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Providing summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit. Over 60,000 cases summarized to date.
Full Text Opinion
Sentencing; Failure to assess 10 points for OV 17; MCL 777.47(1)(a) & (b); Failure to assess 15 points to OV 5; MCL 777.35; “Serious psychological injury”; “Serious”; “Homicide”; MCL 777.1(c); Reckless driving causing death under MCL 257.626(4); Judgment of sentence (JOS)
Holding that the trial court erred by failing to assess 10 points for OV 17 and by failing to assess 15 points for OV 5, the court vacated defendant-Davis’s JOS and remanded. He pled nolo contendere to failing to stop at the scene of an accident resulting in death, reckless driving causing death, and lying to a peace officer. After entering into a Cobbs agreement with him, the trial court imposed a sentence of one year in the county jail and five years’ probation, which was a downward departure. The prosecution claimed that the trial court erred by assessing 5 points for OV 17, that it “should have assessed 10 points for OV 17 because Davis ‘showed a wanton or reckless disregard for the life or property of another person’ during the commission of the sentencing offense.” By pleading nolo contendere, he admitted “he operated a vehicle in willful or wanton disregard for the safety of persons or property. As noted by the prosecutor, ‘[t]o show that a defendant acted in wilful and wanton disregard of safety, something more than ordinary negligence must be proved.’” By ignoring his admission, the trial court erred. While perhaps it believed adding 10 points to his “OV score did not accurately reflect the seriousness of Davis’s conduct, the proper procedure would be to consider this as grounds for departure from the minimum sentencing range—not to assess points for OV 17 without regard to” his admission. The prosecution also argued that the trial court erred by assessing zero points for OV 5, which “is scored when a homicide or homicide-related crime causes psychological injury to a member of a victim’s family.” The trial court erred by ruling that OV 5 was inapplicable here. “Although the statements made before the trial court at the sentencing hearing were more than sufficient to support assessing 15 points to OV 5, several of the victim’s family members also wrote letters to the trial court before sentencing. The letters outline how Davis’s crimes and the death of the victim caused them grief and despair.” The court held that the “statements provide a reasonable basis to conclude that the victim’s family members suffered serious psychological injury.”
Sentencing; Scoring of OV 11; “Arise”; People v Mutchie; “Sexual penetration”; MCL 750.520a(r); People v Lockett; People v Payne; Whether resentencing was required
Holding that the evidence supported a 25-point score for OV 11 rather than the 50 points assessed by the trial court, the court vacated defendant’s sentences for his CSC I and accosting a child for immoral purposes convictions, and remanded for resentencing because reducing this score changed his minimum guidelines range. The court concluded that contrary to defendant’s argument, “the second act of penile-vaginal penetration did arise out of the sentencing offense.” It noted that the “victim described a single, continuous event of sexual assault. The assault began with unconsented sexual touching and moved into sexual penetration, first on the couch and then on a chair.” While the trial court determined “that the two acts of penile-vaginal penetration occurred 10 minutes apart, this finding was not supported by the evidence. The victim testified that the first penetration lasted approximately 10 minutes. [Defendant] then moved the victim to a chair and again penetrated her vagina with his penis. There was no separation in time between the two. This act was properly counted as one sexual penetration in addition to the sentencing offense.” But the court found that her description of events did “not support the trial court’s finding of digital penetration.” While sexual penetration includes even a slight penetration of the labia majora, penetration “is more than ‘mere contact.’” The victim’s description of defendant’s hand rubbing on her vagina did not include a description of “an intrusion, however slight.” Thus, it did not support finding a digital penetration. Subtracting 25 points in the scoring of OV 11 reduced defendant’s OV score to 60 points, his OV level to IV, and his minimum “guidelines range from 135 to 225 months to 126 to 210 months.”
Consecutive sentencing for first-degree home invasion & CSC I convictions; MCL 750.110a(8); MCL 750.520b(3); People v Norfleet
After remand to the trial court, the court held that it did not abuse its discretion in imposing consecutive sentences on defendant for his first-degree home invasion and CSC I convictions. It had remanded for the trial court to articulate on the record specific findings for its decision to impose consecutive sentences. After fully articulating its reasoning, the trial court determined that the original sentences it imposed should stand. Defendant was sentenced as a fourth-offense habitual offender to 35 years to 35 years and 1 day for his CSC I conviction and a consecutive term of 20 to 30 years for his first-degree home invasion conviction. Reviewing the trial court’s statements when imposing the consecutive sentences on remand, the court found its explanation “was incredibly thorough, and when considered in conjunction with the Legislature’s clear authorization of consecutive sentencing for” these crimes, it was sufficient to establish that imposing consecutive sentences here “fell within the range of reasonable and principled outcomes. The trial court noted that defendant stalked the victim, following her from a restaurant to her hotel. Defendant then spent a significant amount of time walking around the hotel talking on a cell phone to deceive hotel staff, lying in wait until breaking into the victim’s hotel room while she slept. The trial court went on to note defendant’s extensive criminal history, his status as a fourth-offense habitual offender, and the extreme emotional and psychological toll this attack has taken on the victim. Thus,” the court concluded based on the record that “the trial court did not abuse its discretion by fully considering all of the circumstances in this case, and determining that consecutive sentences were appropriate.”
Lifetime electronic monitoring under MCL 750.520b(2)(d); Whether People v Comer constitutes a retroactive change in the law; Ban on successive motions for relief from judgment; MCR 6.502(G)(2); Judgment of sentence (JOS); Motion to correct an invalid sentence; MCR 6.429(A); Final decision; People v Maxson; People v Gomez; Retroactivity; People v Barnes; People v Sexton; Jurisdiction; People v Washington (On Remand)
The court held that the trial court did not err by amending the JOS on its own initiative, after entry, to add lifetime electronic monitoring. Defendant was convicted of CSC I and sentenced as a fourth-offense habitual offender to 12 to 30 years. After he was sentenced, the trial court sua sponte amended the JOS to add the statutory requirement of lifetime electronic monitoring. Defendant appealed and the Supreme Court remanded. On remand, the court held that “(1) the Michigan Supreme Court’s decision in Comer did not constitute a retroactive change in the law such that an exception to the ban on successive motions for relief from judgment applies under MCR 6.502(G)(2), (2) assuming that Comer applies retroactively, the trial court had jurisdiction to amend the … [JOS] on its own initiative, after entry, to add lifetime electronic monitoring, and (3) assuming that Comer did not constitute a retroactive change in the law, but the trial court lacked jurisdiction to amend the [JOS], defendant would be entitled to relief because the amended [JOS] was void for lack of jurisdiction, and jurisdictional defects may be raised at any time.” The court concluded that, “despite the trial court’s lack of authority to amend the [JOS] on its own initiative, [it] had jurisdiction, under Comer,” to amend the JOS. Affirmed.
A “meaningful opportunity” to show juror bias; Remmer v. United States; United States v. Herndon; Reassignment to a different judge; Rorrer v. City of Stow
The court held that the district court deprived defendants-Laniers of a “meaningful opportunity” to show juror bias and thus, they were entitled to a new trial before another judge. They were tried for conspiracy, wire fraud, and defrauding the government. During the trial, the district court learned that a juror had called a prosecutor (N) not involved with the case. It denied the Laniers’ requests to interview the juror and for a mistrial. They appealed, and the court previously vacated their convictions and remanded for a Remmer hearing. Before that hearing, the juror again contacted N, who reported it and suggested that the juror may have conducted some online investigation. The Laniers did not learn of these texts until the Remmer hearing. The district court initially refused to compel her to produce them for the Laniers to examine, and by the time the phone was eventually produced, the evidence had been removed. The district court denied the Laniers a new trial. The court first noted that “a district court abuses its discretion by denying a defendant a ‘meaningful opportunity’ to demonstrate jury bias.” It then held that “[t]he district judge’s handling of the Remmer hearing and his ‘minimally timely, minimally adequate, investigation’ into Juror 11’s illicit communications and research undershot the district court’s constitutional obligations.” Just days before the Remmer hearing, the district court was made aware that the juror was seeking N’s “substantive input about the case—the very act that she supposedly committed during deliberations and the Remmer hearing’s instigating event.” Yet, the judge did not inform the Laniers of this before the hearing. The court concluded that it was “unacceptable” that the district court failed to instruct N to preserve the messages or to order the juror to save the texts and her web browsing history, and that its conduct “undermined the Laniers’ ability to question” the juror at the Remmer hearing. “The district court’s three-week resistance of the Laniers’ reasonable request to have Juror 11 produce her phone and computer allowed the juror an opening to wipe her browsing data.” The juror eventually admitted that she had discussed the case with others and done research online. The court held that “when a district court conducts a constitutionally inadequate Remmer hearing that fails to guarantee a defendant a meaningful opportunity to demonstrate jury bias, as occurred here, a new trial is in order.” Reversed and remanded.
Parenting time; Desertion ground for termination of parental rights; MCL 712A.19b(3)(a)(ii); The Child Custody Act (CCA) (MCL 722.21 et seq); MCL 722.27a(3); Presumption it is in a child’s best interests to have a strong relationship with both parents; MCL 722.27a(1)
The court held that the trial court did not commit a clear legal error in concluding that MCL 712A.19b(3)(a)(ii) had no legal bearing in this case. Also, as to MCL 722.27a(3), it was “not convinced that the trial court erred in its findings of fact or application of the applicable law for its decision.” Finally, the “trial court’s findings were not against the great weight of the evidence, and it did not palpably abuse its discretion by granting parenting time to” plaintiff-father. Thus, it affirmed. Defendant-mother’s parents filed a petition to terminate plaintiff’s parental rights and adopt the child (R) on the ground that plaintiff had been absent from R’s life for over three years. A month before the petition was scheduled for adjudication, plaintiff sought legal and physical custody of R and parenting time. Defendant argued that “the trial court made findings against the great weight of the evidence and palpably abused its discretion in granting plaintiff parenting time because 1) the Legislature has specified in MCL 712A.19b(3)(a)(ii) that a parent’s desertion of a child for just 91 days causes harm sufficient to justify terminating the parent’s parental rights, and plaintiff deserted [R] for more than four years, and 2) the trial court should have relied on the opinions of defendant and her parents that being reintroduced to plaintiff would mentally and emotionally harm” R. But defendant did not provide “any authority that satisfaction of MCL 712A.19b(3)(a)(ii) related to the termination of parental rights necessarily provides clear and convincing evidence in a parenting-time dispute that a child will be harmed by reintroduction to the parent.” Thus, the trial court properly held that “MCL 712A.19b(3)(a)(ii) has no bearing on this custody and parenting-time case, which is governed by the” CCA. It did “not make findings against the great weight of the evidence or palpably abuse its discretion when it determined that neither plaintiff’s abandonment of [R], in itself, nor defendant’s and her parents’ unsupported opinions sufficed to establish by clear and convincing evidence that [R] having parenting time with plaintiff as required under MCL 722.27a(3), would endanger [R’s] physical, mental, or emotional health.”
Case evaluation sanctions; MCR 2.403(O); Whether the rejecting party received a more favorable verdict than the case evaluation award; Jurisdiction; Whether the claim of appeal was timely filed; MCR 7.204(A)(1)
Concluding that it had jurisdiction over defendants’ appeal, and that plaintiff-estate’s decedent did not achieve a verdict more favorable than the case evaluation he rejected, the court vacated the order denying defendants case evaluation sanctions against plaintiff and remanded. The decedent contracted with defendants to buy a newly constructed home. He asserted fraud and other claims. Defendants filed a countercomplaint against him, his daughter (third-party defendant-Reyes) and her boyfriend (third-party defendant-Geller), who were involved in the construction process on his behalf. Case evaluation resulted in a $10,000 award for the decedent against defendants, who were awarded $2,500 on their countercomplaint. They accepted, but the decedent rejected by failing to respond. After determining that defendants’ claim of appeal was timely filed, the court noted that “the evaluation addressing the original complaint only involved the decedent and defendants, and the award pertaining to these particular parties was $10,000.” The decedent’s complaint was later dismissed in its entirety by an order granting defendants summary disposition after the trial court found he “could not sufficiently establish the fraud claims. Considering this order, the decedent did not achieve a more favorable verdict than the rejected” award. Later, he, Reyes, and Geller reached a settlement agreement (SA) with defendants as to dismissing the countercomplaint and disparagement. Defendants later moved to enforce the oral SA, resulting in the trial court’s entering an order that confirmed the SA “as outlined at the motion hearing and disposed of the countercomplaint. The trial court erred in concluding that it could not render a determination regarding the case evaluation sanctions because of the confidential [SA]. This [SA] disposing of the countercomplaint had no bearing on the summary disposition decision resolving the original complaint, and it did not constitute a verdict for purposes of addressing MCR 2.403(O)(2).” Defendants were entitled to case evaluation sanctions “because the summary disposition order dismissing the case did not render a more favorable verdict to the decedent than the rejected” $10,000 award.
Termination under §§ 19b(3)(c)(i), (c)(ii), (g), & (j); The Michigan Indian Family Preservation Act (MIFPA) (MCL 712B.1 et seq); “Active efforts”; Serious emotional or physical damage
The court concluded that the trial court did not clearly err by holding that “active efforts were made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that” they were unsuccessful. Also, under the circumstances, the tribal expert (N) and the trial court could reasonably infer returning the children to respondent-mother “would likely result in serious emotional or physical damage.” Thus, the court affirmed the order terminating respondent’s parental rights. As to active efforts under MIFPA, the DHHS identified several barriers to reunification early on – “mental health, unhealthy romantic relationships, housing, and employment.” She was referred to counseling for help with emotional regulation and anger management. Respondent did not meaningfully engage in counseling until after the DHHS “sought termination of her parental rights, more than a year after the case began, and she was only minimally compliant with the medications that were prescribed by the counselor’s behavioral health practice.” The record contained examples of the domestic altercations between respondent and G (the father of one of her children). They “were encouraged to go to couple’s counseling, but respondent ‘had issues with what [petitioner was] trying to have them work on as a couple . . . .’” The trial court shared the DHHS’s concern that she would repeat her pattern of returning to G “when he is released from jail, despite the negative effect doing so would have on her life and the lives of her children.” The condition of her home vastly improved during the case. The DHHS also offered her “services that addressed life skills related to housing and budgeting. Most significantly, respondent received one-on-one assistance from a public healthcare nurse and another service provider from Adoption Option in connection with the barriers she faced, including issues ranging from physical and mental health to housing to employment.” Also, the DHHS was responsible for referring her to a place “where she found full-time employment at a sufficient wage to meet her needs.” While that employment did not last, she was at least employed part-time at the time of termination. She “was not left to her own devices and expected to sink or swim on her terms.” N monitored the case progress throughout and was confident that the DHHS “made active efforts that proved unsuccessful.”
Trip & fall; Open & obvious danger; Lugo v Ameritech Corp, Inc; Novotney v Burger King Corp; Hoffner v Lanctoe; Duty owed to an invitee; Bertrand v Alan Ford, Inc
Holding that the danger at issue was discoverable on casual inspection and thus, open and obvious as a matter of law, the court reversed the trial court’s contrary decision and remanded for entry of judgment in favor of defendant-tire shop. Plaintiff sued defendant for injuries he sustained when he tripped on a packaging strap in defendant’s garage. The trial court found a question of fact existed as to the strap’s visibility. On appeal, the court noted that plaintiff rested his opposition to summary disposition on the fact that he did not see the strap before he stepped on it. “But the video reveals the strap on the floor, and it is not hidden or obscured by any other garage debris. Because the packaging strap was visible on casual inspection, Lugo instructs that [defendant] had no duty to warn [plaintiff] of its presence on the floor.”
Due process; Failure to provide a respondent with a copy of the petition requesting termination before the preliminary hearing; MCR 3.965(B)(1) & (4); MCR 3.920(D)(2)(b)
Rejecting respondent-father’s claim that his due process rights were violated by the failure to give him a copy of the petition requesting termination before the preliminary hearing, the court affirmed the order authorizing the petition. He did not cite “any legal authority establishing that the failure to serve a respondent in a child protective proceeding with the petition before a preliminary hearing is conducted amounts to a due process violation.” In addition, under MCR 3.965(B)(1), “a respondent’s appearance is not even mandatory for a preliminary hearing to be conducted.” It was also clear he had notice since he attended by phone. MCR 3.965(B)(4) states: “If the respondent is present, the court must assure that the respondent has a copy of the petition. The court must read the allegations in the petition in open court, unless waived.” The trial court found “that respondent did not have a copy of the petition, although an attempt was made to” send him one via email. The court noted that “MCR 3.965(B)(4) does not mandate adjournment if the respondent does not have a copy of the petition.” He was represented by counsel at the hearing, and neither he nor his counsel requested an adjournment. Counsel “had a copy of the petition, and it was clear that respondent had the opportunity to speak with his attorney before the” hearing was held. And while the trial court offered to read the petition’s allegations in open court, his counsel waived this. At no time during the “hearing did respondent state that he was unaware of the allegations raised in the petition.” The court concluded that he received the hearing notice “to which he was entitled. The court rule does not further require the service of the petition before a preliminary hearing may be conducted. And the court advised respondent that the petition would immediately be sent by both regular and certified mail, as well as personally served.” Further, even if there was error, his substantial rights were not affected. His counsel waived probable cause, which the court found clearly existed. In addition, “the children were not permanently removed from his care after the” hearing; they were only temporarily removed “to ensure their safety until further proceedings could be conducted.”
Termination under §§ 19b(3)(a)(ii) & (c)(i); Reasonable reunification efforts; In re Smith; Service plan; In re Hicks/Brown; Inclusion in the parent-agency agreement of regular & frequent parenting time unless it would be harmful to the child as determined by the court; MCL 712A.18f(3)(e); MCL 712A13a(13); Best interests of the child in determining parenting time; In re Laster; Suspension of visitation when a termination petition is filed; MCR 3.977(D); MCL 712A.19b(4)
The court held that “despite possible missteps in these lengthy proceedings, the DHHS established grounds for termination and [it] was in in the child’s best interests.” Respondent-mother’s parental rights were terminated based on “desertion” and “failure to rectify the conditions that led to adjudication.” On appeal, the court rejected her argument that the DHHS failed to make reasonable reunification efforts and thus, could not terminate her rights. She claimed the DHHS should have followed through with interstate compacts with two other states, should have provided financial support to transport the child to her, and should have facilitated counseling for them during video visits. The court noted that it “is insufficient to include parenting time in the case service plan but make no effort to facilitate parenting time when the respondent parent desires it and attempts it.” It concluded that the “DHHS should have acted earlier and more directly” in this case. But it noted that respondent “did not advocate for a specific remedy until a permanency planning hearing conducted only after the termination hearing. By that time, the [trial] court could have suspended [her] parenting time without any cause. And objecting at the eleventh hour to the services provided under the case service plan is inadequate to preserve a challenge. By the time respondent specified her objection, there was nothing to be done. Any error in this regard was harmless in any event.” The court found that even if she and the child had “developed a bond through video visits, termination would still have been warranted.” Affirmed.
Removal of a child under MCL 712A.2(b); In re Rood; Preliminary hearing; MCL 712A.13a; MCR 3.965; Placement of a child into foster care; MCL 712A.13a(9); MCR 3.965(C)(2); Adjournment; MCR 3.965(B)(11); MCR 3.965(C)(1)
The court held that the trial court did not err by removing respondent-mother’s two children (A and E) from her custody. They were removed based on her failure to protect A from A’s father. The court rejected her argument that the trial court violated her right to due process by declining to adjourn the removal hearing, noting that while it sympathized with counsel’s request for more time to prepare, even if the trial court abused its discretion by denying an adjournment, its decision was harmless under the circumstances. “Respondent had voluntarily relinquished physical and legal custody of the children two years before the removal hearing and had not seen [E] within that time. Maintaining the children in the status quo was not an abuse of discretion. Moreover, the preliminary hearing was conducted one week later, and the children’s placements were maintained.” Given that she had more “time to prepare to seek reconsideration of the issue of the children’s placement,” the court found no “prejudice flowing from the [trial] court’s decision to go forward with the removal hearing.” It also rejected her claim that the trial court erred by finding that the DHHS’s evidence met the legal requirements for removal, noting it did not err by finding that custody with “respondent presented ‘a substantial risk of harm’ to their ‘life, physical health, or mental wellbeing.’” She had not seen “one of the children in two years, and any visits with the other child were conducted in violation of a court order prohibiting parenting time.” The trial court “appropriately found a risk of harm under these circumstances. The same reasoning supported that failing to remove” them would be contrary to their welfare. The trial court did not err by finding reasonable efforts were made to prevent their removal because the DHHS provided her with “numerous services during the period” before their removal. It also did not err by “finding that ‘[n]o provision of service or other arrangement except removal of the child[ren was] reasonably available to adequately safeguard the child[ren];’ ordering removal ensured that the status quo would be maintained until further evidence could be presented.” Because removal ensured that E “would remain with his father and” that A “would be placed with his grandparents,” the trial court did not err by finding “removal was an adequate safeguard.” Affirmed.