Nonserious misdemeanor; Driving without valid license; MCL 257.904(1); MCL 769.5(3) & (4); People v Mason; Rebuttable presumption of nonjail, nonprobation sentence; Departure sentence; Proportionality; Ability to pay fees & fines; “Manifest hardship”; MCR 6.425(D)(3)

The court held that resentencing was required because the district court did not fully explain why jail was warranted for defendant’s nonserious misdemeanor. Defendant pled guilty to driving without a valid license, and the district court imposed 93 days in jail based on her repeated license, registration, and insurance violations. The circuit court affirmed. On appeal, the court held that MCL 769.5 creates a rebuttable presumption that a nonserious misdemeanor should receive a “fine, community service, or other nonjail or nonprobation sentence,” and a court may depart only if it states “reasonable grounds” on the record. The court recognized that defendant’s lengthy history of traffic violations was relevant, but held that the district court could not rely on unpaid fines without findings that she could pay without “manifest hardship” and failed to make a good-faith effort. The court reasoned the district court’s conclusion that employment meant she was willfully refusing to pay “does not appear to have been supported by the record.” It also held that the district court did not adequately explain why this offense was outside an ordinary driving-without-a-license case because the “bad driver” finding was not fully supported. Sentence vacated and remanded for resentencing.

Ineffective assistance of counsel; Adequate preparation; Failure to impeach the victim with prior inconsistent statements; Prejudice; Abandoned claim as to the presentence investigation report (PSIR)

Holding that any ineffective assistance by trial counsel in cross-examining the victim did not warrant relief and that defendant abandoned his PSIR arguments, the court affirmed the trial court’s denial of his motion for relief from judgment. He was convicted of CSC I and conspiracy to commit CSC I. Two attorneys (R and N) acted as co-counsel in his trial. He first argued that they were ineffective because they “were not prepared to cross-examine the victim. However, [N] assured the trial court that he was prepared to cross-examine the victim after [it] gave him 20 minutes to review the testimony that he missed. Absent evidence that” he was unprepared, the court could not “find that his performance was defective on this basis.” Defendant also asserted that they were ineffective for failing “to impeach the victim’s trial testimony by cross-examining [him] about his prior inconsistent statements.” The court noted that it has “previously recognized numerous reasons why a competent attorney might, as a valid trial strategy, refrain from cross-examining a complaining witness in a child sexual abuse case.” But here, absent contrary evidence, it assumed “that trial counsel performed deficiently through [N’s] cross-examination of the victim. Nonetheless,” it found “no reasonable probability that the outcome of this case would have been different, but for trial counsel’s deficient performance on cross-examination. Having reviewed the inconsistences identified by defendant on appeal,” the court agreed “with the prosecution that they generally ‘relate to peripheral details.’ Moreover, many of the purported inconsistences are not actually inconsistent.” In addition, “the victim was not the only witness to provide incriminating evidence against defendant. The officer who wrote the police reports and the victim’s friends testified about their respective experiences in talking to [him] about the abuse.” The jury also heard a recording of defendant’s police interrogation.

CSC II under MCL 750.520c(1)(b); Touching for a sexual purpose; People v DeLeon; Other acts evidence; MCL 768.27a; Unfair prejudice; MRE 403; People v Watkins; People v Blackston; MRE 404(b); People v Smith; People v VanderVliet; Harmless error; Grooming testimony

The court held that some other acts testimony was properly admitted under MCL 768.27a, and other such testimony was properly admitted under MRE 404(b). While the trial court abused its discretion by not engaging in an MRE 404(b) analysis, the errors did not affect the trial’s outcome. The court found that grooming testimony was improperly admitted, but any error was harmless. Finally, it held that there was sufficient evidence that defendant touched the victim for a sexual purpose to support his CSC II conviction. The case arose from an incident that occurred while defendant was dating and living with a woman and her three daughters, including TP. The victim (KC) was also living there. The court first determined that admission of “testimony about defendant touching TP’s breast during a game” was proper under MCL 768.27a as it established that he “engaged in a listed offense against a minor.” And it was properly not excluded under MRE 403. The court next determined that the rest of the other acts evidence “was not admissible under MCL 768.27a because defendant’s actions and comments did not qualify as listed offenses.” But the evidence “was admissible under MRE 404(b).” The court found the trial court’s failure to conduct that analysis was harmless given that “defendant had notice and the opportunity to object to” its admission before trial due to “the prosecution’s notice of intent to introduce the same evidence under MCL 768.27a.” In addition, the other evidence of his “guilt was enough to sustain a conviction.” As to the brief reference to grooming during a detective’s testimony, “defendant amplified” this inadmissible evidence at trial. As to the sufficiency of the evidence, “KC testified that defendant touched her between her legs, i.e., her inner thigh, as she lay in bed.” Further, evidence indicated he did so intentionally, “as there was no indication” it was accidental. KC asserted that he “placed his hand underneath the blanket covering her and squeezed and groped her thigh for about three minutes. Defendant touching, squeezing, and moving his hands in a groping manner on the inner thigh of a 15-year-old girl who was lying in bed suggests that he did so for a sexual purpose, as there is not an otherwise socially reasonable or lawful explanation.” Affirmed.

Sentencing; Procedural reasonableness; Alleged district court speculation about a defendant’s criminal history; Application of a two-level “drug house” enhancement (USSG § 2D1.1(b)(12)); Substantive reasonableness; Within-Guidelines sentence; Denial of a mitigating-role reduction (§ 3B1.2); Consecutive sentences; Guidelines range calculation; Two-level reduction to base offense level under § 2D1.1(a)(5); Sufficiency of the evidence – 21 USC § 843(b) (knowing or intentional use of a communication facility in committing, causing, or facilitating a felony); District court’s questioning of a defendant; FRE 605; Substantial-rights harmlessness analysis; Right to a fair trial; Sufficiency of the evidence – aiding & abetting a drug transaction (18 USC § 2)

The court held that there was sufficient evidence to support defendant-Khari Smith’s convictions of using a phone to facilitate a drug offense and aiding and abetting drug distribution, and defendant-Saruba Smith’s conviction of the latter offense. It rejected Khari’s sentencing challenges and those raised by defendant-Logan. But it vacated Saruba’s sentence because the district court erred in failing to reduce her offense level under § 2D1.1(a)(5) after granting her a role reduction under § 3B1.2. On appeal, Logan only challenged her sentence, first arguing that “the district court procedurally erred by citing her ‘extensive criminal history.’” But the court found that, given the “evidence, the district court’s observations were not materially false or unreliable.” The court also rejected her challenge to application of the two-level “drug house” enhancement and her arguments that her sentence was substantively unreasonable. As to Khari’s sufficiency of the evidence claim, he did not “dispute that he intentionally used his phone to give Logan the phone number of a purported drug buyer, but he contends that he didn’t knowingly facilitate the drug deal.” The court was “not convinced.” It also rejected his claim that he should have been granted a mitigating-role sentence reduction, concluding that he brokered and participated in a drug deal. He did not show “that he’s ‘substantially less culpable’ than the average participant.” His challenge based on the sum of his consecutive sentences also failed “because the district court adequately explained its imposition of a consecutive sentence.” As to Saruba’s challenges to her conviction, for the first time, the court applied a substantial-rights harmlessness analysis to a Rule 605 error in a published decision. It concluded the district court’s clarifying questions to Saruba “ran afoul of Rule 605.” But it found that the error was harmless because the “questioning didn’t affect [her] substantial rights” in light of the evidence and a curative jury instruction. And it did not violate her right to a fair trial. But she was entitled to have her sentence vacated and to resentencing because the district court plainly erred in not applying the § 2D1.1(a)(5) reduction. Affirmed in part, vacated in part, and remanded for Saruba’s resentencing.

Tax foreclosure; Surplus proceeds; General Property Tax Act; MCL 211.78t; Hathon v Michigan; MCL 211.78t(11); Pre-Rafaeli v Oakland Cnty claims; Takings Clause; Const 1963, art 10, § 2; Rafaeli retroactivity; MCL 211.78t retroactivity; Schafer v Kent Cnty; Interest; Attorney fees; 5% sales commission; Dismissal without prejudice; MCR 2.116(C)(8)

The court held that plaintiffs first had to use MCL 211.78t to recover surplus proceeds from pre-Rafaeli tax-foreclosure sales, but the trial court erred by dismissing the plaintiff-appellant’s remaining claims with prejudice. Defendants foreclosed on plaintiffs’ properties before Rafaeli, and retained surplus sale proceeds. The trial court dismissed plaintiffs’ state tort and state and federal constitutional claims with prejudice. On appeal, the court held that Schafer and Hathon controlled because “MCL 211.78t creates a controlling and structured system” and is the “exclusive means of obtaining surplus proceeds.” It also noted that Hathon required “[p]roperly notified claimants” to “first utilize the statutory process” before challenging the adequacy or application of that process. The court rejected appellant’s attempt to avoid MCL 211.78t based on the pre-Rafaeli timing of the foreclosure sales, reasoning that Schafer and Hathon addressed pre-Rafaeli claims and were binding. But the court declined to decide whether MCL 211.78t provided constitutionally adequate relief as to interest, attorney fees, and the 5% sales commission because those challenges were premature until the statutory process was completed. Finally, the court held that dismissal should have been without prejudice because the trial court did not adjudicate the merits, and appellant should “retain [her] prerogative to reassert” claims to the extent the statutory remedy proved inadequate. Affirmed in part, reversed in part, and remanded.

Quiet title; Whether a deed was intended to be an equitable mortgage; Grant v Van Reken

Holding that neither party was entitled to summary disposition in this quiet title action involving a dispute over whether a deed was an equitable mortgage, the court reversed and remanded. The case arose from a loan defendant-Broaden made to third-party defendant-Tinnon, who executed a quitclaim deed (the Broaden Deed) of the property “to Broaden ‘for the full consideration of’ $20,000.” They also executed a document (Exhibit A), which provided that the property would be used as security for $20,000 that would be paid back in about 30 days. After “almost a year without repayment, Broaden recorded the” Deed. Days later, “Tinnon executed a third quitclaim deed of the property to” plaintiff-CKT, which recorded its deed and filed this action. The trial court granted Broaden’s summary disposition motion and denied CKT’s. On appeal, the court noted “CKT’s complaint claimed that the Broaden Deed was an equitable mortgage. Thus, as the moving party seeking summary disposition” Broaden had the initial burden of proof to show that it was not. “By failing to address the equitable-mortgage aspect of CKT’s claim whatsoever, Broaden did not satisfy this burden.” The court further noted that while “CKT did not depose or otherwise provide any testimony from Tinnon” about his intent as “to the Broaden Deed, it did provide documentary evidence in support of its claim that the Broaden Deed was intended to be an equitable mortgage.” It provided Exhibit A, “which explicitly provides that the property ‘will be used as security’ for the $20,000 loan. Broaden’s counsel represented to the trial court that Broaden signed this document. Accordingly, CKT provided sufficient documentary evidence to create a genuine issue of material fact regarding whether Broaden and Tinnon intended the exchange to be a mortgage. Broaden did not submit any affidavits or sworn testimony challenging Exhibit ‘A’ or claiming that she bore no such intent.” Thus, the court found that the trial court erred in granting summary disposition and quieting title in Broaden’s favor.

Zoning; Special use permit; Ordinance Residential Building Clustering Plan; Circuit court appeal; MCR 7.122(B); Written decision; Certification of minutes; Subject-matter jurisdiction; Untimely appeal; Freedom of Information Act (FOIA)

The court held that the circuit court lacked subject-matter jurisdiction because appellants filed their zoning appeal more than 30 days after the planning commission issued its decision in writing. Appellee-Emmet County Planning Commission approved intervening appellee’s application to amend its special use permit at a January 2024 public meeting, and the zoning administrator sent a January 22 letter confirming approval. The commission later certified the minutes, and appellants filed their circuit court appeal on March 8. On appeal, the court held that MCR 7.122(B) unambiguously required an appeal within 30 days after certification of minutes or after the commission “issued its decision in writing, whichever deadline comes first.” The court next held that the January 22 letter triggered the appeal period because it provided written confirmation that the application was approved. It rejected appellants’ arguments that the letter was insufficient because it was not signed by the commission chair or made publicly available before a FOIA request, reasoning that “MCR 7.122(B) requires none of these things.” Because the appeal was filed 46 days after the written decision, it was untimely. Affirmed.

Tax foreclosure; Surplus proceeds; General Property Tax Act; MCL 211.78t; Hathon v Michigan; MCL 211.78t(11); Pre-Rafaeli v Oakland Cnty claims; Takings Clause; Const 1963, art 10, § 2; Rafaeli retroactivity; MCL 211.78t retroactivity; Schafer v Kent Cnty; Interest; Attorney fees; 5% sales commission; Dismissal without prejudice; MCR 2.116(C)(8)

The court held that plaintiffs first had to use MCL 211.78t to recover surplus proceeds from pre-Rafaeli tax-foreclosure sales, but the trial court erred by dismissing the plaintiff-appellant’s remaining claims with prejudice. Defendants foreclosed on plaintiffs’ properties before Rafaeli, and retained surplus sale proceeds. The trial court dismissed plaintiffs’ state tort and state and federal constitutional claims with prejudice. On appeal, the court held that Schafer and Hathon controlled because “MCL 211.78t creates a controlling and structured system” and is the “exclusive means of obtaining surplus proceeds.” It also noted that Hathon required “[p]roperly notified claimants” to “first utilize the statutory process” before challenging the adequacy or application of that process. The court rejected appellant’s attempt to avoid MCL 211.78t based on the pre-Rafaeli timing of the foreclosure sales, reasoning that Schafer and Hathon addressed pre-Rafaeli claims and were binding. But the court declined to decide whether MCL 211.78t provided constitutionally adequate relief as to interest, attorney fees, and the 5% sales commission because those challenges were premature until the statutory process was completed. Finally, the court held that dismissal should have been without prejudice because the trial court did not adjudicate the merits, and appellant should “retain [her] prerogative to reassert” claims to the extent the statutory remedy proved inadequate. Affirmed in part, reversed in part, and remanded.

Zoning; Special use permit; Ordinance Residential Building Clustering Plan; Circuit court appeal; MCR 7.122(B); Written decision; Certification of minutes; Subject-matter jurisdiction; Untimely appeal; Freedom of Information Act (FOIA)

The court held that the circuit court lacked subject-matter jurisdiction because appellants filed their zoning appeal more than 30 days after the planning commission issued its decision in writing. Appellee-Emmet County Planning Commission approved intervening appellee’s application to amend its special use permit at a January 2024 public meeting, and the zoning administrator sent a January 22 letter confirming approval. The commission later certified the minutes, and appellants filed their circuit court appeal on March 8. On appeal, the court held that MCR 7.122(B) unambiguously required an appeal within 30 days after certification of minutes or after the commission “issued its decision in writing, whichever deadline comes first.” The court next held that the January 22 letter triggered the appeal period because it provided written confirmation that the application was approved. It rejected appellants’ arguments that the letter was insufficient because it was not signed by the commission chair or made publicly available before a FOIA request, reasoning that “MCR 7.122(B) requires none of these things.” Because the appeal was filed 46 days after the written decision, it was untimely. Affirmed.