June, 2016

BB 273072:  Due process requires resentencing where a number of defendant’s prior convictions that resulted in incarceration may have been obtained without counsel or a valid waiver; and defense trial counsel was constitutionally ineffective in failing to object at sentencing to consideration of those convictions to either score sentencing guidelines prior record variables or determine defendant’s sentence.

BB 273072:  Due process requires resentencing or at least an evidentiary hearing where defendant disputes the prosecutor’s statement that defendant was involved in an escape attempt or property destruction occurring at the county jail pending sentencing; alternatively, defense trial counsel was constitutionally ineffective in failing to object.

BB 273122:  Defendant was denied a fair trial by the admission of evidence that he was involved in a separate crime and evidence that an assault rifle and other weapons unconnected to the offense were seized at his home.

BB 273126:  Defendant must be allowed to withdraw his plea because the pleas were entered without the defendant receiving legally adequate advice of the charges, followed by an incorrect conviction; this invalidates his plea under US Const, Ams V, XIV; Const 1963, Art 1, § 17; MCR 6.302.

BB 273247:  Defendant-appellant must be retried because the prosecution improperly relied on “drug profile” testimony as substantive evidence of guilt.  The error is plain, or in the alternative trial counsel was ineffective for not objecting.

BB 273502:  Imposing a 20% late fee pursuant to MCL 600.4803(1) constitutes an impermissible means of enforcement that exposes criminal defendants who have had the assistance of appointed counsel to more severe collection practices than ordinary civil debtors.

BB 273625:  The trial judge reversibly erred in denying defendant’s motion for a directed verdict as to the assault charge, as the trial evidence was constitutionally insufficient to prove he aided and abetted whoever stabbed the complainant.

BB 273821:  The trial court violated appellant’s due process rights by refusing to grant a mistrial after the prosecutor failed to redact statements about appellant going to court on other cases, sexually assaulting a teacher when appellant was twelve years old, and offering to take a polygraph, contained in appellant’s recorded police interview played to the jury.

BB 273934:  Defendant was denied a fair trial where the attorney of the prosecutor’s star witness testified that the witness had made prior consistent statements to her and then vouched for the witness’s veracity and truthfulness. Alternatively, trial counsel rendered ineffective assistance in failing to object.

BB 274072:  Due process requires resentencing where the trial court originally imposed a 25-year maximum term, but then changed it to 32 years based on a mistake of law regarding the applicability of the Tanner two-thirds rule.

BB 274273:  The trial court reversibly erred by allowing one thousand dollars in costs to be included on the judgment after recognizing at sentencing that defendant had already remitted $500 of that amount, thereby changing the amount of costs, attorney fees, or mandatory assessments defendant is ordered to pay after defendant left the courtroom, in violation of state and federal due process law which governs sentencing.

BB 274327:  Mr. Steele was denied his state and federal constitutional rights to effective assistance of counsel when defense counsel failed to seek an adjournment or continuance and/or assistance to produce a defense witness for trial.

BB 274932:  The trial court reversibly erred in failing to consider defendant’s income, in accord with the plain language of the statute at the time it imposed probation oversight fees.

BB 275036:  Because defendant showed his plea may have been induced by counsel’s failure to provide him with the discovery materials he needed to review to make a knowing and voluntary plea, and because he displayed a reluctance to admit guilt, the trial judge should have granted his pre-sentence motion to withdraw his guilty plea.

BB 275100:  The prosecutor’s argument admonishing the jury not to consider the lesser offense of second degree murder invaded the jury’s domain and undermined defendant’s right to have the jury exercise leniency, thus depriving him of the due process right to a fair trial.

BB 275273:  Due process requires resentencing where the court improperly scored fifteen points for OV 8, even though defendant did not move the complainant to another room or hold her captive longer than the time involved in committing the offenses; alternatively, defense trial counsel was constitutionally ineffective in failing to object.

BB 275273:  Defendant is entitled to correction of the presentence investigation report where defense trial counsel objected to information in the report and the court had ordered the information stricken from the report.

BB 275480:  The trial court reversibly erred in admitting the text messages from a phone found in one of the bedrooms, which were not authenticated and which were hearsay.

BB 275665:  The hearing court erred by denying the defense motion to suppress.  The trooper’s subjective impression that defendant-appellant’s muffler was “loud” was, on this record, inadequate reason to suspect a noise violation, and thus inadequate reason to allow her to stop the defendant-appellant’s vehicle.

BB 275708:  The conviction and sentence in this case are invalid because there was no appropriate authority to prosecute and convict defendant on second degree murder; drunk driving causing death was the more specific and appropriate criminal statute, thus, the prosecution and conviction violated defendant’s due process rights.

BB 276294:  Where it appears that defendant’s two prior felony-firearm convictions arose out of the same criminal transaction,  the trial court erred in sentencing him to the mandatory ten year sentence as a third felony-firearm offender, contrary to the controlling Michigan Supreme Court decision in People v. Stewart, 441 Mich. 89 (1992).  Further, trial counsel rendered ineffective assistance in failing to object to this error.

BB 276295:  The court of appeals erred in ruling that the motion to correct presentence report was un-timely.

BB 276295: The court of appeals erred in holding that the trial court did not “abuse its discretion” in denying the motion to correct presentence report. The trial court never exercised any discretion on the matter but refused to consider the merits of the motion.  Furthermore, the material relied on by the court of appeals does not appear to be a part of defendant-appellant’s record in this case.

BB 276829:  The trial judge reversibly erred in precluding evidence of the decedent’s blood alcohol content level at the time of the collision and his prior convictions for OWI and OUIL.  This evidence was relevant, not excludable under MRE 403, and it was admissible under People v. Feezel.  The preclusion violated defendant’s constitutional rights to present a defense.