Kaitlyn Elias Fishman Stewart PLLC Jessica Fleetham Bill Gilbride Ingham County Bar Association Tim Kramer Dan Kielczewski Nicholas H. Klaus MDTC Tom Quilter Steven Susser
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summaries of opinions as they are released from the Michigan Supreme Court, Michigan Court of Appeals (published & unpublished), and selected U.S. Sixth Circuit.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
Sufficiency of the evidence; CSC I; First-degree home invasion; Whether defendant entered the complainant’s home without permission; Waiver of right to testify; Ineffective assistance of counsel; Failure to effectively cross-examine the complainant; Sentencing; Scoring of 10 points for OV 4; Personal protection order (PPO)
The court held that the evidence was sufficient “defendant did not have permission to enter the complainant’s home at the time he digitally penetrated her against her will.” Also, he was not deprived of his right to testify in his own defense, and he was not denied the effective assistance of counsel. Finally, the trial court properly scored 10 points for OV 4. The complainant and defendant used to date and have young children in common, for whom they shared custody on an alternating-week basis. His CSC I and first-degree home invasion convictions arose out of a 9/28/18 child exchange. Defendant claimed the prosecution failed to prove that he entered the complainant’s home without permission, and thus, his convictions were not supported by sufficient evidence. She testified about an incident that occurred during the child exchange immediately before. “She stated that defendant threatened to break her phone, threw items at her car, and chased her around the neighborhood in his vehicle. She called 911 and asked for a civil standby.” Additionally, she indicated that, this time, she locked the door before he “arrived, and brought the children out to defendant one at a time because she did not want him in her home. She testified that she attempted to close the door before defendant entered the house, she did not give him permission to enter the house, and she did not want him to enter the house.” While clearly a reticent witness for the prosecution, “she acknowledged that she told the police that defendant put his foot in the door and pushed his way in and that she was not lying when she said that. She reported that once he was in the house, defendant demanded to see her cell phone; however, she” hid it before he arrived. He started patting her down “to locate the phone, and she pushed him and told him to get away. After the assault, defendant would not let her leave the house, so she went through a window to check on the children who were asleep in the car.” There was also testimony that she sought to obtain a PPO against him. “Moreover, she testified that her brother’s large dog was loose and that she generally put the dog in her brother’s room when defendant was over because the dog did not like him.” This evidence supported an inference that she did not intend to have him in her house. There were contradictions in her testimony, but when a conviction is based on contradictory testimony, the court must “defer to the jury’s decision unless the ‘testimony was so far impeached that it was deprived of all probative value or that the jury could not believe it or [the testimony] contradicted indisputable physical facts or defied physical realities . . . .’”
Sufficiency of the evidence; Assault of a prison employee while incarcerated in jail; MCL 750.197c; Sentencing; Scoring of OVs 12 & 19
The court affirmed defendant’s conviction of assault of a prison employee while incarcerated in jail and the trial court’s scoring of OV 19, but reversed its scoring of OV 12 and remanded. The prosecution and defendant stipulated that at the time of the incident, defendant was legally confined in jail. “In addition, based on the evidence presented to the jury, it would be illogical to conclude that defendant was unaware” that victim-Deputy E was an employee of the jail. The question was whether sufficient evidence was presented for the jury to determine that defendant assaulted E. Testimony from E, Deputy L, and Sergeant O detailed for the jury how defendant held onto E’s leg and resisted commands to let go. “The surveillance video played at trial confirmed their account of the incident and called into question the testimony of” an inmate. Further, defendant’s claim that he did not possess the requisite intent to assault E lacked merit. E’s “testimony provided that defendant reached out for his leg after both men fell to the ground, and would not let go when instructed to do so by himself,” L, and O. “This testimony, in addition to the surveillance video of the incident, was evaluated by the jury along with” D’s testimony. “Based on this evaluation, the jury determined that the testimony of the officers was more credible.” But the court remanded for resentencing.
Sentencing; Modification of restitution order; The Mandatory Victims Restitution Act (MVRA); 18 USC § 3664(f)(1)(A) & (f)(2); Whether a plea agreement appeal waiver deprived the court of jurisdiction; Whether the appeal waiver covered an appeal of the denial of restitution modification; Fed.R.App.P 4(b); § 3742
The court held that defendant-Hack’s plea agreement’s appeal waiver barred him from appealing his restitution order. He pled guilty to conspiracy to commit bank fraud, mortgage fraud, and wire fraud. In addition to imprisonment and supervised release, he was ordered to pay $803,420 in restitution to mortgage companies. The district court never set a post-release payment schedule. Hack moved to have his restitution order modified to change the incremental payments to reduced lump-sum payments, but the district court ruled that it did not have authority under the MVRA to do so. After holding that it had jurisdiction to review Hack’s appeal, the court considered whether his plea agreement waived his ability to appeal the restitution section of the judgment. It held that the agreement “broadly refers to ‘the resulting sentence,’ of which restitution is part.” Further, the agreement did “not list any exceptions to the appeal waiver in which his present appeal might fall.” Thus, his plea agreement waived his right to appeal the restitution order. The court noted that the district court could not modify the entire restitution amount under the MVRA. But Hack was correct that failing to set a full restitution payment schedule was error. The district court imposed an incomplete schedule as it never set the post-release payments. “The MVRA offers district courts discretion in determining the schedule’s precise terms, ‘set[ting] forth numerous possible methods of payment, including a lump-sum payment, installments, periodic nominal amounts, or a combination of methods.’” The court affirmed the order denying Hack’s motion to modify the restitution order, but encouraged “the district court to set a payment schedule in an expeditious manner, conducting any proceedings it deems necessary to ensure that the schedule it institutes accounts for the factors that § 3664(f)(2) delineates and the circumstances of the case.”
Sentencing; Compassionate release; 18 USC § 3582(c)(1)(A)(i); First Step Act § 403(b); Congressional intent; United States v. Tomes; United States v. Owens
Relying on Tomes, the court held that non-retroactive First Step Act amendments are excluded “from the category of extraordinary or compelling reasons for compassionate release, whether a defendant relies exclusively on the amendments or combines them with other factors.” Defendant-Jarvis, who was convicted of bank robbery, conspiracy, and firearm charges, was resentenced to 40 years in prison. He had already served 26 years. He moved for compassionate release, but the district court denied his motion, ruling that “non-retroactive changes in the law could not serve as the ‘extraordinary and compelling reasons’ required for a sentence reduction.” The court noted that if Jarvis was sentenced today, the sentence imposed for his second firearm conviction would be reduced. But “Congress expressly chose not to apply this change to defendants sentenced before the passage of the” First Step Act. Jarvis argued that even if the First Step Act’s amendments alone did not constitute extraordinary and compelling reasons, they did so in combination with COVID-19, his high blood pressure, and his efforts at rehabilitation. The court rejected this reasoning, reiterating the reasoning in Tomes that § 3582(c)(1)(A) “does not give district courts a license to ‘end run around Congress’s careful effort to limit the retroactivity of the First Step Act’s reforms.’” The court held that under Tomes, which is binding precedent, it was not permitted “to treat the First Step Act’s non-retroactive amendments, whether by themselves or together with other factors, as ‘extraordinary and compelling’ explanations for a sentencing reduction.” However, it noted that “for those defendants who can show some other ‘extraordinary and compelling’ reason for a sentencing reduction . . ., they may ask the district court to consider sentencing law changes like this one in balancing the § 3553(a) factors—above all with respect to the community safety factor.” The court rejected the argument that the holding in Tomes was merely dicta, and that the reasoning in Owens should prevail. Affirmed.
Divorce; Request for attorney fees as a sanction; MCR 1.109(E)(5) & (6); MCL 600.2591; “Frivolous”; Motion to quash subpoenas under MCR 2.605(A)(4)(a); The court’s appellate jurisdiction; MCR 7.203(A)(1)
Concluding that plaintiff-ex-wife’s appeal was limited to the denial of her request for attorney fees as a sanction, the court held that the trial court did not abuse its discretion in doing so. She asserted that the trial court also abused its discretion by granting defendant-ex-husband’s motion for a more definite statement, as well as his motion to quash subpoenas and his request for a protective order, and that “her motion to modify child support satisfied MCR 2.119.” She identified the trial court’s 3/16/20 order as the final order from which she was appealing. But that order did not dispose of all claims in the case and was not “designated as final under MCR 2.604(B).” It also was not a postjudgment order concerning a minor’s custody or domicile, “and did not include a governmental immunity claim. Nonetheless, because the order implicitly denied plaintiff’s request for attorney fees, and denied defendant’s request for attorney fees, MCR 7.202(6)(a)(iv)” applied. In addition, MCR 7.203(A) provides that the court “has ‘jurisdiction of an appeal of right filed by an aggrieved party’ from a ‘final order’ that denied attorney fees.” However, an appeal under this provision is limited by MCR 7.203(A)(1) “‘to the portion of the order with respect to which there is an appeal of right.’ Accordingly, such ‘appeals only pertain to the award of attorney fees,’ and” any other issues were beyond the court’s jurisdiction. As to the denial of attorney fees, it determined that the “order granting defendant’s motion to quash implicitly denied plaintiff’s request for attorney fees. Because plaintiff was not the prevailing party in this case, she was not eligible for attorney fees.” He moved to quash her subpoenas under MCR 2.305(A)(4)(a). She contended that “she was entitled to attorney fees because if defendant’s motion to quash was sincere, he would have responded to the subpoena issued to him.” But the court noted that, even if he had responded, this “would not have resolved the question of whether the subpoenas issued to defendant’s employer, the employer’s president and human resources department, and two employees of the accounting firm used by his employer were unreasonable or oppressive.” Affirmed.
Denial of a lawful permanent resident’s (LPR) visa applications for his wife & children; The doctrine of consular non-reviewability; Whether the denial violated the LPR’s constitutional rights; Substantive & procedural due process claims; Administrative Procedures Act claim; Potential revocation of the LPR’s I-130 petition; Possible revocation of LPR status; Premature claims
[This appeal was from the ED-MI.] Holding that the doctrine of consular non-reviewability applied to the claims of plaintiff-Ahmed’s wife and children, and that the denial of his visa applications for them did not violate his constitutional rights, the court affirmed the district court’s denial of relief. It also affirmed the denial of leave to amend the complaint to assert claims as to the potential revocation of his I-130 petition and LPR status, on futility grounds. He filed an I-130 petition on behalf of his wife and children to bring them to the U.S. The initial petition was approved, allowing them to move ahead with their applications. They “visited the U.S. consulate in Yemen to apply for the visas.” They were interviewed several times by consulate officers, both in Yemen and then in Malaysia after they moved there. In 2019, “the U.S. consulate in Malaysia denied the family’s visa applications due to lingering concerns about their identities. At roughly the same time, the consulate sent Ahmed’s I-130 petition to the U.S. Citizenship and Immigration Services office in Vermont for ‘review and possible revocation’—for further review, in other words, of whether it should continue to process the application or revoke it.” The court first held that it had “no authority to second guess the visa decisions of the American consulate” and thus, left those decisions in place. As the Supreme Court recently noted, for over a century it “‘has recognized that the admission and exclusion of foreign nationals is a fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.’” Ahmed’s wife or children could not “side-step this prohibition by invoking their own federal constitutional rights. Noncitizens living abroad do not have any American constitutional rights.” As to his constitutional rights, “American residents—whether citizens or legal residents—do not have a constitutional right to require the National Government to admit noncitizen family members into the country.” This includes spouses. The court rejected Ahmed’s substantive and procedural due process claims, noting that the procedural claim failed “because the consulate provided a facially legitimate reason for the visa denials: concerns about Ahmed and his putative family’s identity.” The court also found that his claim as to his I-130 petition was premature.
Auto negligence; Whether plaintiff suffered a serious impairment of body function; MCL 500.3135(1) & (5); McCormick v Carrier; Aggravation of preexisting conditions; Wilkinson v Lee
The court held that the trial court erred by granting defendants summary disposition of plaintiff’s auto negligence claim. The trial court found that plaintiff could not show a serious impairment of body function as he was already impaired as a result of a prior accident. On appeal, the court agreed with plaintiff that the trial court erred by granting summary disposition for defendants because there remained genuine issues of material fact as to whether he sustained a serious impairment of body function as a result of the accident that affected his ability to lead his normal life. “The record of plaintiff’s hospital visit from the day after the accident attributed plaintiff’s neck and back pain to an exacerbation of his preexisting chronic conditions. There was evidence that [he] then pursued a course of physical therapy without success in alleviating his increased impairment before being subjected to MRI scans.” There was also evidence that the aggravation of his “conditions that constituted his impairment was observable in MRI images that showed disc extrusions and bulges that were separate and distinct from the changes attributable to his prior neck surgery that were also shown in the MRI images. A jury could reasonably conclude from such evidence that the impairment was observable or perceivable from actual symptoms or conditions by someone other than plaintiff.” Further, it was “apparent from the trial court’s ruling that its decision was based on its view of the relative strength and credibility of the parties’ evidence, and the trial court erred by justifying its summary disposition ruling with impermissible findings of fact.” Finally, the trial court “seemingly concluded that because plaintiff had preexisting disabilities, his normal manner of living could not be further affected by” the accident. However, it “ignored the record evidence that plaintiff could not go for as long of hikes or fish as frequently as he had between” the previous accident and the current one “because it was difficult to get in and out of the boat.” It concluded that there was “a genuine question of material fact regarding whether plaintiff’s impairment affected his general ability to lead his normal life. Notably, ‘there is no quantitative minimum as to the percentage of a person’s normal manner of living that must be affected.’” Reversed and remanded.
Termination under §§ 19b(3)(c)(i) & (j); In re Williams; Principle that failure to comply with the case service plan is evidence that the parent will not be able to provide proper care & custody for the child & that the child will be harmed if retuned to the parent’s home; In re White; Reasonable reunification efforts; MCL 712A.19a(2); In re Hicks/Brown; Accommodations under the ADA; In re Terry; A parent’s responsibility to participate in services that are offered; In re Frey; Best interests of the children; MCL 712A.19b(5); In re Gonzales/Martinez
Holding that at least one statutory ground was met, that the DHHS made reasonable reunification efforts, and that termination was in the children’s best interests, the court affirmed termination of respondent-mother’s parental rights. The trial court terminated her rights on the basis that she did not adequately participate in or benefit from the treatment offered, and failed to address her mental health issues, poor parenting skills, and housing instability. On appeal, the court rejected her argument that the DHHS failed to prove a statutory ground for termination. “Despite years of assistance, she was in no better position to parent her children than when they were removed from her care two years earlier.” And there was “no reasonable likelihood that respondent would be in a position to safely parent her children within a reasonable time.” As such, the trial court did not err by finding that “the conditions that led to adjudication continued to exist and the children would be at risk of harm in respondent’s care.” The court also rejected her claim that the DHHS failed to make reasonable efforts toward reunification because it failed to consider her psychiatric condition and hearing impairment when structuring the treatment plan. It noted she failed to participate in the referred services, and that there was “no indication that she would have fared better had additional or alternative services been offered.” Finally, it rejected her contention that termination was not in the children’s best interests, finding the trial court “fulfilled the mandate to decide the best interests of each child individually, specifically considering the unique circumstances of each child and their own individual needs before concluding that termination of respondent’s parental rights was in all of the children’s best interests.”
Petition for supervision of the administration of a trust; Standing; “Interested person”; MCL 700.1105(c); MCR 5.125; In re Rhea Brody Living Trust (On Remand); Harmless error; Trustee appointment; MCL 700.7706
While the court concluded that the probate court erred in determining that appellee-Rizik (the trustee of two other, related trusts) had standing to file the petition for supervision of the administration of the Revocable Trust at issue, the error was harmless because another party (Steven Howe) had standing and supported the relief Rizik sought. The court further held that the probate court clearly erred in appointing appellee-Sippell as trustee where there was no record evidence supporting that appellant-Thomas Howe could not serve as trustee. Thus, it affirmed the order that the administration of the Revocable Trust be supervised, vacated the portion of the order appointing Sippell as trustee, and remanded for the probate court to explain what evidence it “relied on when it determined that it was inappropriate for Thomas to serve as trustee of the Revocable Trust and how those findings relate to MCL 700.7706(2)” as to the Revocable Trust. When Beverly Howe amended and “restated” the Revocable Trust, she was named as trustee, her son Thomas was named as successor trustee, and her son Steven was named alternate successor trustee. There were two other trusts, referred to as the Family Trusts. After Thomas and Steven were removed as trustees of those trusts, Rizik was appointed trustee of the Family Trusts. As to standing, the court determined that while the interested person inquiry under MCL 700.1105(c) and MCR 5.125 is flexible, “Rizik did not have ‘a legally protected interest that [was] in jeopardy of being adversely affected,’ . . . or ‘some real interest in the cause of action, or a legal or equitable right, title, or interest in the subject matter of the controversy[.]’” Instead, the record showed that he “was simply knowledgeable about the Family Trusts and the underlying family dynamics.” But the probate court’s error in this regard was harmless because Steven had standing as a beneficiary of the Revocable Trust and indicated at a hearing that he was joining Rizik’s petition. As to the appointment of Sippell as trustee, while it appeared “the probate court found that Thomas and Steven were unable to work together as cotrustees and that permitting them to serve as cotrustees would not be beneficial to Beverly, there is no record evidence to support these findings.”