Sentencing credit; MCL 769.11b; People v Idziak; People v Prieskorn; People v Adkins; People v Givans; People v Allen; Ineffective assistance of counsel; Failure to promptly move to revoke defendant’s bond; Prejudice; Whether the trial court had discretion to award defendant additional jail credit; People v Lewis (Unpub); Court costs & attorney fees; MCL 769.1k; People v Konopka (On Remand)

The court held that the trial court did not err in awarding defendant only 57 days of sentencing credit. But it did err in failing to provide a factual basis for the court costs and attorney fees it imposed, and in not articulating a determination as to his “ability to pay his attorney fees and any attendant late penalty.” As to sentence credit, the parties disagreed “on the meaning of MCL 769.11b.” The court agreed with the prosecution. “MCL 769.11b uses the term ‘because of’ to connect the words ‘has served any time in jail prior to sentencing’ and the words ‘being denied or unable to furnish bond for the offense of which he is convicted.’ Thus, to be entitled to jail credit, it is not sufficient that the defendant has served time in jail and was denied/unable to furnish bond for the offense at hand. Rather, the time in jail must be served ‘because of’ the fact that the defendant was denied/unable to furnish bond for the offense at hand. Once a defendant has started serving a sentence on a different case, the serving of that sentence becomes the reason that he is being incarcerated. His bond status on the subsequent case becomes irrelevant—regardless of whether the trial court properly updated paperwork to indicate that bond no longer is an option, and regardless of whether the defendant has the financial means to post a hypothetical bond for release, as the defendant then is actively serving time on a sentence in an unrelated case.” As a result, “pursuant to MCL 769.11b, defendant only was entitled to 57 days of jail credit, representing the time between his” 8/9/22 arrest in this case, and his 10/4/22 “sentencing in the separate probation-violation case.” As to his claim that defense counsel was ineffective for failing to timely seek revocation of his bond in this case, the court agreed with the trial court that he could not establish prejudice. Revoking his bond “would not have satisfied the second statutory requirement” for MCL 769.11b to apply. As to his arguments related to costs, the court concluded “the trial court did not err by failing to waive court costs.” But it erred in other respects. On remand, it “should articulate a factual basis for both the court costs and the attorney fees[,]” and also adjudicate his “‘claim that his individual circumstances rebut § 1l’s presumption of nonindigency’” as to his remittance payments for his attorney fees. Affirmed in part, vacated in part, and remanded.

CSC II sentencing departure; Reasonableness; Proportionality; People v Steanhouse; People v Dixon-Bey; Uncharged conduct; People v Beck; Inaccurate information; Remorse; Abuse of authority; OV 7; Victim exploitation; People v Nantelle; Exercise of the right to jury trial; People v Wesley

The court held that the trial court did not abuse its discretion by departing upward from the guidelines and again sentencing defendant to concurrent terms of 7 to 15 years for two CSC II convictions after remand for resentencing. Defendant, a former priest, was convicted for sexually abusing a 14-year-old victim in 1984. After remand for resentencing due to a scoring error, the trial court departed upward from the corrected 12-to-36-month guidelines range. The court first held that the trial court properly considered uncharged conduct because Beck bars use of acquitted conduct, not uncharged conduct, and trial testimony suggested defendant abused another minor. The court reasoned that the trial court did not err by inferring more victims from evidence that defendant targeted “a vulnerable part of society.” The court next rejected defendant’s inaccurate-information claim because the trial court’s statement that he abused the victim for “several years” reasonably referred to grooming and exploitation before the charged assault. The court also held that the trial court could consider defendant’s lack of remorse, noting it found his allocution unconvincing because he previously “blamed the victim” and claimed anti-Catholic bias. The court further held that the trial court properly considered defendant’s abuse of authority despite that factor being part of the CSC II statute under which he was convicted because the guidelines did not adequately reflect his “‘extraordinary and egregious abuse of authority’” as a priest. Finally, the court held that the sentence was not punishment for exercising the right to trial because the challenged remarks addressed the “observable severity” of the victim’s psychological injury, not defendant’s refusal to plead guilty. Affirmed.

Ineffective assistance of counsel; Failure to secure an expert witness & to introduce a statement by the victim; Trial strategy; Sentencing; Proportionality; Presumption as to a within-guidelines sentence; People v Posey; Unusual circumstances; Cruel &/or unusual punishment; People v Burkett; Jail credit; MCL 769.11b; People v Idziak

The court held that defendant’s trial counsel was not ineffective for failing to secure an expert witness and to introduce a statement by the victim at trial. It also rejected defendant’s proportionality and cruel and/or unusual punishment challenges to his sentence, and held that he was not entitled to additional jail credit. He was convicted of second-degree murder and sentenced as a fourth-offense habitual offender to 50 to 80 years. As to the expert issue, the “trial court concluded that trial counsel exercised reasonable due diligence and his failure to retain an expert did not fall below an objective standard of reasonableness.” The court agreed. The record showed “trial counsel reasonably investigated the facts at issue in determining whether to call an expert to testify and made multiple attempts to obtain an expert, including consulting a list and reaching out to other doctors for recommendations of potential experts. He spoke with several doctors before retaining” one, and after that arrangement “fell through, he made further efforts to retain” another. While the timing of his efforts “may not have been ideal,” the court “will not second-guess matters of trial strategy or ‘assess counsel’s competence with the benefit of hindsight.’” And while defendant faulted “trial counsel’s focus on causation to the exclusion of mens rea,” the court noted that he “clearly did not abandon the mens rea element at trial.” The trial court in the bench trial found other witnesses “credible and defendant’s version of events lacked credibility and thus concluded that the mens rea element was satisfied.” As to the victim’s statement, the trial court determined that it “‘ultimately supported the prosecution’s theory that’” defendant assaulted her and “‘the medical evidence corroborated’” that a very serious assault occurred. Thus, the trial court found that the decision not to seek its admission did not fall below an objective standard of reasonableness. The court agreed. Even assuming the “statement was admissible, trial counsel reasonably determined that its admission would be more prejudicial than probative.” As to the sentence, the factors defendant cited did not constitute unusual circumstances rebutting the presumptive proportionality of his within-guidelines sentence. And because it “did not violate the principle of proportionality,” it was not unconstitutionally cruel or unusual. Affirmed.

Sentencing; Scoring of OV 11; MCL 777.41(1)(b) & (2)(a); Presumptive proportionality of a within-guidelines sentence; People v Posey; People v Ventour

Holding that the trial court did not err in scoring 25 points for OV 11 and that defendant failed to overcome the presumption that his within-guidelines sentence was proportionate, the court affirmed. He was convicted of CSC II and sentenced to 84 to 180 months. He first argued on appeal that the trial court erred in scoring OV 11. It determined that OV “should be scored at 25 points based on defendant’s conduct during” an incident referred to as “the camper incident, which included both the sentencing offense and the digital penetration of the victim. [It] found that the PSIR’s description of the sentencing offense established, by a preponderance of the evidence, that that incident was ‘one transaction with multiple events within’ it and not ‘separate transactions over a period of time,’ and so defendant’s digital penetration of the victim in the camper arose from the sentencing offense.” The court did not find any “reversible error in the trial court’s finding that the camper incident was a single transaction comprising both defendant’s sentencing offense and his penetration of the victim, as a preponderance of the evidence, along with the reasonable inferences drawn therefrom, supported such a finding.” It concluded that defendant offered “nothing in the record to substantiate his position that the offense he pleaded to and was sentenced for was based on” an incident referred to as “the tire-stack incident, and not the camper incident. Nothing about [his] guilty plea itself suggested as much, nor does any other part of the record.” As to his proportionality argument, he failed to identify—and the court did “not see—any ‘unusual circumstances’ related to himself or the sentencing offense ‘that would render [his] presumptively proportionate sentence disproportionate.’”

Due process; Brady v Maryland violation; Materiality; People v Christian; Ineffective assistance of counsel; Failure to investigate; Vouching testimony; Failure to impeach; Expert testimony; Denial of Ginther hearing request; Sentencing; OV 7; MCL 777.37(1)(a); Sadism; Torture; People v Lydic; People v Alexander

The court held that defendant was not entitled to a new trial, a Ginther hearing, or resentencing after his torture conviction. Defendant argued that the prosecution suppressed favorable evidence that the cottage owner saw the victim act angry and block defendant’s path after the assault, but the court held the evidence was not material under Brady. It reasoned that defendant made “no meaningful argument” showing a reasonable probability of a different result, particularly where the victim’s account was supported by photographs and testimony from the cottage owner, deputy, and ex-boyfriend that she was “visibly injured and distraught.” The court next held that defendant failed to establish ineffective assistance based on counsel’s failure to interview or call the cottage owners because the prosecution’s evidence was “overwhelming,” counsel had already impeached the victim, and the omitted evidence did not undermine confidence in the verdict. It also rejected the vouching claim because the deputy’s use of “assault” described his perception of photographed injuries and did not “purport to vouch for the victim’s credibility.” The court further held that counsel’s impeachment strategy was reasonable because it focused on the victim’s intoxication to support defendant’s theory that she fell while drunk, and defendant failed to identify any expert who would have testified favorably about hallucinogenic mushrooms. Finally, the court upheld the 50-point OV 7 score because defendant’s death threats, humiliation, confinement, hair-dragging, and lies that no one could save the victim showed “sadism” or conduct “similarly egregious” that substantially increased her fear and anxiety. Affirmed.

Default judgment of divorce; Motion to set aside default; MCR 3.210(B); Good cause; Koy v Koy; Property division; Sparks v Sparks; Defaulted party participation; Established custodial environment (ECE); MCL 722.27(1)(c); Kessler v Kessler; Sabatine v Sabatine; Best interests; MCL 722.23; Kuebler v Kuebler

The court held that the trial court did not abuse its discretion by denying defendant-husband’s motion to set aside the default or by dividing the marital property, but erred by awarding plaintiff-wife sole custody without making required custody findings. Defendant moved to Turkey before plaintiff filed for divorce and later sought to set aside the default based on unspecified psychological conditions. The court first held that defendant failed to show good cause under MCR 3.210(B) because he did not identify a diagnosis, provide documentation, or explain how his condition prevented participation, and the trial court found “[t]here is nothing that’s been presented to the Court” establishing his alleged issues. The court next held that the property division was equitable despite limited findings because the record showed defendant sold clinics for about $2,000,000, took about $575,000 when he left the country, provided no support, and left plaintiff and the children with “no resources.” The court reasoned that awarding plaintiff the marital home compensated her for her share of the unavailable business-sale proceeds, and it was not left with a firm conviction that the division was inequitable. But the court vacated the custody ruling because the trial court did not first determine whether ECE existed. The court held this was “clear error” because a trial court must make that determination before any custody decision, and on remand it must consider up-to-date information and make best-interest findings under MCL 722.23. Affirmed in part, vacated in part, and remanded.

The International Child Abduction Remedies Act (ICARA); The “age & maturity exception” to the requirement that a court order a wrongfully removed child’s return; The Hague Convention on the Civil Aspects of International Child Abduction; Whether the child “expressed particularized objections” to his return during his in camera interview with the district court; Whether the child’s preference was due to “the abductor parent’s undue influence”

The court held that the district court properly applied the “age and maturity exception” to the ICARA’s requirement to order the return of a wrongfully removed child where it interviewed the child and concluded that he was “mature enough to have an informed view about his return to Finland and to his father[,]” and that he had “expressed particularized objections” to his return. Defendant-Owusu removed her son B.B. from Finland, violating her ex-husband’s (plaintiff-Boa-Bonsu) custody rights. He filed a petition under the ICARA in federal court in Ohio, where B.B. was located. The parents were married and lived in Finland when B.B. was born. They later divorced and received joint custody in the Finnish courts. B.B. was eight years old at the time of the district court proceedings. In those proceedings, when B.B. was interviewed in camera, he expressed unhappiness about spending time at his father’s house, and a desire not to return to Finland, stating that he did not know how to speak the language anymore and that he wanted to stay with his unborn sibling (his mother was pregnant). The district court ruled that B.B. had been “wrongfully removed” from Finland, which was his habitual residence, and that Boa-Bonsu still retained and had exercised his joint-custody rights. But it found that B.B. should not be returned under the Hague Convention’s age and maturity exception. On appeal, the court noted “there is no age cutoff below which a child may not, as a matter of law, be considered mature.” Thus, the district court was entitled to rely on its own observations during the in camera interview and did not clearly err by concluding that he was “mature enough to have an informed view about” being returned. As to the objection requirement, under the Hague Convention courts have generally required that “a child’s objection consist of more than a mere preference to remain in the country of removal.” The court agreed that more was required and held that the district court did not clearly err “in finding that B.B. expressed particularized objections to his return as opposed to a general preference to remain in the United States.” It also declined to disturb the district court’s finding that Owusu’s influence “did ‘not rise to the level of undue influence that would render B.B.’s objections unreliable.’” It affirmed the district court’s denial of Boa-Bonsu’s petition.

The International Child Abduction Remedies Act (ICARA); The “age & maturity exception” to the requirement that a court order a wrongfully removed child’s return; The Hague Convention on the Civil Aspects of International Child Abduction; Whether the child “expressed particularized objections” to his return during his in camera interview with the district court; Whether the child’s preference was due to “the abductor parent’s undue influence”

The court held that the district court properly applied the “age and maturity exception” to the ICARA’s requirement to order the return of a wrongfully removed child where it interviewed the child and concluded that he was “mature enough to have an informed view about his return to Finland and to his father[,]” and that he had “expressed particularized objections” to his return. Defendant-Owusu removed her son B.B. from Finland, violating her ex-husband’s (plaintiff-Boa-Bonsu) custody rights. He filed a petition under the ICARA in federal court in Ohio, where B.B. was located. The parents were married and lived in Finland when B.B. was born. They later divorced and received joint custody in the Finnish courts. B.B. was eight years old at the time of the district court proceedings. In those proceedings, when B.B. was interviewed in camera, he expressed unhappiness about spending time at his father’s house, and a desire not to return to Finland, stating that he did not know how to speak the language anymore and that he wanted to stay with his unborn sibling (his mother was pregnant). The district court ruled that B.B. had been “wrongfully removed” from Finland, which was his habitual residence, and that Boa-Bonsu still retained and had exercised his joint-custody rights. But it found that B.B. should not be returned under the Hague Convention’s age and maturity exception. On appeal, the court noted “there is no age cutoff below which a child may not, as a matter of law, be considered mature.” Thus, the district court was entitled to rely on its own observations during the in camera interview and did not clearly err by concluding that he was “mature enough to have an informed view about” being returned. As to the objection requirement, under the Hague Convention courts have generally required that “a child’s objection consist of more than a mere preference to remain in the country of removal.” The court agreed that more was required and held that the district court did not clearly err “in finding that B.B. expressed particularized objections to his return as opposed to a general preference to remain in the United States.” It also declined to disturb the district court’s finding that Owusu’s influence “did ‘not rise to the level of undue influence that would render B.B.’s objections unreliable.’” It affirmed the district court’s denial of Boa-Bonsu’s petition.

Enforcement of a scheduling order & rejection of a nonconforming response brief; Cleveland v Hath; Grant of an unopposed summary disposition motion; Ordering dismissal as a sanction; Tolas Oil & Gas Exploration Co v Bach Servs & Mfg, LLC; Summary disposition under MCR 2.116(C)(10)

The court held that the trial court did not abuse its discretion in enforcing its scheduling order and rejecting plaintiff’s nonconforming response brief. But it held that the trial court’s grant of defendant’s summary disposition motion “lacked an adequate basis—either as a proper merits resolution of defendant’s unopposed motion under MCR 2.116(C)(10), or as a duly justified sanction for plaintiff’s failure to file a conforming response to that motion.” Thus, the court vacated the summary disposition award and remanded. The case concerned a premises liability claim. Defendant filed a renewed motion for summary disposition under MCR 2.116(C)(10). Plaintiff tried to file a response, but the trial court rejected it for failing to comply with the scheduling order’s requirements. The trial court then granted defendant’s motion and dismissed the complaint. As in its recent decision in Cleveland, the court did not “see an abuse of discretion in the trial court’s decision to enforce its own scheduling order and reject plaintiff’s response. There” was no dispute that plaintiff’s response to defendant’s motion did not conform with the requirements of the trial “court’s order, and the order made clear such noncompliance would result in the rejection of that response.” The court “has previously found no abuse of discretion in a court enforcing requirements and consequences of that sort, and” it did not see any “reason to conclude otherwise here.” But while the trial court did not err in treating the motion as unopposed, that did not mean its decision to grant it “and dismiss the case was necessarily proper. [Its] dismissal order appears to identify two potentially distinct bases for that decision: (1) that [it] was ‘enter[ing] judgment against Plaintiff for failing to follow’ its scheduling order, and (2) that summary disposition was being granted ‘under MCR 2.116(C)(10).’” The court found “neither basis adequate to support” the dismissal order. As to the former, the order reflected “none of the requisite analysis of whether dismissal would be appropriate as a sanction for plaintiff’s failure to timely file a conforming response to defendant’s motion.” As to the latter, the court saw no “grounds to affirm the ruling under MCR 2.116(C)(10), as the trial court failed to duly consider whether defendant’s motion, when taken as unopposed, was adequate to” establish that it was entitled to such relief.

Medical malpractice; Vicarious liability; Ostensible agency; Hospital emergency room; Teleradiologist; Grewe v Mt Clemens Gen Hosp; Markel v William Beaumont Hosp; Summary disposition; Affidavit; Bakeman v Citizens Ins Co of the Midwest

The court held that there was a genuine issue of material fact whether a remote teleradiologist was defendant-hospital’s ostensible agent, and therefore summary disposition on vicarious liability was improper. Plaintiffs took their 14-month-old child to defendant’s emergency department, where a CT scan was performed and interpreted remotely by a pediatric teleradiologist working from California for a company contracted by defendant. The court first held that plaintiffs presented evidence supporting a reasonable belief in agency because they came to defendant’s emergency room, had no prior relationship with the hospital staff or treating physicians, and plaintiff-mother believed “all individuals involved in the CT scan,” including the radiologist, were hospital employees. Relying on Markel, the court reasoned this was sufficient “to create a question of fact as to ostensible agency.” The court next held that defendant did not establish it dispelled that belief because there was no evidence plaintiffs knew of defendant’s remote-radiology contract, and “the mere existence of the agreement” did not rebut plaintiffs’ reasonable belief. The court rejected defendant’s argument that ostensible agency required direct personal interaction with the physician, explaining that no binding authority requires the doctor to “be on site or have ‘some personal interaction’ with” the patient. Finally, it rejected defendant’s request to disregard the mother’s affidavit because there was no “direct conflict” between it and her deposition testimony. Reversed and remanded.

Medical malpractice; Vicarious liability; Ostensible agency; Hospital emergency room; Teleradiologist; Grewe v Mt Clemens Gen Hosp; Markel v William Beaumont Hosp; Summary disposition; Affidavit; Bakeman v Citizens Ins Co of the Midwest

The court held that there was a genuine issue of material fact whether a remote teleradiologist was defendant-hospital’s ostensible agent, and therefore summary disposition on vicarious liability was improper. Plaintiffs took their 14-month-old child to defendant’s emergency department, where a CT scan was performed and interpreted remotely by a pediatric teleradiologist working from California for a company contracted by defendant. The court first held that plaintiffs presented evidence supporting a reasonable belief in agency because they came to defendant’s emergency room, had no prior relationship with the hospital staff or treating physicians, and plaintiff-mother believed “all individuals involved in the CT scan,” including the radiologist, were hospital employees. Relying on Markel, the court reasoned this was sufficient “to create a question of fact as to ostensible agency.” The court next held that defendant did not establish it dispelled that belief because there was no evidence plaintiffs knew of defendant’s remote-radiology contract, and “the mere existence of the agreement” did not rebut plaintiffs’ reasonable belief. The court rejected defendant’s argument that ostensible agency required direct personal interaction with the physician, explaining that no binding authority requires the doctor to “be on site or have ‘some personal interaction’ with” the patient. Finally, it rejected defendant’s request to disregard the mother’s affidavit because there was no “direct conflict” between it and her deposition testimony. Reversed and remanded.

Child protective proceedings; Removal order; Temporary wardship; Return of child to parent; Mootness; Gleason v Kincaid; Exceptions; In re Detmer/Beaudry

The court held that respondent-mother’s appeal from the order removing the child from her care was moot. The trial court initially removed the child and placed him in a temporary wardship with his legal father, but while the appeal was pending, it terminated the wardship, returned the child to respondent’s care, and closed the case after an adjudication trial. The court reasoned that an issue is moot when “‘a subsequent event makes it impossible for this Court to grant relief,’” and the only relief respondent sought was return of the child to her care. Because that relief “has already occurred,” the court had no remedy left to provide. It also held that no mootness exception applied because respondent identified no public-significance, recurrence-yet-evasion, or collateral-consequences basis for reaching the merits despite being invited to brief mootness. Dismissed.

Termination at the initial disposition; MCL 712A.19a(2)(c); §§ 19b(3)(c)(i), (i), & (j); Children’s best interests; Reasonable reunification efforts; Accommodations under In re Hicks/Brown

In these consolidated appeals, the court held as to respondent-father that the trial court did not clearly err in finding §§ (i) and (j) were established and in terminating his parental rights at the initial disposition. As to respondent-mother, the trial court did not clearly err in finding the DHHS made reasonable reunification efforts and accommodations, or in concluding that § (c)(i) was established. It also did not clearly err in determining that terminating both respondents’ rights was in the children’s best interests. As to the father, the trial court properly concluded “that reasonable efforts were not required” in light of the prior “termination of rights to his other child and his failure to rectify the conditions that led to that termination.” As to statutory grounds, it “did not clearly err by finding that [his] parental rights had been terminated to [one child’s] siblings under circumstances that may be characterized as ‘serious and chronic neglect or physical or sexual abuse,’ and that he had failed to rectify the conditions that led to those terminations.” Further, respondent “had a significant history of substance abuse and domestic violence.” While he obtained employment and housing, there was “no indication that he had addressed his anger issues.” As to the mother, the DHHS twice referred her to supportive visitation, but she did not participate. She “completed some counseling and other services before she was incarcerated, as well as at least some parenting education. Had [she] completed her second psychological evaluation, however, or consistent counseling” she may have obtained the added services she identified at trial to help her with one child’s special needs. As to statutory grounds, the court held that “the trial court did not clearly err by finding that the conditions that led to the adjudication continued to exist.” Further, given her “limited participation in services and progress, the trial court did not clearly err by finding that [she] would not rectify the conditions that led to adjudication in a reasonable time.” Affirmed.