MAACS Attorneys Obtain Positive Outcomes for Clients on Appeal
MAACS attorneys have obtained positive outcomes for clients on appeal in several selected recently decided appellate cases on issues including Crosby hearing procedure, offense variable scoring, good cause for relief from judgment, witness unavailability, departure sentences, and consecutive sentencing.
Ronald D. Ambrose: People v Devaun Leroy Lopez (COA No. 327208). A witness pleaded the Fifth Amendment and refused to testify in Mr. Lopez’s trial after the prosecution warned him that he could face life in prison if he perjured himself by offering testimony different from the testimony he offered at preliminary examination. The trial court declared the witness unavailable and allowed the introduction of his preliminary examination testimony. The Court of Appeals panel remanded for an evidentiary hearing regarding the witness’s unavailability, and the trial court ruled that the prosecution procured the absence of the witness through intimidation, so the witness was not unavailable; the trial court ordered a new trial.
Stephen Michael Cornish: People v Bradley Duane Gatt (COA No. 340885). The Court of Appeals panel agreed with Mr. Cornish that the trial court erred in scoring OVs 10, 12, 16. Correcting the trial court’s errors altered Mr. Gatt’s guidelines range, so the panel remanded for resentencing.
Mitchell T. Foster: People v Kaylee Rose Booth (COA No. 341985). On Ms. Booth’s initial appeal, the Court of Appeals panel concluded that the original judge sentenced Ms. Booth on the basis of judicial fact-finding and remanded for a Crosby hearing. On remand, a successor judge determined that the original judge would have imposed the same sentence and ordered accordingly. The Court of Appeals panel ruled that the successor judge erred because the correct inquiry is whether the successor judge would have imposed the same sentence, not what the original judge might have imposed. People v Howard, 323 Mich App 239 (2018).
Robyn M. Kennedy: People v. Steven Howell (COA No. 341416). Mr. Howell’s 12-year-old stepdaughter (TW) attempted to intervene in an altercation between her mother and Mr. Howell. Mr. Howell pleaded guilty to domestic violence, third offense. On appeal of sentence, the Court of Appeals panel held that OV 10 was misscored because nothing more than TW’s youth suggested that she was susceptible to injury or physical restraint. The correct scoring of OV 10 lowered Mr. Howell’s guidelines range, so the panel remanded for resentencing.
Melissa Krauskopf: People v Peter Thomas Brinkey, ___ Mich App ___ (2019) (COA No. 342419). Mr. Brinkey withdrew his plea after the trial stated at sentencing that it would not follow the agreement. The court subsequently entered a Cobbs agreement with Mr. Brinkey. At the second plea hearing, without mentioning the Cobbs agreement, the trial court asked Mr. Brinkey if he wanted “to reinstate his prior plea,” and Mr. Brinkey agreed. Mr. Brinkey thought he was agreeing to reinstate the original plea, not the Cobbs agreement. The Court of Appeals held that the second guilty plea was not understandingly, knowingly, voluntarily, or accurately made because the trial court never explained to defendant what it meant by “prior plea.”
Melissa Krauskopf: People v Lorenzo J Harrel (COA No. 339800). Mr. Harrel, a former juvenile lifer, was resentenced to a term of years. The trial court granted Mr. Harrel’s motion for relief from judgment and ordered resentencing on Mr. Harrel’s remaining offenses. The Court of Appeals panel affirmed the trial court’s grant of the motion and resentencing, rejecting the prosecution’s arguments that the motion was improperly successive or lacked good cause.
Kathryn L. Simmons: People v. Anthony Beaty (COA No. 331942). The Court of Appeals panel vacated Mr. Beaty’s sentence for delivery of a controlled substance causing death and remanded for a second resentencing because the trial court failed to provide adequate reasons for the extent of the departure sentence.
Jonathon B.D. Simon: People v. Anthony Dulaney (COA No. 334813). The Court of Appeals panel remanded for the trial court to articulate particularized reasons on the record for its decision to impose consecutive sentencing for home invasion.
Ronald D. Ambrose: People v Devaun Leroy Lopez (COA No. 327208). A witness pleaded the Fifth Amendment and refused to testify in Mr. Lopez’s trial after the prosecution warned him that he could face life in prison if he perjured himself by offering testimony different from the testimony he offered at preliminary examination. The trial court declared the witness unavailable and allowed the introduction of his preliminary examination testimony. The Court of Appeals panel remanded for an evidentiary hearing regarding the witness’s unavailability, and the trial court ruled that the prosecution procured the absence of the witness through intimidation, so the witness was not unavailable; the trial court ordered a new trial.
Stephen Michael Cornish: People v Bradley Duane Gatt (COA No. 340885). The Court of Appeals panel agreed with Mr. Cornish that the trial court erred in scoring OVs 10, 12, 16. Correcting the trial court’s errors altered Mr. Gatt’s guidelines range, so the panel remanded for resentencing.
Mitchell T. Foster: People v Kaylee Rose Booth (COA No. 341985). On Ms. Booth’s initial appeal, the Court of Appeals panel concluded that the original judge sentenced Ms. Booth on the basis of judicial fact-finding and remanded for a Crosby hearing. On remand, a successor judge determined that the original judge would have imposed the same sentence and ordered accordingly. The Court of Appeals panel ruled that the successor judge erred because the correct inquiry is whether the successor judge would have imposed the same sentence, not what the original judge might have imposed. People v Howard, 323 Mich App 239 (2018).
Robyn M. Kennedy: People v. Steven Howell (COA No. 341416). Mr. Howell’s 12-year-old stepdaughter (TW) attempted to intervene in an altercation between her mother and Mr. Howell. Mr. Howell pleaded guilty to domestic violence, third offense. On appeal of sentence, the Court of Appeals panel held that OV 10 was misscored because nothing more than TW’s youth suggested that she was susceptible to injury or physical restraint. The correct scoring of OV 10 lowered Mr. Howell’s guidelines range, so the panel remanded for resentencing.
Melissa Krauskopf: People v Peter Thomas Brinkey, ___ Mich App ___ (2019) (COA No. 342419). Mr. Brinkey withdrew his plea after the trial stated at sentencing that it would not follow the agreement. The court subsequently entered a Cobbs agreement with Mr. Brinkey. At the second plea hearing, without mentioning the Cobbs agreement, the trial court asked Mr. Brinkey if he wanted “to reinstate his prior plea,” and Mr. Brinkey agreed. Mr. Brinkey thought he was agreeing to reinstate the original plea, not the Cobbs agreement. The Court of Appeals held that the second guilty plea was not understandingly, knowingly, voluntarily, or accurately made because the trial court never explained to defendant what it meant by “prior plea.”
Melissa Krauskopf: People v Lorenzo J Harrel (COA No. 339800). Mr. Harrel, a former juvenile lifer, was resentenced to a term of years. The trial court granted Mr. Harrel’s motion for relief from judgment and ordered resentencing on Mr. Harrel’s remaining offenses. The Court of Appeals panel affirmed the trial court’s grant of the motion and resentencing, rejecting the prosecution’s arguments that the motion was improperly successive or lacked good cause.
Kathryn L. Simmons: People v. Anthony Beaty (COA No. 331942). The Court of Appeals panel vacated Mr. Beaty’s sentence for delivery of a controlled substance causing death and remanded for a second resentencing because the trial court failed to provide adequate reasons for the extent of the departure sentence.
Jonathon B.D. Simon: People v. Anthony Dulaney (COA No. 334813). The Court of Appeals panel remanded for the trial court to articulate particularized reasons on the record for its decision to impose consecutive sentencing for home invasion.
Gary Strauss: People v Travonte Marcel Brown (COA No. 341806). The Court of Appeals panel determined that there was no evidence to support a score of 15 points for OV 5 (psychological injury to victim’s family member), and the prosecution conceded as much. The correct score for OV 5 altered Mr. Brown’s guidelines range, so the panel remanded for resentencing.
These are only a few of the recent MAACS attorney successes. We are proud of all the MAACS attorneys for providing high-quality, effective assistance to their clients.
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