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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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.
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Divorce; Child custody; Proper cause or a change of circumstances; MCL 722.27(1)(c); Vodvarka v Grasmeyer; Best-interest factors; MCL 722.23(g), (h), & (j); Failure to conduct an evidentiary hearing; Sanctions; MCR 1.109(E)(5)(c), (E)(6), & (E)(7); Attorney fees; Smith v Khouri; Reasonableness
The court held that the trial court did not err by denying defendant-mother’s motion seeking joint legal custody of the parties’ children, or by declining to hold an evidentiary hearing. But it found that while the trial court did not abuse its discretion by ordering her to pay plaintiff-father attorney fees, remand was appropriate for the trial court to make necessary findings of fact as to the amount. Plaintiff petitioned for divorce and for sole custody of the children, alleging defendant was unable to effectively parent them due to her alcoholism. Defendant, who entered inpatient treatment, failed to file an answer and a default judgment was entered, awarding plaintiff sole legal and physical custody of the children. Defendant’s parenting time was suspended. After her release from inpatient treatment, she struggled with maintaining her sobriety, but began to show consistent improvement and was ultimately permitted to have unsupervised parenting time. She eventually moved for a change of custody, but the motion was denied because she failed to establish proper cause or a change of circumstances. She later moved for joint legal custody. The trial court denied her motion and granted plaintiff $1,250 in attorney fees. On appeal, the court rejected her argument that the trial court improperly denied her motion for joint legal custody. “Defendant failed to establish proper cause or a change of circumstances, and any error on the part of the trial court was harmless.” And despite her sobriety, the record supported “that her relationship with the children remains strained. Given the parties’ contentious relationship, revisiting the custody order at this time would likely have a significant negative effect on the children’s well-being.” The court also rejected her claim that the trial court abused its discretion by declining to hold an evidentiary hearing on the issue of whether proper cause or a change of circumstances existed. It agreed “with the trial court that defendant’s disagreement with plaintiff’s decisions alone does not support proper cause or change of circumstances.” Finally, although the court disagreed with plaintiff’s contention that the trial court abused its discretion by ordering her to pay plaintiff attorney fees, it found it was proper to remand for the trial court to make the necessary findings of fact under the Khouri framework. “Because the trial court failed to make findings of fact on the issue of attorney fees,” the court vacated the part of the order granting attorney fees and remanded to allow the trial court to make the necessary factual findings. Affirmed in part, vacated in part, and remanded.
Consecutive sentencing; People v Norfleet; People v Norfleet (After Remand); People v Baskerville; MCL 750.110a(8) (authorizing consecutive sentences for first-degree home invasion)
Holding that the trial court did not abuse its discretion in imposing consecutive sentences for defendant’s first-degree home invasion and armed robbery, the court affirmed his sentences. He was originally sentenced as a third-offense habitual offender to consecutive terms of 40 to 60 years for armed robbery and 20 to 40 years for first-degree home invasion. In his first appeal, the court affirmed his “convictions but remanded for resentencing, in part because the trial court failed to articulate a reason for” his consecutive sentences. The trial court on remand resentenced him within the applicable guidelines range to 427 months to 70 years for armed robbery and 17.5 to 40 years for first-degree home invasion. In a second appeal, the court “remanded for resentencing to correct the scoring of several” OVs. The trial court again resentenced him within the applicable guidelines range to consecutive terms of 85 months to 400 months for armed robbery and to 85 months to 300 months for first-degree home invasion. In this third appeal, he challenged the imposition of consecutive sentences. The court concluded the “trial court properly exercised its discretion in imposing consecutive sentences under MCL 750.110a(8), and as required by Norfleet, . . . did not speak in general terms, provided particularized reasons for imposing a consecutive sentence, and referenced defendant and the specific crimes of which he was convicted. Further, it was reasonable for the trial court to conclude that consecutive sentences were justified because defendant took advantage of the elderly victim—who was kind to him and gave him opportunities to work—by invading his home and committing armed robbery.” As to defendant’s argument the trial court was not allowed “to consider facts already captured by the” guidelines, the court noted it held in Norfleet (After Remand) that trial courts “may rely on conduct accounted for in the” guidelines in articulating why it imposed a consecutive sentence. Further, the trial court stated “it was not considering the fact that the victim was a ‘vulnerable victim,’ which was considered by the guidelines, but instead was considering the unique relationship of trust between the victim and defendant that defendant exploited.”
Motion to preclude defendant’s use of a “Good Samaritan” defense at trial; People v Morrison; Statutes criminalizing possession (MCL 333.7403) & use (MCL 333.7404) of controlled substances; Whether the issue was ripe for determination; Principle that evidence of an affirmative defense need not be presented at a preliminary exam; People v Waltonen; Delivery charges; United States v Swiderski (2d Cir); People v Schultz
Holding that the issue of whether defendant should be able to present a “Good Samaritan” defense at trial was not ripe for determination, the court reversed the trial court’s order granting the prosecution’s motion to preclude him from doing so, and remanded. The case arose after an individual (C) died of a drug overdose. Defendant was charged with delivery of fentanyl causing death of another person, possession with intent to deliver meth, delivery of less than 50 grams of fentanyl, and delivery of meth causing death of another person. The prosecution’s motion was primarily based on preliminary exam testimony. But evidence of an affirmative defense does not have to be offered at a preliminary exam; the court held in Waltonen that “affirmative defenses in criminal cases should typically be presented and considered at trial and that a preliminary examination is not a trial.” Further, the prosecution did not cite any case law requiring a “defendant to present evidence in support of an affirmative defense before trial. Indeed, in the cases relied on by the prosecution, it was the defendant moving to dismiss the charges based on an affirmative defense.” The court found that those cases could not “be read as requiring the defendant to present the necessary proofs before trial.” In addition, it disagreed with the prosecution that the preliminary exam proofs established “no reasonable jury could conclude that defendant is entitled to the Good Samaritan defense.” The prosecution relied in part on a witness’s testimony that C “was unresponsive for approximately 30 minutes before 911 was called. However, it is the jury’s role to determine witness credibility, . . . and what constitutes ‘good faith.’” The court concluded defendant had not been given “a meaningful opportunity to present evidence in support of his affirmative defense, which typically occurs at trial.” Thus, it determined “that it was premature for the trial court to decide whether [he] is entitled to an instruction on the Good Samaritan defense.” The defense only applies to charges for possession, not delivery. The court found that “the competing theories as to whether ‘delivery’ occurred presents factual questions.” And as with “the Good Samaritan defense, whether defendant is entitled to an instruction on possession is for the trial court to determine based on whether evidence is introduced at trial that would support” it.
Sentencing; 28 USC § 2255 motion; Ineffective assistance of counsel; Claim based on incorrect advice given while a defendant was considering a plea deal but recognized & rectified by counsel before sentencing; Strickland v Washington; Failure to try to negotiate a better plea deal or expedite the plea-through-sentencing process; Whether the district court erred in ruling that sentences imposed under the aggravated identity theft statute (18 USC § 1028A) run consecutively to all other federal & state sentences & are not subject to USSG § 5G1.3 adjustments; Michigan Department of Corrections (MDOC)
[This appeal was from the ED-MI.] The court held that even if petitioner-Gilbert could have shown his trial counsel’s performance was deficient under Strickland, his claim failed because he was unable to establish prejudice. It also held for the first time that sentences imposed under the aggravated identity theft statute run consecutively to all other sentences, including state sentences. Further, they are not subject to USSG § 5G1.3 adjustments. Gilbert was in the MDOC’s custody due to a parole violation when he was charged in a federal complaint. He pled guilty to possessing device-making equipment and aggravated identity theft. In his § 2255 motion, he claimed that his trial attorney (W) misled him to believe the time he had spent in federal detention would be credited against his federal sentence. W had noted this error in the sentencing memo, and advised him of the error and his right to withdraw from the Rule 11 plea agreement. He informed the district court of the error at the sentencing hearing, and Gilbert refused the district court’s offer to allow him to withdraw his plea. He was sentenced to 39 months, with his second count running “‘consecutive to Count 1 and all other terms of imprisonment.’” He also received two years of supervised release. The district court denied his § 2255 motion. On appeal, the court first concluded the case was not moot. Gilbert argued that W “revealed the error too late because the district court had already accepted the plea and the plea agreement.” But the court disagreed, noting that the district court had given him the opportunity to withdraw his guilty plea. The court also rejected his assertions that W’s performance was deficient for not trying to negotiate a better plea deal or expedite the plea-through-sentencing process in federal court, holding that this theory was “sheer speculation,” and that Gilbert again failed to establish prejudice. It also rejected his argument that trial counsel and appellate counsel were ineffective for not challenging the district court’s ruling that the plain language of § 1028A unambiguously required it “‘to run the aggravated identity theft statute consecutive to the state parole-violation sentence.’” The court noted that while it had “held that § 1028A requires an identity theft sentence to run consecutive to all other federal sentences,” it had not previously “considered whether a separate state sentence qualifies as ‘any other term of imprisonment.’” It now determined that, “read naturally, the term ‘any other term of imprisonment’ encompasses state sentences.” Affirmed.
Motion to suppress a confession; Voluntariness; Whether defendant’s incriminating statements were “coerced”; The “coercion test”; United States v Rigsby
The court held that defendant-Jacobs’s motion to suppress his incriminating statements should have been denied where, under the totality of the circumstances, there was no evidence that the statements were “involuntary.” Thus, it reversed the district court’s ruling granting his motion. When Jacobs heard that there was an arrest warrant issued for him in connection with a drug store robbery, he turned himself in. The warrant was issued after the police found his fingerprint on a package of gum he left at the scene. At the police station, a detective (A) asked Jacobs a few general questions and then read him his Miranda rights, which Jacobs signed. Jacobs initially denied that he had committed the robbery, but eventually made several incriminating statements, explaining how he committed it and his actions afterward. At trial, he moved to suppress his incriminating statements to A, alleging that they were involuntary because A’s questioning was “impermissibly coercive.” After the district court granted the motion, the government brought an interlocutory appeal. Applying the Rigsby coercion test, the court first held that A did not “engage in any objectively coercive conduct.” It noted that he always spoke “in a conversational tone, offered Jacobs food and drink, never brandished a weapon or handcuffs, and did not threaten or use violence.” Additionally, the interview was only about two hours long, and he gave Jacobs a break from questioning. While he threated to get a search warrant, “a threat to perform a lawful search isn’t objectively coercive.” Further, A’s conduct was not sufficient to “overbear Jacobs’s will.” The court noted that he received Miranda warnings and had previous experience with the police. The court rejected Jacobs’s claim that the threat to get a warrant for his father’s house was so coercive that it made his statements involuntary. It disagreed with the district court’s characterization of A’s statements as a threat to “‘ransack’” the father’s home, especially where he specified that he would only be looking for the clothes Jacobs wore during the robbery. Thus, the court held that, under the totality of the circumstances, A did not use coercion to obtain Jacobs’s incriminating statements. Reversed and remanded.
PIP benefits; Statutory standing under MCL 500.3112; C-Spine Orthopedics, PLLC v Progressive MI Ins Co
The court concluded that it was compelled by binding precedent to reverse the trial court’s ruling granting summary disposition in favor of Allstate and remand under C-Spine Orthopedics. The lawsuit involves C-Spine’s efforts to collect PIP benefits based on certain assignments executed by B, “who was injured in a motor vehicle accident and had received medical treatment from C-Spine in relation to the injuries.” Allstate insured the car in which B “was riding when he was injured, and there is no dispute that Allstate is the responsible no-fault insurer. The trial court ruled that C-Spine was not the real party in interest and lacked standing at the time the action was filed.” It reasoned that C-Spine “had transferred all of its rights and interests in certain accounts receivable, including those in relation to services provided to [B], to third-party factoring companies before commencing the suit. C-Spine eventually obtained counter-assignments executed by the factoring companies, ostensibly conveying the accounts receivable back to C-Spine, but the trial court refused to consider the counter-assignments because they were not produced until after the close of discovery.” The court concluded “the trial court did not take into consideration the counter-assignments offered by C-Spine because they were produced after the close of discovery. And in C-Spine Orthopedics, the trial court effectively did not take into consideration the counter-assignments because they were not executed until after the litigation was commenced.” Applying C-Spine Orthopedics, the court concluded that C-Spine, “having statutory standing under MCL 500.3112, has standing in this case and is the real party in interest.” The court noted “that because the trial court did not take into consideration the counter-assignments given that they were not produced until after discovery, which ruling is not challenged on appeal, C-Spine Orthopedics would appear to dictate that the factoring companies be added to the suit on remand as necessary parties, MCR 2.205(A), to eliminate the risk of a second lawsuit by” those companies.
Termination under § 19b(3)(b)(ii); Failure to prevent sexual abuse of the children; Best interests of the children; MCL 712A.19b(5); In re Olive/Metts Minors; Guardianship; In re Rippy
Holding that the evidence supported that respondent-mother “failed to protect her children from sexual abuse—even facilitating their victimization—and that termination was in all the children’s best interests” the court affirmed termination of her parental rights. It rejected her argument that the DHHS failed to prove a statutory ground for termination. First, the DHHS presented evidence that she knew about the attempted sexual abuse of one of the children “and still allowed her adult son to spend time with her younger children, leading to the sexual abuse of” another one of the children. She “‘had the opportunity to prevent the . . . sexual abuse’ of [the second child] and ‘failed to do so.’” In addition, her statements revealed that, even after the children had accused the adult son of sexual abuse, she supported him and disbelieved the allegations. “This minimization of the son’s alleged conduct is persuasive evidence that the children are reasonably likely to suffer abuse if returned to” her custody. In sum, her “egregious conduct in failing to prevent the sexual abuse” and her indifference to the sexual exploitation, supported “the conclusion that there is a ‘reasonable likelihood that the child[ren] will suffer injury or abuse in the foreseeable future’ if returned to” her care. The court also rejected her claim that termination was not in the children’s best interests “because she was bonded with them and because a guardianship would have preserved that bond.” It noted that the trial court considered her “bond with each child and found that it was unhealthy and had been strained because” she failed to protect the children. It “also considered a variety of other factors, such as the benefits of the children’s current placements, how the children were doing in their placements, and whether the children were likely to be adopted.” Finally, neither condition for a guardianship was met. The “DHHS did not demonstrate that termination was not in the children’s best interests, and the” trial court ordered it to initiate termination proceedings. There was “also no indication in the record that a guardianship was requested or that anyone would have agreed to that arrangement.”
Termination under § 19b(3)(k)(iii); Relative placements; MCL 712A.13a(1)(j); Children’s best interests; Case service plan; Bond with the children
Holding that the trial court did not err in terminating respondent-mother’s parental rights to the children (AW and CS), the court affirmed. While she argued “that the trial court erred by terminating her rights without providing her services to reunify the family, at no time did she request any assistance and in fact she told the court that she wished to sign over her parental rights.” Respondent’s argument also failed “to recognize that while the general rule is that ‘[r]easonable efforts to reunify the child and family must be made in all cases[,]’ there is an exception to that rule in cases such as this” where aggravated circumstances exist, pursuant to MCL 722.638. There was no question that she “abused AW and abusing a child or sibling by battering is considered an aggravating circumstance.” The trial court’s finding that § (k)(iii) existed “was not clearly erroneous in light of the fact that respondent admitted to battering AW when she said she beat AW in the head until AW’s head was bleeding. AW and CS testified that respondent battered AW with a gun, a thick wooden stick, and a broom handle, along with respondent’s own hands and feet. That respondent used wooden objects to beat AW until she bled from the head is undisputed, and therefore, the trial court did not clearly err when it found respondent battered AW.” Given that it “found aggravating circumstances existed, it was not obligated to provide respondent with a case service plan or other reasonable efforts.” The record made clear she “put her children at serious risk. She admittedly beat one child for almost an hour and admitted to subjecting the minor child to prior beatings. AW testified that she was afraid of respondent and respondent seemingly showed no remorse for having beaten her child to a point where she should have been hospitalized. Further, during the trial, the record makes clear that respondent’s anger issues remained as she grew frustrated and told the trial court she wanted to relinquish her parental rights.” As the DHHS stated “in the brief on appeal, respondent stated: ‘If I’m signing my rights over, I don’t see why we are still in court.’” After questioning from the trial court, she “again stated her desire to relinquish her parental rights while naming the individuals with whom she wanted her children placed.” Respondent also argued the trial court did not address the children’s placement before finding that termination was proper. The court determined that because “neither of the children were placed with a relative within the version of MCL 712A.13a(1)(j) applicable at the time, the trial court did not err by failing to address” their placement. Finally, it concluded “the trial court did not clearly err when it found that it was in the children’s best interests to terminate respondent’s parental rights.”