Sentencing; Acquitted conduct; People v Beck; Rational-jury approach; People v Brown; Assault with intent to commit CSC; MCL 750.520g(1); Felonious assault; MCL 750.82; Unlawful imprisonment; MCL 750.349b

The court held that the trial court did not rely on acquitted conduct when sentencing defendant for unlawful imprisonment and felonious assault. Defendant approached the victim in a grocery-store parking lot while carrying a knife and ordered her to get out of her vehicle, but the jury acquitted him of assault with intent to commit CSC involving sexual penetration. On appeal, the court rejected defendant’s argument that the sentencing court improperly found that he intended to commit a sexual assault, explaining that intent was relevant to both the acquitted charge and the felonious assault charge, and that a categorical bar on any overlapping fact would produce “absurd results.” Applying the rational-jury approach from Brown, the court held that the sentencing court would have violated Beck only if it found “defendant acted ‘with the intent to commit CSC involving sexual penetration,’ or language to” this effect, but the record did not show that it did so. Instead, it considered defendant’s explanation that he intended to steal the truck, cut his tether, and leave the state, and “took him at his word” that his intent “wasn’t to commit a sexual assault in that case.” The court also held that the trial court could consider defendant’s prior sexual-assault convictions because sentencing courts may consider prior offenses and tailor a sentence to “‘the particular circumstances of the case and offender.’” Finally, the court noted that defendant himself requested behavioral-remodification programming and that his within-guidelines sentence further supported that the trial court did not rely on acquitted conduct. Affirmed.

Waiver of jury instruction challenge; Ineffective assistance of counsel; Failure to request a specific unanimity instruction; People v Chelmicki; People v Cooks; Felonious assault; People v Avant

Holding that defendant waived any jury instruction challenge and that defense counsel was not ineffective for failing to request a specific unanimity instruction, the court affirmed her felonious assault conviction. The “proposed jury instructions included a general unanimity instruction, but not a specific unanimity instruction, and the trial court twice asked defense counsel if the defense had any objections to the instructions.” Defense counsel raised an issue about circumstantial evidence, but “did not request a specific unanimity instruction, and he initialed the final instructions before the court read them to the jury. Objecting to another instruction is insufficient to preserve the special unanimity instruction on appeal.” As to her claim that defense counsel was ineffective for not requesting the instruction, she failed to show “the prosecution presented more than one act as evidence of the actus reus of her single criminal offense such that she would have been entitled to a specific unanimity instruction.” The focus of the prosecution’s evidence and argument was on a boxcutter “that defendant used to threaten” victim-H, a specific count. There was testimony that defendant later had a butcher knife, but “that occurred in response to the arrival of [H’s] husband and was directed as much at him, not at [H] alone as stated in the charging document and argued.” And in instructing the jury on the meaning of a “dangerous weapon,” the trial court only referenced the boxcutter, with “no mention of a butcher knife.” Further, the defense witnesses, including defendant, testified that she never had a weapon, and she testified that she did not threaten H or another individual. She maintained this defense on appeal. “In such circumstances, where the jury is making a credibility determination, a defendant is not entitled to a specific unanimity instruction.” Because there was insufficient evidence the instruction would have applied, defense counsel was not ineffective.

Jury instructions; Specific unanimity instruction; People v Cooks; Waiver; Ineffective assistance of counsel; Domestic violence; MCL 750.81(2); Continuous course of conduct; Felonious assault; MCL 750.82

The court held that defendant waived his instructional-error claim and was not denied the effective assistance of counsel by counsel’s failure to request a specific unanimity instruction for the domestic-violence charge. He was convicted of misdemeanor domestic violence after testimony showed that, during an argument with his longtime girlfriend, he hit her hip with a vehicle, shoved her out of the vehicle, and ran over her ankle. On appeal, the court first held that defendant waived the direct instructional claim because counsel objected only to the prosecutor’s unanimity argument on the felonious-assault charge, the trial court gave a curative instruction on that count, and counsel affirmatively approved the final instructions. The court explained that “‘[w]aiver extinguishes any error, leaving nothing for this Court to review.’” The court next held that counsel was not ineffective for failing to seek a specific unanimity instruction on domestic violence because, under Cooks, such an instruction is required only when the acts are “materially distinct” or there is reason to believe the jurors may be confused or disagree about the factual basis for guilt. The court found no such confusion because the jury’s questions showed it was “stuck” on the intent element of felonious assault, not on the actus reus of either charge. The court also held that the domestic-violence acts were not materially distinct because they occurred in the same brief encounter, while the vehicle “never stopped moving,” making the acts “tantamount to a continuous course of conduct.” Because the instruction was not required, counsel was not ineffective for failing to request it. Affirmed.

Motion for a new trial; Whether defendant requested substitute counsel; Self-representation; Substantial compliance with People v Anderson & MCR 6.005(D); People v King; Ineffective assistance of counsel; Investigation of defendant’s mental health/pursuing an insanity defense; Failure to inform the trial court of the attorney-client relationship breakdown; Denial of request for trial adjournment; Good cause; People v Coy

The court concluded that defendant did not request substitute counsel, and that the trial court substantially complied with Anderson and MCR 6.005(D) before allowing him to represent himself. It also rejected his claims that appointed counsel was ineffective and that the trial court abused its discretion in denying his motion to adjourn the trial. Thus, it affirmed his resisting and obstructing a police officer and assaulting a prison employee convictions, and the denial of his motion for a new trial. As to his claim that the trial court failed to explore his purported request for new counsel, the record showed “that after three times saying he wanted to ‘dismiss’ his court-appointed attorney, defendant did not say he wanted different counsel, he interrupted the trial judge and stated that he wanted to represent himself. [He] was unequivocal throughout the record in stating he wanted to represent himself, which the trial court, in considering his motion for a new trial, suggested meant ‘this was something [d]efendant may have already been contemplating.’ Defendant subsequently criticized appointed counsel, but he did so while attempting to oppose the trial judge’s desire that appointed counsel remain on standby to assist him during trial, when defendant had made it clear he wanted to represent himself. [He] also complained about appointed counsel in his motion for dismissal, but he did not request another attorney, nor did he do so when they reconvened for trial.” As to granting his self-representation request, the request “was unequivocal, continuing, and unwavering.” It was clear from the record “that the trial court informed defendant both verbally and in writing of the dangers and disadvantages” of representing himself but he continued to assert his right to do so. Further, the prosecution informed him “of the charges and the maximum prison sentences as a habitual offender. Finally, as required by MCR 6.005(D)(2), in making defendant aware that he could call on appointed counsel for assistance, the trial court availed [him] of the opportunity to consult with prior counsel.” The court also found that appointed counsel was not ineffective for failing to investigate defendant’s mental illness history and raise an insanity defense or for not informing the trial court of the attorney-client relationship breakdown.

Sufficiency of the evidence for an uttering & publishing conviction; MCL 750.249(1); People v Hawkins; Credibility

Holding that there was sufficient evidence to support defendant’s uttering and publishing conviction, the court affirmed. The case “arose from his tendering a fraudulent rent check.” He argued there was insufficient evidence to establish his knowledge that the instrument was false and his intent to defraud his landlord (E). As to the former, the “prosecution presented sufficient evidence that the check was not associated with a bank account by demonstrating that the drawee bank rejected [it] for failure to locate an account associated with it.” In addition, defendant’s son stated he had never seen him “write or pay with a check, insisting defendant ‘doesn’t write checks.’” Defendant emphasized “that: (1) he ran a business with the name appearing on the check; and (2) the bank employee acknowledged the bank’s system only retrieved information for accounts created within the previous 10 years, such that she could not say defendant’s business never had an account there. But” the court noted that would require it to set aside the reasonable inferences it “must draw from the jury’s verdict. For example, even assuming defendant opened an account at the bank in his business’s name more than 10 years earlier, a jury could still reasonably infer that such account was inactive (and thus unable to be drawn against) when he wrote the check.” As to intent, E’s testimony placed “defendant’s provision of the false check within a larger pattern of avoiding rent payments.” She testified that he “only ever paid a portion of his first month’s rent; responded to her months-long attempts to collect his outstanding (and ever-increasing) rent obligations with unfulfilled promises to pay; and offered excuses or claimed ignorance as to why each alleged payment attempt and method—including the check—failed.” While he offered “innocent conclusions he believes a jury could reach from” the evidence, the prosecution did “not have to disprove ‘every reasonable theory’ of” his innocence.

Ineffective assistance of counsel; Failure to investigate; Failure to call witnesses; Distinguishing People v Trakhtenberg; Trial strategy; Cross-examination; People v Rockey; CSC III; MCL 750.520d(1)(a)

The court held that defendant failed to establish that he was denied the effective assistance of counsel. Defendant was convicted of CSC III for sexually abusing his sister’s 13-year-old stepdaughter on three occasions while she and her family were temporarily living at defendant’s grandmother’s home. On appeal, the court first rejected defendant’s claim that counsel failed to consult key witnesses or properly investigate because defendant did not provide affidavits or other record evidence showing that the proposed witnesses were willing to testify or what favorable testimony they would have given. The court explained that “‘[w]ithout some indication that a witness would have testified favorably,’” defendant could not show that counsel’s failure to call the witness affected the trial outcome. The court next held that counsel adequately cross-examined the victim’s father, noting that counsel contested the “locations of the sexual abuse incidents,” the “nature of the assaults,” the “number of ejaculations,” whether the father recorded the victim’s statement, and whether she was coached. The court further rejected defendant’s reliance on Trakhtenberg because, unlike that case, the record showed defense counsel investigated and prepared for trial, including by addressing the forensic interview, police report, and details of the victim’s allegations. The court also distinguished the need for an expert in Trakhtenberg, reasoning that the victim here was subject to only one forensic interview, testified she was comfortable disclosing the abuse without significant prompting, and there was no indication that anyone had animus toward defendant or an opportunity to influence her. Affirmed.

Sentencing; Motion for “compassionate release”; The 18 USC § 3553(a) factors; “Seriousness” of the underlying offenses (§§ 3553(a)(1) & (a)(2)(A)); “Public safety” (§ 3553(a)(2)(C))

[This appeal was from the WD-MI.] The court held that the district court did not abuse its discretion by denying defendant-White’s motion for compassionate release based on the seriousness of his crimes and the sentence’s deterrent value. A jury convicted White on seven counts involving drugs and gun crimes, and the district court sentenced him to life in prison. Because of a drug amount calculation error, he was resentenced to 35 years. While serving his sentence, he unsuccessfully moved for release, arguing that the witnesses lied at trial and his counsel was ineffective. He contracted meningitis and was left paralyzed and partially blind. This was followed by mental issues leading to delusions, and harassment of prison nursing staff. The district court denied his motion for compassionate release based on its consideration of the § 3553(a) sentencing factors. It noted that he originally received a long sentence because of “his egregious conduct, to deter others from criminality, and to protect the public.” It noted that his medical situation only affected one of those “factors—public protection. And it was ‘not convinced that [White] present[ed] no risk whatsoever to the public.’” On appeal, applying the abuse of discretion standard, the court reviewed the three things to be considered on a motion for compassionate release—“extraordinary and compelling reasons to release,” the § 3553(a) factors, and applicable policy statements. “If the prisoner flunks any of these requirements, he loses, and the court need not consider the others.” The district court focused on the § 3553(a) factors and was not required to explain its analysis of every one. White’s disagreement with how the factors were balanced was insufficient to require reversal. Contrary to his assertions, the district court considered his medical condition in detail, and did not apply “an incorrect legal standard” in evaluating the need to protect the public. When it “saw several factors that supported his sentence” (§§ 3553(a)(1)–(2)) and one “that cut both ways” (§ 3553(a)(2)(C)), “it was well within its discretion to deny relief.” White had “orchestrated a drug operation from his phone and recruited allies to cause violence. He didn’t use his legs or eyes to commit these crimes. He used only his voice. And, as his mistreatment of nurses shows, his voice is alive and well.” Affirmed.

Complaint amendment; FedRCivP 15(a)(2); Futility; Whether an amended complaint could survive a Rule 12(b)(6) motion to dismiss; Family & Medical Leave Act (FMLA) retaliation; Retaliatory act & motive; Burlington N & Santa Fe Ry Co v White (the Burlington Northern standard); Title IX sex discrimination; Muldrow v City of St. Louis; Discriminatory act & motive; Whether the claim was “facially plausible”

[This appeal was from the ED-MI.] The court reversed the district court’s denial of plaintiff-Ahmed’s motion to file a fourth amended complaint adding FMLA retaliation and Title IX discrimination claims, holding that the amendment was not futile. After three months of medical leave during the COVID-19 pandemic, Ahmed, the Superintendent of defendant-Hamtramck Schools, was informed that she was being placed on paid administrative leave pending an investigation of alleged misconduct. She later learned that no investigation was undertaken. She sued the school district as well as defendants-Hamtramck Federation of Teachers and individual school board members, raising multiple claims. This appeal concerned her fourth motion to amend her complaint. After denying it as futile, the district court granted defendants’ motion to dismiss the claims in the original complaint. On appeal, the court considered her proposed FMLA retaliation and Title IX sex discrimination claims. It explained that an amendment would only be “futile if it could not withstand a Rule (12)(b)(6) motion to dismiss.” Thus, she was only required to plead a claim that was “plausible on its face.” As to her FMLA retaliation claim, she had to allege sufficient facts for the court to infer that “defendants retaliated against her because of her protected FMLA activity, but she need not plead a prima facie case of retaliation. The district court erred by applying a heightened pleading standard to her claim[.]” As to a retaliatory act, the court held that her allegation that she was on paid administrative leave for over a year was sufficient. And her “allegations that the District and Board acted at the first meaningful opportunity raise the plausible inference that they acted with retaliatory motive.” As to her Title IX claim, the district court again “erred in requiring Ahmed to establish a prima facie case” to avoid a futility finding. She only needed to allege a plausible claim. The court applied the Title VII anti-discrimination standard. Noting that the Supreme Court clarified the standard as to the adverse employment action requirement in Muldrow, the court held that she “plausibly alleged that her paid administrative leave caused her some harm concerning a term or condition of her job.” As to discriminatory motive, she pointed to the fact that her male interim replacement “was not placed on paid leave during the District’s investigation of his supposed misconduct[.]” Thus, she “plausibly alleged that her sex was a motivating factor for that discriminatory treatment.” Vacated and remanded.

Real property valuation; Rental restrictions under 26 USC § 142(d) in exchange for tax-exempt bond financing; Consideration of the terms of a land-use restriction agreement (LURA); True cash value (TCV); MCL 211.27(1); Intangible factor; Meadowlanes Ltd Dividend Hous Ass’n v Holland; Res judicata; Collateral estoppel; Tax Tribunal (TT); Continuing senior care retirement center (CCRC)

In this property valuation dispute, the court held that the TT did not err in declining to apply res judicata or collateral estoppel to preclude petitioner’s claim regarding the effect of a LURA with the county as to the property. But it concluded that the TT did err in failing to consider rent restrictions under a federal statute and the LURA in determining the property’s value. The property at issue is a CCRC that was partially financed with tax-exempt bonds. In exchange for that “financing, the CCRC is subject to certain rental restrictions under” a federal statute, § 142(d). The property was also subject to restrictions under the LURA. In challenging respondent’s 2021 tax assessment of the property, petitioner argued that the rent restrictions under § 142 and the LURA impacted the property’s TCV for tax-assessment purposes. Respondent unsuccessfully moved in the TT proceedings “to exclude evidence of the LURA on the basis of res judicata and collateral estoppel[.]” The court noted that for either doctrine to apply, “the prior case must have actually rendered a decision on the merits of petitioner’s LURA argument. But the [TT] in the prior case did not decide petitioner’s LURA claim on the merits; it declined to consider it” due to insufficient evidence. “Because the merits of petitioner’s argument” as to the LURA’s applicability to the TCV were not addressed in that case, neither doctrine applied here. However, the court agreed with petitioner on the issue of consideration of the rent restrictions. It held that, under Meadowlanes, the rent restrictions here “are an intangible factor that would affect the property’s ‘usual selling price’ such that they should be considered in the” assessment of the property’s TCV. “They directly affect the present economic income of the property” and are likely to “affect what a buyer would be willing to pay for the property given its decreased earning capacity. Unlike the prior case, petitioner submitted evidence demonstrating the difference between the market value rents for the units at issue and the adjusted, low-income rents actually charged. Thus, the [TT] made an error of law by failing to consider the rent restrictions” in assessing the property’s TCV. The court affirmed the TT’s denial of respondent’s motion in limine, reversed its valuation of the property, and remanded for the TT “to consider the rental restrictions in its assessment.”

Complaint amendment; FedRCivP 15(a)(2); Futility; Whether an amended complaint could survive a Rule 12(b)(6) motion to dismiss; Family & Medical Leave Act (FMLA) retaliation; Retaliatory act & motive; Burlington N & Santa Fe Ry Co v White (the Burlington Northern standard); Title IX sex discrimination; Muldrow v City of St. Louis; Discriminatory act & motive; Whether the claim was “facially plausible”

[This appeal was from the ED-MI.] The court reversed the district court’s denial of plaintiff-Ahmed’s motion to file a fourth amended complaint adding FMLA retaliation and Title IX discrimination claims, holding that the amendment was not futile. After three months of medical leave during the COVID-19 pandemic, Ahmed, the Superintendent of defendant-Hamtramck Schools, was informed that she was being placed on paid administrative leave pending an investigation of alleged misconduct. She later learned that no investigation was undertaken. She sued the school district as well as defendants-Hamtramck Federation of Teachers and individual school board members, raising multiple claims. This appeal concerned her fourth motion to amend her complaint. After denying it as futile, the district court granted defendants’ motion to dismiss the claims in the original complaint. On appeal, the court considered her proposed FMLA retaliation and Title IX sex discrimination claims. It explained that an amendment would only be “futile if it could not withstand a Rule (12)(b)(6) motion to dismiss.” Thus, she was only required to plead a claim that was “plausible on its face.” As to her FMLA retaliation claim, she had to allege sufficient facts for the court to infer that “defendants retaliated against her because of her protected FMLA activity, but she need not plead a prima facie case of retaliation. The district court erred by applying a heightened pleading standard to her claim[.]” As to a retaliatory act, the court held that her allegation that she was on paid administrative leave for over a year was sufficient. And her “allegations that the District and Board acted at the first meaningful opportunity raise the plausible inference that they acted with retaliatory motive.” As to her Title IX claim, the district court again “erred in requiring Ahmed to establish a prima facie case” to avoid a futility finding. She only needed to allege a plausible claim. The court applied the Title VII anti-discrimination standard. Noting that the Supreme Court clarified the standard as to the adverse employment action requirement in Muldrow, the court held that she “plausibly alleged that her paid administrative leave caused her some harm concerning a term or condition of her job.” As to discriminatory motive, she pointed to the fact that her male interim replacement “was not placed on paid leave during the District’s investigation of his supposed misconduct[.]” Thus, she “plausibly alleged that her sex was a motivating factor for that discriminatory treatment.” Vacated and remanded.

Real property valuation; Rental restrictions under 26 USC § 142(d) in exchange for tax-exempt bond financing; Consideration of the terms of a land-use restriction agreement (LURA); True cash value (TCV); MCL 211.27(1); Intangible factor; Meadowlanes Ltd Dividend Hous Ass’n v Holland; Res judicata; Collateral estoppel; Tax Tribunal (TT); Continuing senior care retirement center (CCRC)

In this property valuation dispute, the court held that the TT did not err in declining to apply res judicata or collateral estoppel to preclude petitioner’s claim regarding the effect of a LURA with the county as to the property. But it concluded that the TT did err in failing to consider rent restrictions under a federal statute and the LURA in determining the property’s value. The property at issue is a CCRC that was partially financed with tax-exempt bonds. In exchange for that “financing, the CCRC is subject to certain rental restrictions under” a federal statute, § 142(d). The property was also subject to restrictions under the LURA. In challenging respondent’s 2021 tax assessment of the property, petitioner argued that the rent restrictions under § 142 and the LURA impacted the property’s TCV for tax-assessment purposes. Respondent unsuccessfully moved in the TT proceedings “to exclude evidence of the LURA on the basis of res judicata and collateral estoppel[.]” The court noted that for either doctrine to apply, “the prior case must have actually rendered a decision on the merits of petitioner’s LURA argument. But the [TT] in the prior case did not decide petitioner’s LURA claim on the merits; it declined to consider it” due to insufficient evidence. “Because the merits of petitioner’s argument” as to the LURA’s applicability to the TCV were not addressed in that case, neither doctrine applied here. However, the court agreed with petitioner on the issue of consideration of the rent restrictions. It held that, under Meadowlanes, the rent restrictions here “are an intangible factor that would affect the property’s ‘usual selling price’ such that they should be considered in the” assessment of the property’s TCV. “They directly affect the present economic income of the property” and are likely to “affect what a buyer would be willing to pay for the property given its decreased earning capacity. Unlike the prior case, petitioner submitted evidence demonstrating the difference between the market value rents for the units at issue and the adjusted, low-income rents actually charged. Thus, the [TT] made an error of law by failing to consider the rent restrictions” in assessing the property’s TCV. The court affirmed the TT’s denial of respondent’s motion in limine, reversed its valuation of the property, and remanded for the TT “to consider the rental restrictions in its assessment.”

Due process; Time to comply with the parent-agency treatment plan (PATP); Effect of the prior adjudication on respondent’s constitutional right to parent her child; In re Ferranti; The best-interest stage of the proceedings; In re Moss; In re White; Consideration of other custodial arrangements

Rejecting respondent-mother’s due process claims related to the best-interest stage of the proceedings, the court affirmed the order terminating her parental rights. She asserted the trial court deprived her of due process by terminating her rights to the child (AJM) without giving her more “time to comply with and benefit from her PATP.” But she raised no issue as to the adjudication, which divested her “of her ‘constitutional right to parent her child,’ instead giving such authority to the state.” The procedures protecting “against the erroneous deprivation of that particular right occur primarily at the adjudicative phase of child protective proceedings.” And the focus shifted further away from her “interests in favor of AJM’s after the trial court determined that statutory grounds existed to terminate her parental rights.” While she still had an interest in maintaining a relationship with the child at the best-interest stage, her arguments missed “that the focus of the proceedings at that stage shifted to AJM’s interests, which by then outweighed” hers. She received “the requisite best-interest hearing, and as with her adjudication hearing, she takes no issue with the procedures used or evidence presented during it.” She did not challenge the referee’s “finding that termination was in AJM’s best interests, instead focusing only on one of several relevant best-interest factors—her compliance with the PATP.” And the court noted that she did “not point to anything contradicting the documentary evidence and testimony . . . indicating that she failed to benefit from the services already provided and likely would not timely benefit from further services.” Based on the record, she failed to show “any error or due-process violation warranting relief by virtue of the trial court’s determination, at the best-interest stage, that affording respondent additional time was not in AJM’s best interests.” As to her alternative contention “that due process requires trial courts to consider, as a mandatory best-interest factor, ‘custodial templates’ short of termination” she conceded such a requirement does not exist. Further, she could not show “that the outcome of the best-interest hearing would have been different had the referee been required to consider alternative custodial options.”