The CSC requirement of Lifetime monitoring as it relates to a knowing, intelligent and understanding plea

In People v Cole, __ Mich App __ (Unpub, #298893, 3/15/2011) defendant plead no contest two counts of second-degree criminal sexual conduct (CSC 2^nd) under MCL 750.520c(1)(a) (child under 13 years of age) pursuant to a sentence agreement of a “five year cap on the minimum as to all charges” and concurrent sentences. Defendant was sentenced accordingly. 

However, MCL 750.520n required also that defendant, as a person convicted under section 520b or 520c for criminal sexual conduct committed by an individual 17 years old or older against an individual less than 13 years of age, be sentenced to lifetime electronic monitoring.

On appeal the Court of Appeals remanded the case to the trial court and ordered that defendant be afforded an opportunity to withdraw his plea of no contest to the two charges of CSC II because he was not advised of the lifetime electronic monitoring aspect of his sentence and thereby he cannot be held to have entered a knowing, intelligent, and understanding plea.  (The sentence to lifetime electronic monitoring was not included in the announced sentence agreement and thereby exceeded the Cobbs agreement.)

The key seems to be the statutory language referring to the electronic monitoring requirement as being part of the sentence.  MCL 750.520n characterizes lifetime electronic monitoring as a sentence. The electronic monitoring was thereby not a collateral consequence of the plea or sentence, but part of the sentence.

The Court of Appeals further stated “Moreover, being on a tether or subject to a comparable device is generally regarded as an alternative to jail or prison.” leaving for another day what effect the imposition of tether, SCRAM or electronic monitoring at the time of sentencing may have on sentence agreements.

Court of Appeals asks MSC to revisit paternity issues involving a biological father.

In Snay v Vest, ___ Mich App ___ (Unpub, #293618, 11/18/2010) the Court of Appeals asked the Michigan Supreme Court to re-visit issues relating to paternity whereby a biological father does not even have standing to pursue legal recognition of his own child if the mother was married to another man.

In Snay plaintiff is the biological father of a child he fathered with defendant. Defendant is married to another man, and was married to this other man throughout her relationship with plaintiff and her pregnancy with the child. The ‘legal father’, defendant’s husband, is not present in either defendant’s life or the child’s life, nor has he been since before the biological father and defendant’s relationship. Defendant’s utilities were shut off, and two of defendant’s older children are under the jurisdiction of the probate court through guardianship. Plaintiff biological father is requesting custody of the child because he is her biological father and because he believes that defendant is not fit to parent.

The Court of Appeals held, however, under Michigan caselaw that to bring a claim for custody, plaintiff biological father must have standing. When a child is not born out of wedlock, the mother’s husband is the legal father, and the plaintiff biological father does not have standing because he is not her ‘legal father’.  He is thereby denied standing to request custody of his biological child because of the marital status of the child’s mother.

The law that denies him standing is designed to provide for children born out of wedlock and to promote the sanctity of marriage. The facts suggest that this child is neither provided for, nor is the marriage intact. But, because there has been no court determination that the child is not the product of the marriage, the biological father cannot legally request custody of his own child, even though he is willing, and possibly better able, to parent her and provide for her.

Compensation for replacement services in a no fault third party benefits action

In Johnson v Recca, __ Mich App __ (#294363, 4/5/2011) the Court of Appeals held that expenses for replacement services rendered more than three years after the date of the motor vehicle accident are compensable damages in third-party actions because replacement services expenses are “allowable expenses,” and because MCL 500.3135(3)(c) did not abolish tort liability for “[d]amages for allowable expenses . . . in excess of the daily, monthly, and 3-year limitations contained in [sections 3107 to 3110],”.