In lieu of granting leave to appeal to defendant, the case was remanded to the Court of Appeals for consideration as on leave granted of the claim that defendant's constitutional right to confrontation was violated by the trial court's admission at the probation revocation hearing of certain hearsay statements. The Court of Appeals was ordered to address whether the federal Court of Appeals opinions on this issue are correct that Crawford v Washington, 541 US 36 (2004) does not apply to probation violation hearings. Case below (#280708).

In lieu of granting leave to appeal, defendant's sentences were vacated and the case remanded for resentencing because the reduction in defendant's offense variable score reduced the minimum guidelines range, and the sentencing court's statements on the record in denying defendant's motion for resentencing did not clearly indicate whether the court would impose the same sentences regardless of any scoring error. Case below: (#281518).

In lieu of granting leave to appeal, defendant's sentence was vacated and resentencing was ordered. The trial court was directed to sentence defendant within the guidelines range or state a substantial and compelling reason for departure. Case below: (#282703).

In lieu of granting leave to appeal, the amended judgment of sentence ordering defendant to pay attorney fees was vacated and the case remanded for consideration of defendant's ability to pay now and in the future. The trial court may make its decision based on the record without the need for a formal evidentiary hearing. If the court decides defendant should pay, it must be by separate order.

Justice Corrigan, concurring in part and dissenting in part, would find that the trial court had no obligation to consider defendant's ability to pay because he failed to object on indigency grounds and because People v Dunbar, 264 Mich App 240 (2004), was wrongly decided. Also, defendant's challenge is premature as he has not been sanctioned for nonpayment. Justice Corrigan agreed that the reimbursement order should be a separate order.

In lieu of granting leave to appeal, the judgment of the Court of Appeals affirming the conviction of first-degree criminal sexual conduct was reversed and the case remanded for a new trial. The Court adopted the dissenting opinion of Judge Gleicher that testimony from two witnesses, the child victim's mother and sister, did not fulfill the foundational requirements of MRE 803A, the “tender years” exception to the hearsay rule. The trial court improperly ruled that the foundational question was a question for the jury. The victim's first statement concerning the sexual assault was to a friend, not to either witness, and the report to the sister 11 months after the incident was not spontaneous but was made in response to questioning. The mother's testimony was not admissible either as a prior consistent statement under MRE 801(d)(1) or as impeachment. The statement was used to provide substantive, extrinsic evidence of the sexual assault. It was not admissible under MRE 803A as it bore none of the required indicia of trustworthiness. The error in admitting the statements was not harmless.

Defendant was sentenced to one and one-half to five years in prison for second-degree home invasion and was required to serve the five-year maximum. As defendant was preparing for his imminent release, the trial court was contacted by the Department of Corrections concerning the sentencing error [second-degree home invasion has a statutory maximum sentence of 15 years], and the court thereupon “corrected” the maximum sentence, adding an additional ten years. The Court of Appeals denied relief and the Supreme Court denied leave to appeal.

Justice Corrigan, concurring, stated that the trial judge properly corrected defendant's erroneous maximum sentence, and called the error a “clerical” error.

Justice Kelly, dissenting, pointed out that the record suggests that the error may be an error of law, akin to an unintentional violation of the Tanner rule, and the error would therefore be substantive, not clerical. The court rules do not provide a method to correct an error in the maximum sentence discovered five years later. Because this issue is jurisprudentially significant, because of the need for finality in judgments, and because this case implicates defendant's constitutional rights, full appellate review should be granted.

Justice Markman, dissenting, calling the sudden tripling of defendant's sentence extraordinary and unprecedented, would remand to the Court of Appeals to consider whether defendant's constitutional or statutory rights were implicated by the timing of events in this case. Justice Markman stressed that finality in the sentencing process is necessary to the “rehabilitative functions of the criminal justice system.”

In lieu of granting leave to appeal, the case was remanded for a Ginther hearing to determine whether appellate counsel were ineffective for failing to raise the issue of whether the defendant's conviction for CSC II was improper under People v Cornell, 466 Mich 335 (2002), which was decided while the appeal was pending.

Justice Corrigan, dissenting, would deny leave to appeal because the defendant's successive motion for relief from judgment was prohibited by MCR 6.502(G) since he failed to raise the Cornell issue in his first 6.500 motion. (Justice Young agreed on this point). Also, according to Justice Corrigan, counsel were not ineffective because People v Nyx, 479 Mich 112 (2007), was not decided until after the defendant's conviction became final.

Oral argument was ordered on whether to grant leave to appeal to the defendant. The case had been remanded for a hearing on whether the complainant had made a prior false accusation of sexual assault against another person. The parties were directed to address the following issues: whether the prior accusations were admissible under the rules of evidence and whether the evidence is subject to the rape shield statute; whether the truth or falsity of the accusations makes a difference in determining their admissibility; whether the circuit court erred in prohibiting the discovery and introduction of the evidence; and whether defendant was denied his constitutional rights to confrontation and to present a defense. Justice Corrigan objected that the order does not ask the parties to address whether the trial court erred in finding no evidence of a false accusation.

Defendant’s application for leave to appeal was denied, but the Court took the opportunity to emphasize that it is improper for a prosecutor to make a personal attack on defense counsel, suggesting to jurors that counsel is intentionally trying to mislead them. Such conduct is “unbecoming of a representative of the state.”

Justice Corrigan, concurring, stated that the prosecutor’s remarks that defense counsel clouded up the facts and muddied the waters, and that the defense was a “cockroach” defense [contaminating the facts by crawling around all over them until there is reasonable doubt], were proper comments in response to defense counsel’s argument.

On remand from the United States Supreme Court for reconsideration in light of Halbert v Michigan, 545 US 605 (2005) (requiring appellate counsel for indigent defendants who pled guilty or nolo contendere), the defendant’s application for leave to appeal had been held in abeyance pending the decision in Simmons v Kapture, ___ F3d ___(#03-2609, 2008). The Sixth Circuit, on rehearing en banc in Simmons, decided that Halbert does not apply retroactively. Defendant Houlihan's application was denied.

Justice Cavanagh would grant leave to appeal.

Justice Kelly, dissenting, would hold this case in abeyance until the time for filing a petition for certiorari in Simmons has expired, and if the petition is filed in Simmons, this case should be held in abeyance pending the United States Supreme Court’s decision. Also, Justice Kelly stated that the Michigan Supreme Court should consider whether Halbert applies retroactively under Michigan law.

In lieu of granting leave to appeal to the defendant, the Court vacated his sentence for first-degree criminal sexual conduct and remanded for resentencing. The court stated that the defendant should have been scored zero points for PRV 1 where there was no evidence to support a finding that he had been convicted of a prior high severity felony.

Justice Weaver, dissenting, was not persuaded that the decision of the Court of Appeals was erroneous.

Justice Corrigan, dissenting, stated that defendant’s claim that his Texas conviction of assault was not a high priority crime was unsupported, and found resentencing a “waste of judicial resources occasioned by this Court’s opinion in People v Francisco, 474 Mich 82 (2006)” because defendant’s minimum sentence was within the corrected guidelines range.

Oral argument was ordered on whether to grant the application, and the parties were ordered to address the interpretation and application of the “use of authority” language in the criminal sexual conduct statutes.

The Court scheduled oral argument and directed the parties to address the following issues: 1) whether requiring a defendant to plead guilty in order to preserve the right of his family members to benefit from plea bargains is coercive; 2) whether the defendant's claims of innocence and coercion provided sufficient reasons under the standard of review for plea withdrawal before sentencing to support granting his motion; 3) whether an evidentiary hearing is required; and 4) whether the prosecutor will be prejudiced if defendant is allowed to withdraw his plea.

Justice Corrigan wrote to explain the facts. The defendant and his family members were charged with manufacturing marijuana, a felony, and (except for defendant's brother) allowed to plead guilty to maintaining a drug house, a misdemeanor. A condition of the plea was that if any one family member declined to accept the agreement, none of the others would be allowed to plead. Defendant moved to withdraw his plea, claiming coercion. According to the prosecution, allowing defendant to withdraw his plea would both prejudice the prosecution and be against the interest of justice.

In lieu of granting leave to appeal to defendant, the Court reversed the judgment of the Court of Appeals and remanded to the Clinton Circuit Court for DNA testing. Defendant presented prima facie proof that the semen found in the victim's body shortly after the assault was material to his identity as the perpetrator, especially if the DNA does not match either defendant or the victim's boyfriend. MCL 770.16(1) does not limit requests for DNA testing to those cases in which the biological evidence itself leads to the defendant's conviction.

Justice Weaver, dissenting, would deny leave to appeal.

Justice Young, joined by Justice Corrigan, dissenting, would deny leave to appeal because defendant failed to appeal the trial court's initial order denying his petition for DNA testing of the semen and, instead, filed a second petition. His opportunity for appeal was closed, according to the dissenters.

Defendant's application for leave to appeal was denied, but Justice Markman wrote a dissent questioning whether defendant's admission that he downloaded child sexually abusive material from the Internet and saved it to a flash drive constituted a sufficient factual basis to support his guilty plea to “producing or making” child sexually abusive material. Justice Markman would grant leave to appeal because it is doubtful whether the Legislature intended to punish defendant the same as a person “who coerces children into posing for sexual activities in order to create pornographic images.” Case below: unpublished order (#279313, 08-20-07).

In lieu of granting leave to appeal, the case was remanded to the Court of Appeals with orders to consider defendant's application for leave to appeal as having been timely filed. Defendant's attorney admitted that she knowingly allowed the appellate deadline to pass because defendant's family was unable to pay for her services. The Court found that defendant was deprived of his direct appeal as a result of constitutionally ineffective assistance of counsel. Case below: unpublished order (#278507, 07-13-07)

Justice Corrigan dissented and would remand for a Ginther hearing to determine whether defendant's attorney rendered ineffective assistance of counsel and whether defendant contributed to the delay.

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