jurisdiction; Usitalo v. Landon; Altman v. Nelson; Effect of an order of dismissal; Baskin v. Dingeman; Souden v. Souden; Yedinak v. Yedinak; Attorney fees; MCL 552.13; MCR 3.206(D); Reed v. Reed; Detroit Pub. Schs. v. Connecticut; Statutory interpretation; Hill v. LF Transp., Inc.; MCL 552.13(1); Ryan v. Ryan; MCL 552.6; DePew v. DePew; Johnson v. White; Distinguishing Stackhouse v. Stackhouse; Dillon v. Shiawassee Circuit Judge; Binkow v. Binkow

Holding that “the trial court lacked jurisdiction after the entry of the final order that disposed of all claims and closed the” case, the court reversed the trial court’s order that held it still had jurisdiction to decide the petitioner-attorney’s petition for attorney fees and ordered that a hearing be held to determine the amount, if any, she was entitled to recover. The trial court determined “that it had jurisdiction, after dismissal of the parties’ divorce case pursuant to a stipulated order for dismissal that resolved the last pending claim and closed the case, to decide petitioner’s petition for costs and attorney fees from defendant for petitioner’s representation of plaintiff.” To the extent that it “relied on MCL 552.13(1) and MCR 3.206(D)” in doing so, the court held that it erred as a matter of law. MCL 552.13 applied while the divorce action was pending, “but once the trial court entered its final order and closed the case, that statutory provision no longer applied.” MCR 3.206(D) did not apply because petitioner was not a party to the divorce case. The trial court also incorrectly read DePew “to extend the trial court’s jurisdiction to render decisions after final dismissal and closure of a divorce case.” DePew did not go that far. Had the parties here stipulated to the trial court’s retention of jurisdiction as to the attorney fee dispute, as in DePew, it would have retained jurisdiction. But the parties here did not do so, and thus, DePew was inapposite. Further, the court held that Stackhouse was “inapposite because the trial court in that case had not entered a final order closing the case after the plaintiff’s death. Although the trial court could not enter a judgment of divorce following the plaintiff’s death, the case remained pending during which ancillary issues such as the attorney fees dispute could be determined by the trial court under MCL 552.13.” Unlike Stackhouse, the trial court here entered a final order dismissing the action and closing the case. This case was akin to Dillon and Binkow. “The trial court’s order constituted a final order that disposed of all claims and closed the case. Once closed, the trial court lacked jurisdiction to enter further orders. The final order divested” it of jurisdiction over the divorce case and “of jurisdiction to decide ancillary matters such as the attorney fees petition.” Because its jurisdiction was entirely governed by statute, and its “authority to order a party to pay the other party’s attorney fees is governed by MCL 552.13(1), which specifically limits doing so during the divorce action’s pendency, the trial court erred by holding that it had jurisdiction to consider and decide the petition.”

Termination under §§ 19b(3)(g) & (j); Consideration of a respondent’s marijuana use in terminating parental rights; The Michigan Regulation & Taxation of Marihuana Act (MRTMA); MCL 333.27955(1) & (3); The Michigan Medical Marihuana Act (MMMA); MCL 333.26424(d) & (e); Distinguishing In re LaFrance & In re Richardson; Principle that the abuse of alcohol can be grounds for termination; In re Powers; In re Conley; Assumption of jurisdiction; In re Ferranti; MCL 712A.19(b)(1) & (2); In re MU

Concluding that LaFrance and Richardson were distinguishable, the court held that respondent-mother’s drug use was directly related to the child’s abuse and neglect and thus, that the trial court did not clearly err in considering her continued marijuana use. She also failed to show that it clearly erred in assuming jurisdiction. She argued that, in light of MCL 333.27955 (part of the MRTMA), the trial court erred in considering her marijuana use. Under LaFrance (which considered the MMMA), drug use by itself, absent any connection to abuse or neglect, “cannot justify termination solely through operation of the doctrine of anticipatory neglect.” But there was sufficient evidence here showing that respondent’s marijuana use was connected to abuse and neglect. Distinguishing LaFrance and Richardson, the court noted that she “did not produce a medical marijuana card or any documentation by medical professionals to establish that she had a ‘debilitating medical condition’ that was alleviated only by the use of marijuana.” The case arose due to “domestic violence in the household that was impacting the mental health of the child, who was traumatized by the home situation and frightened of respondent’s partner, and because of respondent’s use of substances, including” meth. After 18 months of services and hearings, the evidence showed she “had used amphetamines as recently as two months before the termination hearing and at least three times in the five months” before that hearing. The recreational use of marijuana did not become legal until over a year after the case first came before the trial court. “More importantly, it was clear from respondent’s psychological evaluation that she had been using marijuana since early in her teens,” before the development of the stomach problems for which she claimed she was using it. Despite losing visitation and the threat of termination, she continued using marijuana and offered no evidence except her testimony “that she had a serious medical condition that could not be relieved with any prescribed medication and could only be controlled by marijuana use.” Further, under MCL 333.27955(3) and case law on termination due to alcohol abuse, “the fact that marijuana use was permitted by law did not preclude the fact that respondent’s abuse of it could be considered as a factor in” terminating her parental rights. Affirmed.

Termination under § 19b(3)(c)(i); Child’s best interests; MCL 712A.19b(5); In re Moss Minors; In re Olive/Metts Minors; In re White; Release of rights under the Adoption Code (MCL 710.21 et seq.); Advising a parent as to their rights under MCL 710.29(7), MCL 700.2103(b), & MCR 3.804(C)(1); Plain error review; In re Beers; Whether a parent was deprived of the opportunity to file a motion under MCL 710.64(1) due to incarceration; Abandoned claims; Houghton ex rel Johnson v. Keller

The court held that while the trial court committed a clear and obvious error in failing to advise respondent-mother of her continuing child support obligation, this did not affect the outcome or her substantial rights. Further, her incarceration did not deprive her of the opportunity to file a motion for rehearing or to set aside the termination order based on her release of parental rights under the Adoption Code. The court also rejected respondent-father’s claim that termination of his parental rights was not in the child’s (S) best interests. Thus, it affirmed both termination orders. The trial court explicitly informed the mother that “she was relinquishing custody and control over [S] when it stated that [the] mother would no longer have the right to be consulted or have a say about [S’s] education, discipline, religious practices, medical treatment, whereabouts, and the legally enforceable right to visit” S. Further, it expressly informed her “she was relinquishing the right to inherit from” S. Given that it fully explained to her “that she was permanently relinquishing her parental rights to” S as well as the right to inherit from S, it complied with both MCL 710.29(7) and MCL 700.2103(b). But under the plain language of MCR 3.804(C)(1), it was also required to advise her “that her child support obligation continued after she released her parental rights to [S] until” an adoption order was entered. Thus, it was a clear and obvious error to fail to do so. However, she did not assert on appeal that she would have declined to release her parental rights “if the trial court advised her of her continuing child support obligation.” She did not show “that a clear and obvious error affected her substantial rights . . . .” She also failed to “explain how her incarceration prevented her from filing a motion under MCL 710.64(1).” The court noted that her attorney could have done so on her behalf. It also held that the trial court did not clearly err in finding that termination of the father’s parental rights was in S’s best interests. The evidence showed that they did not share a strong bond, that he lacked the ability to adequately parent S, and that the foster home had several advantages over the father’s home. He also had not complied with his service plan. The court concluded that the evidence established that termination “supported [S’s] need for permanency, stability, and finality.”