Skip to main content
A Better Partnership
September 24, 2009

MSC Order List: September 23, 2009

On September 23, 2009, the Michigan Supreme Court denied thirteen applications for leave to appeal. It vacated and remanded two criminal cases and one civil case. The Court granted one motion for immediate consideration and it also took substantive action in one criminal case and one civil case. These are discussed after the jump.

The Court held Plaintiff's Application for Leave to Appeal in abeyance in Fanning v. William Beaumont Hospital, No. 139502. It reasoned that its decision in the case of Holman v. Rasak, No. 137993, currently pending on appeal, could potentially resolve one of the issues the Plaintiff raised in the Application. Thus, it stayed proceedings in the trial court pending its consideration of the Application following its ruling in Holman. A copy of the Court's order can be found here.

In lieu of granting leave to appeal, the Court vacated and remanded the sentence of the Wayne County Circuit Court in People v. Goins, No. 138745. It reasoned that the circuit court had erred in its scoring of Offense Variable 13 as outlined in Section 43 of the Michigan Code of Criminal Procedure. MCL ' 777.43. Offense Variable 13 accounts for a criminal defendant's continuing pattern of criminal behavior. Under Section 43, a sentencing court may not consider contemporaneous felonious criminal acts when calculating Offense Variable 13, except where such offenses relate to the defendant's membership in an organized criminal group or are otherwise gang-related. MCL ' 777.43(2)(c). Although the court of appeals correctly determined that the circuit court's calculation of Variable 13 was improper; the Court found the court of appeals' alternate method of scoring also improper because it impermissibly included consideration of a contemporaneous felonious act. Therefore, with two justices dissenting, the Court vacated the sentence and remanded the case to the circuit court for re-sentencing. A copy of the Court's order is available here.

Likewise, it remanded a judgment to the court of appeals in People v. Lewis, No. 136622, after holding the Application to Appeal in abeyance pending the U.S. Supreme Court's decision in Melendez-Diaz v. Massachusetts, __ U.S. __, 129 S. Ct. 2527 (2009). The Court instructed the court of appeals to reconsider the defendant's Confrontation Clause, sufficiency of evidence and ineffective assistance issues in light of the U.S. Supreme Court's ruling in Melendez-Diaz. In all other respects, the Court denied the defendant's leave to appeal. A copy of the order can be found here.

The Court, in Buitendorp v. Swiss Valley, Inc., No. 138985, vacated the decision of the Workers' Compensation Appellate Commission, reasoning that it had employed an improper legal framework when determining whether the plaintiff's overall activities were work-related for purposes of receiving benefits. The Court opined that, pursuant to MCL ' 418.301(3) and Eversman v Concrete Cutting & Breaking, 463 Mich 86 (2000), the major purpose of the plaintiff's activity at the time of the injury should govern whether the social or recreational bar to receipt of benefits applies. Thus, it remanded the matter the Workers' Compensation Board of Magistrates for reconsideration, refusing to retain jurisdiction. A copy of the Court's order can be found here.

Finally, the Court issued an order reimbursing a criminal defense attorney for sanctions improperly issued by the court of appeals in People v. Murawa, No. 138842. Defense counsel failed to advise the defendant at sentencing of his right to appointed appellate counsel; however, the court later appointed appellate counsel to represent defendant. The appointed defense counsel complied with all relevant deadlines, including the six month deadline to file his post-judgment motion and one year from the date of appointment deadline to file an application for leave to appeal. Therefore, the Court determined that the sanctioned imposed were improper and it ordered the court of appeals to reimburse the defense counsel. A copy of this order can be found here.

NOTICE. Although we would like to hear from you, we cannot represent you until we know that doing so will not create a conflict of interest. Also, we cannot treat unsolicited information as confidential. Accordingly, please do not send us any information about any matter that may involve you until you receive a written statement from us that we represent you.

By clicking the ‘ACCEPT’ button, you agree that we may review any information you transmit to us. You recognize that our review of your information, even if you submitted it in a good faith effort to retain us, and even if you consider it confidential, does not preclude us from representing another client directly adverse to you, even in a matter where that information could and will be used against you.

Please click the ‘ACCEPT’ button if you understand and accept the foregoing statement and wish to proceed.

ACCEPTCANCEL

Text

+ -

Reset