MSC orders trial court to impose concurrent sentences or to articulate reasons for consecutive sentences at resentencing

In People v. Randazzo, No. 14352, the Michigan Supreme Court reversed in part the Court of Appeals’ judgment and remanded the case to the trial court. Defendant was convicted of three drug related offenses and the trial court ordered two of the sentences to be served concurrently, and one to be served consecutively without articulating the reasoning on the record. The Court of Appeals affirmed the trial court’s decision and defendant appealed. The Michigan Supreme Court vacated the sentences, and remanded the case instructing the trial court to impose concurrent sentences or express the reason for imposing consecutive sentences on the record.

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MSC grants mini-oral argument to consider appeal where defendant asserts that the trial court’s questioning of witnesses requires a new trial

In People v. Stevens, No. 149380, the Michigan Court of Appeals granted mini-oral argument to consider the defendant’s application for leave to appeal on the issue of when a trial court’s questioning of witnesses requires a new trial. The defendant was convicted of second-degree murder and first-degree child abuse stemming from the death of his three-month-old son, caused by head trauma. The Court of Appeals affirmed his conviction in April 2014, rejecting the defendant’s arguments that he was prejudiced by the trial court’s questioning of witnesses, that the court gave an improper instruction to the jury, that the court improperly admitted evidence of similar acts of domestic violence, and that the court improperly scored his sentencing guidelines. The Michigan Supreme Court granted mini-oral argument on the application for leave to appeal. It ordered the parties to brief the standard for determining whether the trial court’s questioning of witnesses requires a new trial.
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MSC remands two cases for Ginther hearings where defense counsel failed to call eyewitness to homicide

The Michigan Supreme Court remanded as on leave granted for two more criminal defendants on ineffective assistance of counsel grounds. In People v. Scott, No. 148324, the defendant was convicted of felony murder and felony firearm and sentenced to life in prison. The Michigan Supreme Court directed the trial court to consider, after a Ginther hearing, whether trial counsel was constitutionally ineffective for failing to call an eyewitness to the homicide, whether the defendant is entitled to a new trial because of newly discovered evidence related to the witness’s testimony, and whether appellate counsel was constitutionally ineffective for failing to raise the preceding issues on direct appeal.
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COA finds that affidavit was insufficient to void foreclosure of a mortgage where that affidavit was based on legal precedent that was valid at the time of the affidavit, but later overturned

In Trademark Properties v. Federal National Mortgage Association, No. 313296, the Court of Appeals evaluated the ability of a party to undo a foreclosure sale and revive a mortgage. In 2003, Earl Strickfaden purchased a condo, with the mortgage first held by GMAC Mortgage Corporation (GMAC), and then by Mortgage Electronic Registration Systems, Inc. (MERS). Strickfaden defaulted; MERS foreclosed; Fannie Mae purchased the property at a sheriff’s sale. Then, Manor Homes of Troy Association (MHTA) filed a lien on the property for unpaid association dues. MHTA foreclosed; Trademark Properties (Trademark) purchased the property at a sheriff’s sale.

During the redemption period following MHTA’s foreclosure, GMAC filed an affidavit to expunge the first sheriff’s sale to Fannie Mae. GMAC argued that the sale was void ab initio and that the MERS mortgage was revived. The trial court agreed, referring to Residential Funding Co. v. Saurman, 807 N.W.2d 412 (Mich. Ct. App. 2011). In Saurman, a party had attempted to foreclose on a property by advertisement, but the Michigan Court of Appeals held that the party could not foreclose because it was merely a mortgagee, and not a noteholder. As such, party had no “interest in the indebtedness secured by the mortgage” under the foreclosure by advertisement requirements in MCL 600.3204(1)(d). Such foreclosure proceedings in Saurman were, therefore, void ab initio.

At the time GMAC filed its affidavit, Saurman was still controlling authority, and because MERS was a also a mortgagee, the precedent would have applied. The Michigan Supreme Court, however, reversed Saurman and held that a security lienholder has the requisite interest in the indebtedness on a property to foreclose by advertisement. Residential Funding Co. v. Saurman, 805 N.W.2d 183 (Mich. 2011). Thus, the Court of Appeals held the position that the MERS mortgage was revived was no longer sustainable and concluded that even though affidavit had been filed while Saurman was still effective, the affidavit itself had no effect on the validity of the MERS foreclosure sale. Read More

MSC remands for Ginther hearing where defense counsel failed to inform client of plea offer

In People v. Walker, No. 145433, the Michigan Supreme Court remanded to the trial court for a Ginther hearing, after it had been held in abeyance pending the Supreme Court’s decision over a year ago in Burt v. Titlow, 133 S. Ct. 1457 (2013), which was ultimately decided on unrelated grounds. The defendant was convicted of first-degree murder and sentenced to life in prison. He alleged that his trial counsel was ineffective because he failed to inform him of an offer of a plea offer of second-degree murder with a 25 to 50 year prison sentence.
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COA holds that court erred by failing to provide simultaneous translation for defendant

In People v. Elias Gonzalez-Raymundo, Nos. 316744, 319718, The Michigan Court of Appeals held that the trial court erred by failing to provide a simultaneous interpreter where defense counsel requested that the interpreter “catch up” the defendant during breaks because of possible jury prejudice against Spanish speakers. The defendant was charged with five counts of third-degree criminal sexual conduct, MCL 750.520d(1)(a), stemming from a sexual relationship with a 13-year-old step-nephew. At trial, defense counsel requested that the defense be allowed to waive simultaneous interpretation and allow the interpreter to explain things to the defendant after the fact. The defendant, who several people testified “barely spoke any English,” never made a statement agreeing to this arrangement on the record. The jury convicted the defendant on four counts and acquitted on the fifth.
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Cadaver dog evidence admissible under MRE 702

In People v. Lane, No. 313818, the Michigan Court of Appeals affirmed the defendant’s convictions for first-degree felony murder and first-degree child abuse. Defendant raised a number of issues on appeal.  The most important issue for criminal practitioners is defendant’s argument that evidence that the cadaver dog “hit” on the defendant’s car, as well as the victim’s car seat and blanket, was admissible under MRE 702.  The Court of Appeals held that the lack of a scientific test to verify a scent, in this case of the victim’s decomposed body, is not a reason to exclude evidence discovered by the use of a cadaver dog.
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COA holds that bare hands are not a weapon for purposes of Michigan sentencing guidelines

In People v. Hutcheson, No. 313177, the Michigan Court of Appeals held that bare hands are not weapons under offense variable (“OV”) 1 and 2 of the sentencing guidelines. The defendant pleaded guilty to attempted assault with intent to commit criminal sexual conduct, MCL 750.520g(1), stemming from an incident when he punched his girlfriend after she refused to have sex with him. The trial court assessed 10 points under OV 1 for the use of a weapon. It also assessed one point under OV 2 for use of a potentially lethal weapon.  The Court of Appeals held that hands do not qualify as a weapon under the sentencing guidelines because other criminal statutes define a weapon as an “article or instrument . . . used . . . for bodily assault or defense.” Because hands are not separate from the body, they do not qualify as an article or instrument. Further, the Court of Appeals had previously rejected the argument that hands or teeth were weapons in the felonious assault context. Since the defendant’s hands were not weapons, points should not have been assessed under either OV 1 or OV 2, and the court remanded for resentencing.

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COA affirms validity of an express exclusive easement appurtenant

In Penrose v. McCullough, No. 316435, the Michigan Court of Appeals held that an express, exclusive easement was valid because it ran with the land, and because the subsequent purchasers of the servient estate had constructive notice of the easement. Three parcels located in a subdivision in South Haven, lots 9, 10, and 11, were once owned by the same couple, but they sold one of the parcels. After the sale, the buyers attempted to grant the sellers an easement over another parcel they already owned, lot 6. The buyers and sellers both eventually sold their properties to other people. The court held that the easement failed as to one of the lots because the original buyers identified the grantee as “the title holder of Lots 9, 10, and 11” after they had already purchased lot 11. Common ownership of the parcel subject to the easement and the easement therefore extinguished the easement. Read More

COA recognizes that a mutual mistake of fact, though discoverable, is grounds for reforming a divorce decree

In Wolf v. Mahar, No. 310479, the Court of Appeals held that a mutual mistake of fact about the State of Michigan’s pension recoupment policy was sufficient to order reformation of a divorce judgment, despite the policy being easily available online. Read More
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