Ineffective assistance of counsel; Failure to make a request for a warn & dismiss resolution

The court affirmed the trial court’s dispositional order referring respondent-juvenile to in-home probation. He was adjudicated after pleading guilty to CCW and “breaking and entering into a motor vehicle to steal property less than $200[.]” Respondent argued “that his trial counsel provided constitutionally deficient assistance when he failed to request that the trial court give [him] a warning and dismiss the case.” He contended “that his trial counsel was ineffective for failing ‘to make a request for a warn and dismiss resolution.”’ Unfortunately, he wholly failed “to explain why it was objectively unreasonable for his trial counsel to not make this request. By the time counsel could have made this request, respondent had already pleaded guilty, and his sentence was up to the trial court. While respondent’s trial counsel certainly could have requested a lighter punishment, decisions like that are quintessential matters of trial strategy, and ‘[w]e will not substitute our judgment for that of counsel on matters of trial strategy, nor will we use the benefit of hindsight when assessing counsel’s competence.’” Regardless, his argument also ignored “the fact that his trial counsel did request a lesser punishment than was imposed. Respondent’s trial counsel requested that respondent not be ordered to wear a tether, but the trial court apparently disagreed that a lesser punishment was appropriate because it placed respondent on probation with a tether.” This alone demonstrated that, even if his “trial counsel had requested ‘a warn and dismiss resolution,’ there was not a reasonable probability that his sentence would have been different.”

Ineffective assistance of counsel; Plea-offer advice; Lafler v Cooper; Adequate explanation of plea; People v Corteway; Sentencing; Proportionality; People v Steanhouse; Within-guidelines presumption; People v Posey

The court held that defendant did not establish ineffective assistance of counsel in connection with his rejection of the trial court’s informal plea offer and that his within-guidelines sentence for manslaughter was not unreasonable or disproportionate. Defendant and the victim, who were coworkers, got into a drunken fight in a hotel parking lot, and the victim later died after defendant punched him in the face. Before trial, the trial court floated an off-the-record one-year imprisonment offer if defendant pled guilty, but he rejected it and proceeded to trial on a self-defense theory. After his conviction, defendant sought a new trial and a Ginther hearing, claiming that counsel failed to adequately explain the offer, self-defense law, trial risks, and the likely guidelines range. On appeal, the court held that the offer was not a true Cobbs offer because it was not made on the record by the prosecutor. It also held that counsel conveyed the offer and did not perform deficiently. The court deferred to the trial court’s credibility findings at the Ginther hearing, where counsel testified that he explained self-defense, the guidelines, and repeatedly asked whether defendant wanted to go to trial, while defendant testified otherwise. The court next held that defendant failed to overcome the presumption that his within-guidelines sentence was proportionate. It explained that the trial court was aware of his lack of criminal history, remorse, and efforts to aid the victim, but reasonably concluded that those mitigating facts did not outweigh that he was the aggressor and caused the victim’s death. Affirmed.

AWIGBH sufficiency; People v Brown; Intent to do great bodily harm; People v Stevens; Bench trial; Findings of fact & conclusions of law; MCR 2.517(A)(1); People v Parkinson

The court held that sufficient evidence supported defendant-Raymond’s AWIGBH conviction and that the trial court’s factual findings and legal conclusions were adequate to support defendant-Rashard’s AWIGBH conviction after the bench trial. Defendants were involved in a long-running neighborhood dispute with the victims, S and B, that culminated in a fight. After Raymond confronted S, Rashard crossed the street and punched him, and S testified that both defendants later kicked him in the head while he was on the ground, leaving him with a concussion, trauma, contusions, and a shoulder injury. On appeal, the court held that the evidence against Raymond was sufficient because a rational factfinder could infer an intent to do serious injury of an aggravated nature from his forcible kicks to S’s head, the resulting injuries, and the parties’ history of hostile encounters, including prior threats. The court noted that even a single forceful kick to the head could support the required intent, particularly given Raymond’s statement during the confrontation: “I told you what I would do to you if you called the police on me again.” The court next held that Rashard’s challenge to the trial court’s findings failed because the court specifically found that he kicked S in the head and explained that repeated kicks to the head causing injuries serious enough to require ambulance transport demonstrated the required intent. It also rejected the claim that the trial court improperly relied on an aiding-and-abetting theory, noting that the trial court expressly recognized defendants were “not charged that way.” Affirmed.

Sufficiency of the evidence for a felony-firearm (MCL 750.227b(1)) conviction; People v Moore; Aiding & abetting

Holding that there was sufficient evidence for a rational trier of fact to find defendant guilty of aiding and abetting felony-firearm, the court affirmed her conviction. Her conviction “under an aiding-and-abetting theory was based on the undisputed evidence that” a man (L) shot the victim. It was clear from L’s testimony “that an assault took place, and that [L] at least intended to inflict great bodily harm on, if not kill, the victim. [L’s] testimony also established that he had a gun in his possession during the shooting. Therefore, a rational juror could conclude that [L] violated the felony-firearm statute.” In addition, a “rational juror could conclude that defendant performed acts to assist in the commission of [L’s] felony-firearm violation by supplying the gun and bullets used in the shooting and encouraging [L] to shoot the victim with the gun.” Finally, the court found that a “rational juror could conclude that defendant intended the commission of [L’s] felony-firearm violation.” There was evidence supporting a close association between them. While “defendant denied having a longstanding relationship with [L], [he] testified that they knew each other for 30 years and were particularly involved with one another because of their drug-related criminal activity. [L] testified that defendant was ‘like [his] family,’ and that she rescued him from homelessness and gave him drugs, housing, and food in exchange for [L] offering her protection. [L] also testified at length about defendant’s involvement in the plan to shoot the victim.” Given all the evidence, “a rational trier of fact could conclude that the elements of aiding and abetting felony-firearm were proven beyond a reasonable doubt, and that defendant procured, counseled, aided, or abetted [L] to carry or possess a firearm when he shot the victim.” The court noted that to the extent she challenged the victim’s credibility, it “‘must defer to the fact-finder’s role in determining the weight of the evidence and the’” witnesses’ credibility.

Sufficiency of the evidence; Armed robbery; MCL 750.529; Uttering counterfeit notes; MCL 750.253; Sentencing; Reasonableness & proportionality; Cruel or unusual punishment

The court affirmed defendant’s convictions of armed robbery and uttering counterfeit notes and his sentence as a fourth-offense habitual offender to 15 to 30 years for each conviction, to be served concurrently. “In the course of committing a larceny, [he] assaulted the victim by pointing what the victim reasonably believed to be a firearm at the victim.” This was “sufficient to prove that defendant committed an armed robbery regardless of whether [he] pointed an actual firearm at the victim or one of the BB guns resembling actual firearms that officers recovered.” Defendant was also convicted of uttering counterfeit notes. The evidence “was plainly sufficient to establish that [he] tried to tender fake money as payment to the victim for the PS5.” He contended “that the evidence presented at his trial was not sufficient to sustain his convictions because the victim’s testimony alone was not enough to prove beyond a reasonable doubt that defendant committed the crimes for which he was convicted.” He admitted “to an officer that he tried to buy a PS5 using ‘prop money,’ and other evidence corroborated the victim’s testimony—when officers searched defendant’s home, they found fake money and BB guns that resembled actual firearms. There was also circumstantial evidence that defendant set up the sale intending to defraud the victim because defendant orchestrated the sale using a fake Facebook account.” Thus, his convictions were “based on more than the victim’s testimony alone.” To the extent that he attempted “to challenge the sufficiency of the evidence supporting his convictions on grounds that the victim’s testimony was not credible, that argument” was misplaced. “In reviewing a challenge to the sufficiency of the evidence, this Court does not interfere with the fact-finder’s assessment of a witness’s credibility.” Defendant offered “no argument to overcome the presumption that his within-guidelines sentence was proportionate and thus reasonable.” The court found that on “this record, and particularly in light of [his] background and the circumstances surrounding the offenses for which he was convicted,” defendant’s within-guidelines sentence of 15 to 30 years “was reasonable and proportionate, and that the trial court did not abuse its discretion by imposing this sentence.” As for his “challenge to his sentence as cruel or unusual punishment, this Court has explained that ‘[a] proportionate sentence is not a cruel or unusual punishment.”’

Due process; Destruction of evidence; Arizona v Youngblood; Choice of counsel; United States v Gonzalez-Lopez; Judicial misconduct; Impartiality; People v Stevens; Ineffective assistance; People v Yeager; CCW, felony-firearm, & body armor possession by a felon; Great weight of the evidence; People v Nimeth

The court held (1) that defendant was not denied due process by the destruction of the booking-room recording, (2) that the trial court did not violate his right to counsel of choice or pierce the veil of judicial impartiality, (3) that he did not establish ineffective assistance of counsel, and (4) that his firearm convictions were not against the great weight of the evidence. Defendant was stopped twice while driving a Jeep, first for driving without headlights and then, after officers learned the vehicle was reported stolen, was arrested and found to have a loaded handgun in the center console and body armor in the trunk. At trial, he admitted knowing the body armor was in the vehicle but denied knowing about the gun, and he claimed his wife owned it. On appeal, the court held that the destruction of the recording from the police station did not violate due process because he failed to show that it was exculpatory or destroyed in bad faith. It explained that the erased recording would have conveyed only the same denial of knowledge that the jury already heard through defendant’s testimony and the dashcam recording, and that routine overwriting after seven days was not bad faith. The court next held that the trial court acted within its discretion in denying his day-of-trial request to replace counsel, given that he had raised no earlier concerns despite numerous pretrial hearings and had requested the trial date himself. It also held that a single instance in which the trial judge helped the prosecutor rephrase a question did not create the appearance of advocacy or partiality, especially because the judge sustained many defense objections and instructed the jury to disregard any judicial opinions. Finally, the court held that the ineffective-assistance claims failed on the existing record and that the jury was entitled to reject his denial of knowledge and find possession from the gun’s location in the center console within his reach. Affirmed.

Sufficiency of the evidence; Felonious assault; Felony-firearm; Ineffective assistance of counsel

Concluding that (1) there was sufficient evidence to support defendant’s felonious assault and felony-firearm convictions, and (2) she was not denied the effective assistance of counsel, the court affirmed. Victim-S testified that defendant “pulled out a firearm, walked over to [S’s] vehicle, pointed the firearm at [S], then started banging it on the hood of” S’s vehicle. S “also testified that while defendant was doing this, she kept saying that she was going to kill” S. The court found that this “testimony, if believed, provided a sufficient basis for the jury to find beyond a reasonable doubt that defendant committed an unlawful act that placed [S] in reasonable apprehension of an immediate battery, that she did so intentionally, and that she used a firearm to do so.” Thus, the evidence was “sufficient to support defendant’s convictions[.]” She countered that S’s “testimony was not worthy of belief because it was inconsistent.” This argument was misplaced. That S’s “testimony supporting defendant’s conviction was inconsistent is not grounds for concluding that the evidence was insufficient to support defendant’s conviction, and [her] argument to the contrary” was without merit. “Next, she claimed that her trial counsel was ineffective because he submitted an amended witness list naming five witnesses, but when questions arose about whether counsel had submitted an initial witness list, counsel represented that it was irrelevant because the prosecution had stipulated to two witnesses.” The court found that assuming “without deciding that this aspect of defense counsel’s performance was objectively unreasonable, defendant [failed] to explain how she was prejudiced by this performance.” She did “not identify who these uncalled witnesses were or what they would have said if called to testify at defendant’s trial.” Without this information, the court could not “conclude that, had these witnesses been called, there [was] a reasonable probability that the outcome of defendant’s trial would have been different.”

Ineffective assistance of counsel; Failure to make a request for a warn & dismiss resolution

The court affirmed the trial court’s dispositional order referring respondent-juvenile to in-home probation. He was adjudicated after pleading guilty to CCW and “breaking and entering into a motor vehicle to steal property less than $200[.]” Respondent argued “that his trial counsel provided constitutionally deficient assistance when he failed to request that the trial court give [him] a warning and dismiss the case.” He contended “that his trial counsel was ineffective for failing ‘to make a request for a warn and dismiss resolution.”’ Unfortunately, he wholly failed “to explain why it was objectively unreasonable for his trial counsel to not make this request. By the time counsel could have made this request, respondent had already pleaded guilty, and his sentence was up to the trial court. While respondent’s trial counsel certainly could have requested a lighter punishment, decisions like that are quintessential matters of trial strategy, and ‘[w]e will not substitute our judgment for that of counsel on matters of trial strategy, nor will we use the benefit of hindsight when assessing counsel’s competence.’” Regardless, his argument also ignored “the fact that his trial counsel did request a lesser punishment than was imposed. Respondent’s trial counsel requested that respondent not be ordered to wear a tether, but the trial court apparently disagreed that a lesser punishment was appropriate because it placed respondent on probation with a tether.” This alone demonstrated that, even if his “trial counsel had requested ‘a warn and dismiss resolution,’ there was not a reasonable probability that his sentence would have been different.”

Auto negligence; Governmental immunity; The Governmental Tort Liability Act; The motor vehicle exception (MCL 691.1405); Failure to yield the right of way; MCL 257.649a(1); Speeding; Applicability of MCL 257.649(7) where the vehicles were not at an intersection; Factual & proximate cause; Serious impairment of a body function; MCL 500.3135(1); The court’s jurisdiction; Hannay v Department of Transp; Seldon v Suburban Mobility Auth for Reg’l Transp; MCL 500.3135(5); McCormick v Carrier

In this auto negligence action, the court held that a question of fact existed as to whether defendant-school bus driver (Adams) negligently caused the collision, and that a genuine issue of material fact existed as to whether plaintiff sustained a threshold injury. Thus, it affirmed the trial court’s denial of summary disposition to defendant-school district. The district argued that “a reasonable juror could not find that Adams was negligent, as required under” the motor vehicle exception to governmental immunity, MCR 691.1405. The court disagreed. “Plaintiff’s primary theory of negligence is that Adams failed to yield the right of way in violation of MCL 257.649a(1) when he turned into” a school parking lot. The court concluded that, assuming “arguendo that this provision established a duty of care owed to plaintiff, a question of fact exists regarding whether Adams breached that duty. Defendant argues that the yielding requirement of MCL 257.649a(1) is nullified by plaintiff’s own violation of MCL 257.627” by speeding. It contended “that a speeding motorist forfeits the right of way under MCL 257.649(7).” However, that provision “only concerns rights of way at intersections, and undisputedly, the parties in this case were not at an intersection.” Thus, the court was not persuaded that “plaintiff’s speeding automatically forfeited his right of way and relieved Adams of the requirement to yield imposed by MCL 257.649a(1).” It concluded “that a question of fact existed whether Adams failed to exercise reasonable care and caution when making his turn. Video evidence showed that [he] failed to stop in the center turn lane before turning into plaintiff’s lane of travel, despite Adams’s claim that he stopped in the center turn lane for one to two minutes.” As to MCL 500.3135(1)’s serious impairment of body function requirement, the court held that it had jurisdiction to review the trial court’s ruling on the issue and that the trial court’s ruling was correct. The record supported “‘a physical basis’ for subjective statements about pain.” Further, plaintiff’s doctors attributed “his impairments to the collision. And [they] disabled him from work, driving, and recreational activities. Thus, a reasonable jury could find that the collision affected [his] ability to lead his normal life.”

Quiet title to undeveloped units in a condo project; The Michigan Condominium Act; MCL 559.167(3); Elizabeth Trace Condo Ass’n v American Global Enters, Inc; “Master deed” (MCL 559.108); MCL 559.166(2)(j) & (3); MCL 559.167(1); Amendment recording requirement; MCL 559.191

The court held that because defendant-McGrath did not comply with the Condominium Act’s requirements, MCL 559.167(3) operated to extinguish his rights to the property at issue “when the 10-year period expired, and his units remained unbuilt and not withdrawn.” Thus, it affirmed summary disposition for plaintiff-condominium association. The master deed recorded in 2005 “created 50 units and defined Units 1 through 4 as ‘must be built.’” An attached subdivision plan clarified that all remaining units “need not be built.” Defendant purchased Units 37 through 50. His attorney sent a letter to the development’s property manager, stating that the letter was to act “‘as confirmation that his units are designated "must be built," and therefore, can remain undeveloped after the 10 year anniversary date of commencement of construction.’” His units and several others “were never built, and no amendment to the master deed was ever recorded.” Plaintiff sued defendant to quiet title in 2023. The court held in Elizabeth Trace that “under the relevant version of MCL 559.167(3), ‘[i]f the developer of a condominium project (or its successors or assigns) does not withdraw the undeveloped “need not be built” units from the project within the specified 10-year time period, the land comprising those units becomes part of the project “as general common elements” and all rights to construction on that land cease.’” Thus, in this case, “after the 10-year period expired in 2015, the unbuilt units, by operation of law, ‘remained part of the project as general common elements, and all rights to construct upon that land ceased.’” While defendant sought to distinguish Elizabeth Trace, the court agreed with the trial court that his letter “was insufficient to convert [his] units from ‘need not be built’ to ‘must be built’ to escape the dictates of MCL 559.167(3), requiring that ‘need not be built’ units be constructed within 10 years of the commencement of construction.” There was “no evidence of any amendment of the master deed or subdivision plan to change defendant’s units from ‘need not be built’ to ‘must be built.’” The evidence of his “unilateral correspondence does not suffice to establish an amendment of the master deed or subdivision plan, let alone any official recording of such documents.”

Termination under § 19b(3)(c)(i); In re White; Reasonable reunification efforts; MCL 712A.13a(1)(d); In re Frey; Children’s best interests; In re Olive/Metts Minors

The court held that the DHHS made reasonable reunification efforts, that clear and convincing evidence supported termination under § (c)(i), and that termination of respondent-mother’s parental rights was in the children’s best interests. Before this case began, one of the children (MMJ) lived with his father and required 24-hour care because of significant medical and developmental needs. Then MMJ went into his grandmother’s care. The other child (MRB) lived with the mother until safety concerns led to MRB also being placed with the grandmother. The trial court later found jurisdiction because the mother had “abandoned” the children and suffered from “severe mental health and substance abuse issues.” After more than three years of noncompliance it terminated her parental rights. On appeal, the court held that the DHHS made reasonable efforts because it created a service plan with therapy, evaluations, drug screens, parenting classes, housing and income requirements, and visitation. It repeatedly attempted contact through “last known addresses, phone numbers, and relatives.” The court held that the mother, not the DHHS, was responsible for the lack of progress because she “never participated in any aspect of her case service plan” and failed to show that she “even tried to participate in or inform herself of the services being provided.” The court next held that the conditions of adjudication continued to exist because she failed to provide proper care or support and did not address her mental-health and substance-abuse issues despite ample “‘time to make changes and the opportunity to take advantage of a variety of services.’” It further held that termination was in the children’s best interests because the mother lacked a meaningful bond, failed to visit consistently, and could not provide the “care, permanency, stability, and finality” the children needed. Affirmed.

Termination under § 19b(3)(c)(i); In re Jackisch/Stamm-Jackisch; Reasonable reunification efforts; In re Atchley; Children’s best interests; In re MJC; In re Simpson

In this appeal involving two respondents-fathers (Martin and Hunt) and respondent-mother, the court held that (1) reasonable reunification efforts were made as to Martin, (2) termination of both Martin’s and Hunt’s parental rights was proper under § (c)(i), and (3) termination of all three respondents’ parental rights was in their children’s best interests. Thus, the court affirmed the termination orders. As to Martin’s reunification efforts argument, early in the proceedings, his three children “disclosed that they were subjected to physical abuse, sexual abuse, and neglect while in” his and the mother’s care. They also disclosed that “Martin was either the perpetrator of that abuse or had failed to protect them from that abuse by others. [They] were thereafter provided with extensive mental health services, including trauma assessments, psychiatric services, and trauma therapy. These assessments and services revealed that all three children had significant trauma from their time in” their parents’ care. They “eventually refused to attend any parenting times.” The court found that it was “clear that DHHS continually reviewed, updated, and revised [] Martin’s case service plan and made referrals to the necessary services to ensure that [he] had a meaningful opportunity to participate in parenting time with his children.” He failed to explain how “DHHS did not make reasonable efforts to facilitate parenting time, or what more DHHS could have reasonably done in that regard. And indeed, the children’s therapists made clear that forcing the children to attend parenting time would have been detrimental to their mental health and well-being.” The court also held that the evidence supported terminating both fathers’ parental rights under § (c)(i). The “totality of the record before the trial court supported its conclusion that clear and convincing evidence demonstrated that neither [] Martin nor [] Hunt had ‘accomplished meaningful change in the conditions that led to adjudication’ and that there was no reasonable likelihood that either of them would rectify those conditions within a reasonable time given the children’s ages.” Finally, the court rejected respondents’ challenges to the trial court’s best-interest findings. It concluded the record reflected “that the trial court properly weighed all the evidence available to it at the time that it made its” determination, and there was no clear error in its findings.