Michigan Supreme Court

Summaries of cases to be argued before the Michigan Supreme Court

The Michigan Supreme Court will hear oral argument in its courtroom on the sixth floor of the Michigan Hall of Justice today starting at 9:30 a.m. The Court’s oral arguments are open to the public and are also streamed live at http://courts.mi.gov/Courts/MichiganSupremeCourt/ Clerks/Oral-Arguments/Pages/live-streaming.aspx. The Court provides summaries of the cases it will hear at http://courts.michigan.gov/Courts/MichiganSupremeCourt/Clerks/Oral-Arguments/Pages/default.aspx.
Please note: These brief accounts may not reflect the way that some or all of the Court’s seven justices view the cases. The attorneys may also disagree about the facts, issues, procedural history, and significance of these cases.

• Wednesday, May 8
  Morning Session Only

KENNEY v BOOKER (case no. 145116)
Court of Appeals case no. 304900
Attorney for plaintiff Patrick J. Kenney: Kevin S. Ernst
Attorney for defendant Warden Raymond Booker: B. Eric Restuccia
Trial Court: Wayne County Circuit Court
Issue: Several months before he was to be discharged from parole on drug possession charges, the plaintiff in this case was pulled over while driving with a drug dealer friend; police discovered a gun in the engine compartment. After the parole board concluded that he had violated his parole, the plaintiff brought an action for habeas corpus, arguing in part that there was insufficient evidence that he had violated his parole conditions.
Summary:
Patrick Kenney was on probation for a drug possession charge when he was again caught possessing drugs. On April 2, 2002, he was sentenced to 18 months to 15 years in prison, plus a concurrent one- to 15-year term for the new drug charge. Kenney was paroled on October 4, 2005, and was scheduled to be discharged from parole on August 3, 2008.
But in early 2008, Kenney was caught driving around in his mother’s Mercedes with his friend and roommate, John Cook, a known drug dealer – and with a firearm and ammunition in the engine compartment. Kenney apparently let Cook drive the car from time to time in exchange for drugs. Kenney was charged with five parole violations: (1) failing to keep an appointment with his parole officer; (2) violating state law (felon in possession of a firearm) by having a gun in his car; (3) violating parole conditions against having a gun; (4) violating parole conditions against having a gun and ammunition; and (5) stealing property from his mother and pawning it.
On April 23, 2008, Kenney’s parole was revoked after a parole board finding that he was in possession of the gun and ammunition found in the Mercedes. He pleaded guilty to missing a meeting with his parole agent; the agent dismissed the stealing count. No criminal charges were issued by the county prosecutor.
Kenney filed a complaint for habeas corpus — claiming that he was wrongfully detained and should be released — in the circuit court. On August 8, 2010, the circuit judge directed the parole board to conduct another hearing because the state had failed to turn over evidence favorable to Kenney, including that Cook had been driving the car alone a couple of weeks before Kenney was stopped, and that the police officers who stopped Cook found a gun in the engine compartment. The evidence also indicated that the gun had been stolen by someone matching Cook’s description.
Following a two-day hearing, an administrative law examiner recommended that the parole board find Kenney guilty of violating his parole because he “should have known” the gun was in the car based on his association with Cook, his knowledge of Cook’s drug dealing, and his awareness that Cook was caught with a gun hidden in the same spot in the same car a couple of weeks earlier. The parole board continued Kenney’s parole, but Kenney again filed a complaint for habeas corpus. The circuit judge released Kenney from parole, finding “as a matter of law” that Kenney did not commit four of the five parole violations he was charged with. The judge found a “radical defect in jurisdiction” arising from a due process violation in the parole revocation hearing. The administrative law examiner erred by using a “should have known” standard, the circuit judge said, and the evidence failed to establish that Kenney had actual or constructive possession of the handgun.
The Attorney General appealed, arguing that there was no radical defect in jurisdiction that would have rendered the parole board’s decision void. In an unpublished per curiam opinion, a majority of the Court of Appeals agreed and reversed the circuit court’s grant of habeas corpus.
A “radical defect in jurisdiction” requires an act or omission that clearly contravenes an express legal requirement, the majority explained. Under Michigan law, it is not clear whether or when a claim of insufficient evidence may establish a radical defect in jurisdiction for the purpose of habeas relief. But under federal decisions, even “some evidence” will support a revocation of parole, the majority noted. While there was no direct evidence that Kenney knew about the gun, there was sufficient circumstantial evidence to support the conclusion that Kenney had “constructive possession” of the gun. The evidence established, the majority noted, that Kenney and Cook lived together, that Cook traded drugs to Kenney in exchange for using the car where the gun was found, that Kenney knew Cook was a drug dealer and could reasonably infer that drug dealers carry weapons, and that Cook was a passenger in the Mercedes when Kenney was stopped by the police. A reasonable fact-finder could decide that plaintiff constructively possessed the firearm, so there was no due process violation, the majority reasoned.
Finally, it did not appear that the administrative law examiner’s findings were based solely on the “should have known” standard, the majority said. While the examiner cited that standard, her reasoning suggested that she found that Kenney actually knew about and constructively possessed the firearm. Thus, there was not a radical defect in the parole board’s jurisdiction warranting habeas corpus relief, the majority concluded.
But the dissenting judge said that the administrative law examiner should have applied a “preponderance of the evidence” standard instead of “should have known.” Under a “preponderance of the evidence” standard, the law examiner’s findings do not support a determination that Kenney actually or constructively possessed the firearm, the dissent said. Cook was in possession of the Mercedes before Kenney began driving, and admitted that Kenney did not put the gun in the car, the dissent noted, and the law examiner found Cook’s testimony credible. Moreover, when Cook was arrested while driving the car two weeks earlier — when police discovered a gun in the engine compartment — Kenney was not present, the dissent said. Thus, the trial court appropriately found that there was insufficient evidence to sustain a gun possession finding, the dissent concluded. Since Kenney pleaded guilty to failing to make a scheduled report, the case should be remanded to the parole board to determine whether to revoke Kenney’s parole on that basis, the dissent added.
Kenney appealed. In an order dated September 19, 2012, the Supreme Court ordered the case to be scheduled for oral argument “on whether to grant the application or take other action.” The Court directed the parties to address in their briefs “(1) what standards should govern whether to grant habeas corpus relief; (2) whether a claim of insufficient evidence in the context of a parole hearing may provide a basis for habeas corpus relief; (3) whether evidence that a parolee ‘should have known’ of the presence of an item is sufficient to establish possession of that item where possession of the item constitutes a violation of parole; and (4) what standard of review applies to factual decisions by the Parole Board.”
The Court heard oral argument on January 10. In an order dated January 25, 2013, the Supreme Court granted Kenney’s application for leave to appeal. The Court directed the parties to “address: (1) the relationship between common law and statutory habeas corpus; (2) the standard for establishing a claim for habeas corpus relief, including whether there is a difference between the standard for providing relief at common law and by statute, MCL 600.4301, et seq.; (3) the scope of the limitations on habeas corpus found in MCL 600.4310; (4) the effect, if any, of the availability of other means of review on claims for habeas corpus relief generally, and specifically in the context of parole revocation; (5) the validity and scope of the ‘radical defect’ requirement in habeas corpus cases, including whether such requirement is limited solely to defects in subject matter or personal jurisdiction; (6) the standard of review applicable to habeas corpus claims, including if there is a difference at common law and by statute; (7) the type(s) of relief that may be granted to successful habeas corpus claimants; and (8) whether habeas corpus principles recognize a distinction between executive detention and judicially-ordered detention and, if so, the significance of that distinction.”

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PEOPLE v HARDY (case no. 144327)
Court of Appeals case no. 306106
Prosecuting attorney: Kathryn G. Barnes
Attorney for defendant Donald Michael Hardy: Ronald D. Ambrose
Trial Court: Oakland County Circuit Court
Issue: The defendant racked a shotgun while robbing the victim. Should the range for his minimum sentence be increased on the basis that his conduct was “designed to substantially increase the fear and anxiety a victim suffered”?
Summary:
Donald Hardy and an accomplice accosted a man at gunpoint in a parking lot, demanding everything he had. Hardy pointed a shotgun at the victim and pumped it, then, with his accomplice, began going through the victim’s pockets. A struggle ensued, with the victim grabbing the barrel of the shotgun to point it away from him. As the victim and Hardy struggled for control of the shotgun, the other perpetrator got into the victim’s car; Hardy joined him, and the two fled. The victim suffered a cut on his hand and a bump on the head.
Police officers arrested Hardy and his accomplice; Hardy confessed and later pleaded guilty to the carjacking. The trial court sentenced Hardy, then 17, as an adult, to a prison term of 12 to 50 years. As a result of the judge’s scoring decisions, the minimum guideline range for Hardy’s carjacking sentence was 108-180 months. Statutory sentencing guidelines include offense variables, which represent different aspects of a crime; the statute assigns a range of points for each OV. In this case, the judge scored 50 points for OV 7 (MCL 777.37, aggravated physical abuse) for Hardy’s racking the shotgun as he pointed it at the victim. If OV 7 had been scored at zero points, the guidelines would have recommended a minimum sentence in the range of 42 to 70 months. (About a week before his guilty plea, while he was on bond for the carjacking, Hardy committed another robbery, for which he was sentenced to consecutive prison terms of 6 years, 9 months to 50 years for armed robbery and two years for felony firearm. Both of these sentences will run consecutively with his carjacking sentence.)
After the trial court denied Hardy’s motion for resentencing, he appealed, but the Court of Appeals denied leave to appeal for lack of merit in the grounds presented, though one judge would have granted leave on the ground that OV 7 was misscored.
Hardy appealed to the Supreme Court, arguing that the trial court erred by assessing 50 points for OV 7. MCL 777.37(1)(a) provides for a score of 50 points for OV 7 when “[a] victim was treated with sadism, torture, or excessive brutality or conduct designed to substantially increase the fear and anxiety a victim suffered during the offense.” Hardy asserted that he racked the shotgun, once only, to proceed with the robbery, not to increase the victim’s fear. Moreover, OV 7 is properly scored at 50 points only in aggravated cases that require for harsh sanctions, Hardy contended.  During the robbery, Hardy did not torture the victim, beat or brutalize him, or subject him to prolonged pain or humiliation to produce suffering or for his own gratification, Hardy maintained. Hardy also argued that his trial lawyer rendered ineffective assistance of counsel by failing to object to the judge’s scoring of OV 7.
The prosecution argued that Hardy’s racking the shotgun was designed to put the victim in immediate fear for his life, so Hardy did “substantially increase the fear and anxiety” the victim suffered for the purposes of scoring OV 7 at 50 points.
At sentencing, the prosecutor cited People v Hornsby, 251 Mich App 462 (2002). In that case, the Court of Appeals upheld a trial court’s scoring of OV 7 at 50 points, based largely on the trial court’s finding that the defendant, by cocking a shotgun, had substantially increased the victims’ fear and anxiety by putting them in immediate fear of their lives. Hardy argued on appeal that Hornsby should not apply to his case, because in Hornsby, the defendant not only racked his gun, but repeatedly threatened the victims’ lives — conduct designed to substantially increase the victims’ fear and anxiety.
In an order dated June 8, 2012, the Supreme Court granted leave to appeal. The Court directed, “The parties shall address whether the trial court erroneously assessed 50 points for offense variable 7 (OV 7), MCL 777.37(1)(a), because the defendant racked a shotgun during the carjacking, and whether trial counsel was ineffective for waiving this issue.” The Court also ordered the circuit court to determine whether Hardy is indigent “and, if so, to appoint counsel to represent the defendant in this Court.”

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PEOPLE v GLENN (case no. 144979)
Court of Appeals case no. 302293
Prosecuting attorney: Jerrold E. Schrotenboer
Attorney for defendant Devon Decarlos Glenn, Jr.: Linda D. Ashford
Attorney for amicus curiae Attorney General Bill Schuette: Mark G. Sands
Trial Court: Jackson County Circuit Court
Issue: While robbing a convenience store, the defendant hit both store clerks in the head with what appeared to be a sawed-off shotgun. Should the range for his minimum sentence be increased on the basis that his conduct was “designed to substantially increase the fear and anxiety a victim suffered”?
Summary:
Devon Glenn and an accomplice robbed a gas station and convenience store, which was staffed by two clerks. Glenn was carrying what appeared to be a sawed-off shotgun — in reality, an airsoft gun. Glenn hit one clerk in the head with the butt of the gun, demanding that the clerk open the cash register; he also hit the other clerk in the head with the gun, knocking him to the ground. After taking money from the cash register and the store safe, Glenn and his accomplice fled to a getaway car with a third man at the wheel, but not before Glenn again hit one of the clerks in the head with the gun. As the two ran across the street, they were seen by an off-duty deputy, who gave chase in his own car. When he caught up to them, one of the robbers approached the deputy’s car and stuck the air gun inside the passenger window, telling the deputy to stop following. In response, the deputy pulled a real firearm, and the robber fled, getting away with Glenn and the driver of the getaway car. The three were later arrested, and Glenn confessed to the robbery.
Glenn was charged with conspiracy to commit armed robbery, two counts of armed robbery, and two counts of felonious assault. He was notified that, if convicted, he would be sentenced as a third habitual offender. Glenn pleaded guilty to one count of armed robbery and one count of felonious assault, in exchange for the prosecutor’s agreement to dismiss the other charges and the habitual offender notice; Glenn also agreed to testify against his co-defendants.
The judge sentenced Glenn to 15 to 30 years for armed robbery, and one and a half to four years for felonious assault. As a result of the judge’s scoring decisions, the minimum guideline range for Glenn’s armed robbery sentence was 126-210 months. Statutory sentencing guidelines include offense variables, which represent different aspects of a crime; the statute assigns a range of points for each OV. In this case, the judge scored 10 points for OV 12 (contemporaneous felonious acts). Over defense counsel’s objection, the judge also scored 50 points for OV 7 (MCL 777.37, aggravated physical abuse) for Glenn’s striking the two clerks with the air gun. If OV 7 had been scored at zero points, the guidelines would have recommended a minimum sentence in the range of 81 to 135 months. In explaining his decision, the judge said:
“Clearly, they used a weapon. They struck, you know, several of the victims with the gun. Certainly, the victims — they could have certainly done this armed robbery, number one, without even using what appeared to be a sawed-off shotgun; and, moreover, striking at least one, or if not both of the clerks, with the weapon in the course of the thing. So I think it’s properly scored under OV-7.”
Glenn appealed, limited to the trial judge’s scoring of OV 7, and in a published per curiam opinion, the Court of Appeals vacated Glenn’s sentences, saying that the trial judge should have scored “zero points” for OV 7.
“Fifty points can be assessed under OV 7 for ‘sadism, torture, or excessive brutality or conduct designed to substantially increase the fear and anxiety a victim suffered,’” the appellate panel explained, citing MCL 777.37(1)(a). The prosecutor argued that Glenn, by hitting both clerks in the head with what appeared to be a shotgun, had engaged in “conduct designed to substantially increase the fear and anxiety” the victims suffered, the panel noted.
The panel rejected the prosecutor’s argument that Glenn’s actions were “designed to substantially increase the fear and anxiety” of the victims. While Glenn’s conduct was “certainly illegal and reprehensible,” it was not “savage or inhuman” compared to the conduct of others who perpetrate armed robberies or felonious assaults, the Court of Appeals said.
Moreover, Glenn’s conduct was not egregious enough to “substantially increase” the victims’ fear, the panel opined. “‘Substantial’ means ‘of ample or considerable amount, quantity, size, etc.’ … ‘Ample,’ in turn, is defined as ‘plentiful . . . liberal; copious….’ Therefore, defendant’s conduct would have substantially increased the victims’ fear only if the conduct was designed to cause copious or plentiful amounts of additional fear.”
And, although “conduct designed to substantially increase the fear and anxiety a victim suffered” has its own meaning independent of the other terms in the statute – “sadism, torture, or excessive brutality” — “it should nonetheless be construed to cover similarly egregious conduct,” the Court of Appeals said. “The conclusion that the Legislature intended OV 7 to apply only in egregious cases is also supported by the fact that assessing 50 points under OV 7, on its own, is enough to raise an offender’s OV level to III, considerably increasing a criminal’s minimum-sentence range.” Too, an overly broad reading of the term “conduct designed to substantially increase the fear and anxiety a victim suffered” would render the other terms in the list unnecessary, the panel reasoned.
Previous Court of Appeals decisions had upheld 50 points for OV 7 only in cases involving “specific acts of sadism, torture, or excessively brutal acts by the defendant,” the appellate panel said. Moreover, because using a dangerous weapon is an element of armed robbery and felonious assault, “the presence of a weapon and the use of a certain amount of force or intimidation must be discounted for purposes of OV 7. All such crimes against a person involve the infliction of a certain amount of fear and anxiety. OV 7 is designed to respond to particularly heinous instances in which the criminal acted to increase that fear by a substantial or considerable amount.”
Glenn’s “actions were undoubtedly designed to cause fear and anxiety in his victims,” and he “may have used more violence that would be strictly necessary to complete an armed robbery,” the Court of Appeals stated. “However, because OV 7, by its own terms, is to be scored at 50 points only for conduct ‘designed to substantially increase the fear and anxiety’ of a victim, we conclude that zero points should have been assessed for OV 7.”
The prosecutor appealed, and in an order dated June 8, 2012, the Supreme Court granted leave to appeal. The Court directed the parties to “address whether the trial court erroneously assessed 50 points for offense variable 7 (OV 7), MCL 777.37(1)(a), for committing assaultive acts beyond those necessary to commit the offense.”

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