Board of Health & Safety’s decision; Findings of fact & conclusions of law; Statutory authority; Distinguishing Loper Bright Enters v Raimondo; Lanzo Constr Co, Inc v Michigan Dep't of Labor; Public policy; Administrative law judge (ALJ)

Concluding that the circuit court properly held that the Board’s decision was authorized by law, the court affirmed. Defendant issued a citation to plaintiff, which plaintiff untimely appealed. An ALJ “found that plaintiff had good cause for its late appeal; however, the” Board overturned this decision. “The circuit court affirmed the Board’s decision.” Plaintiff indisputably received a copy of the citation on 11/8/21, but did not challenge it until 12/21/21, “thereby missing the 15-working-day window that ended on” 12/1/21. Accordingly, the Board was “authorized by law to deny plaintiff’s appeal.” The court held that this “was not an arbitrary or capricious decision when the Board properly considered the relevant facts and applicable law.” Plaintiff argued, “however, that the Board failed to provide its findings of fact and conclusions of law.” The court noted that in “its order, the Board properly explained the history of the case, noted each parties’ arguments, and referred to the Lanzo decision and ‘good cause’ standard when determining that plaintiff had not established that it was prevented from timely appealing the citation. The Board’s findings were sufficient to permit the circuit court’s review.” Plaintiff also pointed to Loper Bright, “a federal case dealing with federal law” that had “no particular relevance to this state-law dispute.” In any event, the court noted that “MCL 408.1041 is not ambiguous in requiring an employer to appeal a citation within 15 working days to prevent it from becoming the final order of the Board. The circuit court’s review ensured that defendant acted within its authority.” Finally, plaintiff argued “that the Board’s decision violated public policy because it would erode trust between agencies and regulated parties if an agency could not be held to its ‘promises.’” Plaintiff had not “identified any ‘definite indications in the law,’ to support a finding that it violated public policy for the circuit court to affirm the Board’s decision in this case.”

Sentencing; Proportionality; People v Steanhouse; People v Posey; Claim that defendant incurred a “trial tax” for declining a Cobbs agreement; People v Brown; People v Cobbs; Attorney fees under MCL 769.1k(1)(b)(iv); The Michigan Indigent Defense Commission Act (MIDCA); Plain error review; Constitutionality of MCL 769.1k(1)(b)(iv); Const 1963, art 8, § 9; People v Barber

The court held that defendant could not overcome the presumption his within-guidelines sentence was proportionate, and rejected his challenges to the imposition of attorney fees under MCL 769.1k(1)(b)(iv). He was convicted of AWIGBH and sentenced as a fourth-offense habitual offender to 84 to 240 months. He first asserted that he could “overcome the presumption that his within-guidelines sentence was proportionate by merely observing that the trial court did not provide an on-the-record justification for” it. The court noted “a within-guidelines sentence is reviewable without an on-the-record explanation. This is because the reviewing court can simply look to the trial court’s scoring of the guidelines to assess whether [it] abused its discretion by imposing a sentence that was not proportionate to the seriousness of the offense and the background of the offender.” Defendant’s sentence “accounted for the severe physical and psychological injuries to the victim; defendant’s history of criminal activity, including” his 8 prior felony convictions and 29 prior misdemeanor convictions; as well as his habitual offender status. He next asserted a “trial tax” was imposed on him where only a month before he was sentenced the trial court offered to sentence him to 48 months if he pled guilty as part of a Cobbs agreement. The court disagreed. It was “not apparent how a risk that the trial court punished defendant for exercising his right to trial relates to the proportionality of [his] sentence, and” it found that his argument was “otherwise plainly insufficient to carry his burden of establishing that his within-guidelines sentence was disproportionate under the circumstances.” The court noted “the fact that the trial court imposed a higher sentence than it would have imposed as part of the Cobbs agreement . . . establishes nothing. A Cobbs agreement is not intended to bind a trial court’s sentencing discretion.” Further, when the agreement was placed on the record, the trial court had not heard from the victim, whose trial testimony highlighted “the brutality of defendant’s attack” and the fact that it “was essentially unprovoked.” The court also found “no basis to conclude that the Legislature intended to repeal MCL 769.1k(1)(b)(iv) by implication as applied to indigent defendants when it passed the MIDCA” and that the statute “still applies to indigent defendants . . . .” Finally, it rejected his claim that the statute is unconstitutional under Article 8, § 9, of the Michigan Constitution. Affirmed.

Sentencing; Proportionality; People v Posey; Presumption that within-guidelines sentences are proportional

Holding that defendant’s within-guidelines sentences did not violate the principle of proportionality, the court affirmed. He was convicted of CSC I and II for sexually assaulting a minor. He was sentenced to 180 to 540 months for CSC I and 71 to 180 months for CSC II. The court concluded he failed to “overcome the presumption that his within-guidelines sentence was proportional.” He specifically cited “his age and that he had no history of prior convictions or substance abuse. As the prosecutor argues, the trial court is not specifically required to consider an adult defendant’s age, although it is a factor that may be considered.” As to his lack of prior convictions, “there was evidence that he had engaged in other uncharged acts of sexual assault. ‘A judge is entitled to rely on the information in the presentence report, which is presumed to be accurate unless the defendant effectively challenges the accuracy of the factual information.’ . . . Defendant did not challenge the PSIR as to these other sexual assaults.” The court noted that a jury found him “guilty of multiple counts of CSC. Defendant took advantage of his position of trust with the victim and her father, and he served the victim and her friend alcohol on the night of the offense. Further, defendant’s act of seeking out and sexually assaulting the victim again after the charged offense suggests that he was not remorseful of what he had done. Between [his] actions with the victim and the other potential victims mentioned in the PSIR, defendant’s conduct appears not to have been an isolated incident of sexual assault. For these reasons, the trial court did not abuse its discretion” in sentencing him within the guidelines.

Sufficiency of the evidence; AWIGBH; People v Blevins; Intent; People v Stevens; Principle that a victim’s injuries can be probative of a defendant’s intent; People v Dillard; Double jeopardy; Distinguishing People v Barber; Jury instructions; Ineffective assistance of counsel; Failure to make a futile objection; Diminished capacity; People v Carpenter; Unlawfully driving away an auto (UDAA); Using a motor vehicle without authority but without intent to steal (UMVWA)

Finding no errors requiring reversal, the court affirmed defendant’s convictions. He was convicted of AWIGBH, assault by strangulation, and UDAA for assaulting his brother-in-law, Paul. The trial court sentenced him to two years’ probation. On appeal, the court rejected his argument that the evidence was insufficient to support his AWIGBH conviction. “Based on defendant’s threats and his repeated punching of Paul’s face and head, the jury could infer that defendant intended to inflict great bodily harm less than murder.” It could also infer his intent on the basis of Paul’s injuries. Paul testified that “he sustained numerous injuries, including a large contusion to his head, bruising on the right side of his face and mouth, and cauliflower ear.” In addition, even if defendant presented evidence of mental health issues, he cited “no authority to support his assertion that his alleged anxiety diagnosis, reputation for mental health issues, or the fact that he was ‘having a meltdown’ rendered him unable to form the requisite intent to commit” AWIGBH. The court also rejected his claim that because his AWIGBH and assault by strangulation charges arose out of the same conduct, his convictions of both crimes violated double jeopardy. It noted that because the convictions did not arise from a single act of strangulation, this case was distinguishable from Barber. The court next rejected his contention that the trial court erred by failing to instruct the jury on the offense of UMVWA, a necessarily included lesser offense of UDAA. “‘[B]y expressly and repeatedly approving the jury instructions on the record, defendant waived any objection to the [potentially] erroneous instructions.’” And because he “was not entitled to an instruction on UMVWA, [defense] counsel’s failure to request such an instruction does not constitute ineffective assistance.” Finally, the court rejected his invitation to revisit Carpenter as to the issue of diminished capacity, noting it is bound to follow decisions of the Supreme Court.

Hearsay; Costs; MCR 2.625; Attorney fees under MCL 500.3148(1); Statutory interest under MCL 600.6013(8)

In these consolidated appeals concerning the rate of attendant-care fees to which plaintiff-Centria Home Rehabilitation was entitled, in Docket No. 365338 the court affirmed the trial court’s judgment for plaintiff. In Docket No. 365313, it affirmed in part and reversed in part the order denying plaintiff’s motion for costs, statutory interest, and attorney fees, and remanded, directing the trial court to “order statutory interest in accordance with MCL 600.6013(8).” In Docket No. 365338, defendant-insurer argued that the trial court abused its discretion by admitting hearsay testimony from plaintiff’s controller (R). The court held that R’s testimony as to the Optum Health Customized Fee Analyzer “publication did not constitute hearsay. [R] explained that he knew that plaintiff’s rate was reasonable because ‘we always hover’ in the 60% to 65% range of fees based on his review of the Optum publication. [R] did not testify regarding an out-of-court statement.” Rather, his testimony as to “the Optum publication was limited to his review of the publication as it pertained specifically to plaintiff’s rate, and [R] did not quote the publication itself. [R’s] testimony that plaintiff’s rate was reasonable because his review of the Optum publication showed that the rate fell in the 60th to 65th percentile did not constitute hearsay.” In Docket No. 365313, plaintiff first argued “that the trial court erred by denying its request for costs under MCR 2.625.” But the court held that plaintiff’s “single reference to MCR 2.625 in its motion was insufficient to address the merits of its claim. In light of plaintiff’s failure to provide any legal argument and citation to authority in support of its request for costs, and its failure to provide a bill of costs, the trial court did not abuse its discretion by declining to award costs under MCR 2.625.” Plaintiff also argued “that the trial court erred by denying its request for attorney fees under MCL 500.3148(1).” The court concluded that because the evidence showed “a bona fide factual uncertainty regarding the reasonable rate of attendant-care fees, the trial court properly denied” this motion. But the court agreed with plaintiff that the trial court erred in “declining to award statutory interest under MCL 600.6013(8).”

Termination of parental rights; Child’s best interests; MCL 712A.19b(5); In re LaFrance; Reasonable reunification efforts; In re Sanborn; Aggravating circumstances; MCL 712A.19a(2); In re Rippy; Effect of abuse; MCL 722.638(1)(a); In re Mason; Accommodations; In re Hicks/Brown

The court held that termination of respondent-father’s parental rights was in the child’s (LK) best interests, and the trial court was not required to provide him with reunification efforts or accommodations. His rights were terminated on the basis of his history of serious physical and verbal abuse of his children and their mother. On appeal, the court rejected his argument that termination was not in LK’s best interests, noting the trial court did not err by finding his “home was a dangerous, unsafe, and unstable environment for LK due to [his] verbally and physically abusive behavior.” The trial court found he “had shown no ability to parent LK and that [his mother] could provide [him] with the permanency, stability, and finality that he needed.” It also found “it was in LK’s best interests that he remain in the care of” his mother. The court also rejected his claim that the trial court erred by failing to provide him with a treatment plan to assist him with his mental health issues and parenting skills, and that his mental illness required reasonable accommodations tailored to his disability. It noted reasonable reunification efforts were not required because aggravating circumstances existed – abuse. As to accommodations, “reasonable efforts were not required in the first instance.” And he “cannot prevail on a claim that the DHHS failed to make reasonable accommodations for services it was not obligated to provide.” Affirmed.