e-Journal Summary

e-Journal Number : 47383
Opinion Date : 11/18/2010
e-Journal Date : 12/01/2010
Court : Michigan Court of Appeals
Case Name : Mayes v. Livingston
Practice Area(s) : Litigation, Personal Protection Orders
Judge(s) : Per Curiam - Cavanagh, Hoekstra, and Gleicher
Full Text Opinion

PPO; Criminal contempt; MCL 600.2950; DeGeorge v. Warheit; Whether the defendant was denied counsel; People v. Frazier; Whether defendant's due process rights were violated; In re Contempt of Henry; In re Contempt of Dougherty; In re Contempt of Dudzinski; MCR 3.708(F); MCL 764.15b; Mead v. Batchlor; Whether the errors were harmless; Prejudice; People v. McGee; Neder v. United States; Public Defender's Office (PDO)


Based on the record, the court held that the defendant's due process rights were violated, the several errors were not harmless, they were clearly prejudicial, and the complete denial of counsel was a structural defect that defied harmless error analysis. Thus, the court vacated the trial court's order finding him guilty of criminal contempt for violating a PPO and vacated his sentence. In January 2008, the trial court entered an ex parte domestic relationship PPO against defendant at the request of the petitioner who had children with him. On January 28, 2008, he filed a petition to terminate the ex parte PPO. Defendant contended that petitioner's request for the PPO was an attempt to gain an advantage in their ongoing acrimonious custody battle because on January 10, 2008, he obtained an ex parte custody determination in Ohio that awarded him parenting time with his two children. He argued that the PPO issued against him required supervised visitations with his children, which contradicted the Ohio court's order granting him a particular parenting time schedule. A hearing was held and the trial court noted because of the allegations by the mother that defendant had lost custody of an older daughter (whose mother was not petitioner) it was concerned about the welfare of the two children at issue. The trial court then issued an order modifying the PPO to allow defendant unsupervised parenting time with one child and set a hearing for the next month as to his parenting time with the other child. The hearing was continued and the trial court concluded the petitioner's allegations were unsubstantiated, but that the PPO would not be changed as to defendant's parenting time. In July 2008, petitioner alleged that defendant violated the PPO by coming to her house and requested defendant be ordered to appear and answer the contempt charge. The trial court ordered defendant to appear to show cause why he should not be held in contempt for violating the PPO, and appointed counsel for him. The attorney filed an appearance. Before defendant received notice of the appointment of counsel, he moved for an order allowing him to appear by telephone, because he was indigent and lived in Ohio. On August 21, the trial court held the show cause hearing as to the PPO violation, a different attorney from the PDO appeared for him, but defendant did not appear. The trial court held that he could not appear by telephone and excused the new attorney from the hearing. The trial court heard testimony from the petitioner, admitted her evidence, and took the matter under advisement. Later the trial court entered an order concluding defendant violated the PPO and a sentencing hearing was set. An attorney from the PDO appeared for defendant. The trial court issued a bench warrant for him because he failed to appear for sentencing. He was later arrested and jailed, where he remained until January 22, 2009. An attorney from the PDO appeared, told the trial court defendant had been in jail for almost three months, was "unclear" as to why, but in the interim lost his job, may have lost his house, and lost his schooling for the fall. Defendant personally addressed the court and said the PDO attorney was not his attorney and had not communicated with him. The trial court appointed new counsel and told defendant he could not have a new trial because he failed to appear at the earlier hearing. The sentencing hearing was continued and a new attorney said she wanted to preserve defendant's issues for appeal, including that he still contested the validity of the original PPO. On appeal he argued his due process rights were violated by the trial court's failure to provide him proper notice of the charge, to provide him with the effective assistance of counsel, and to provide him the opportunity to present and confront the witnesses against him. The court agreed and stated that the violation of a PPO under ยง 2950 is criminal and a criminal contempt proceeding requires some of the due process safeguards of an ordinary criminal trial. The court held that it was evident that defendant's due process rights were violated.

Full Text Opinion