Ineffective assistance of counsel.

In People v Gioglio, __ Mich __ (#143136, 9/21/2011) the Michigan Supreme Court reiterated that when claims of ineffective assistance present a mixed issue of fact and constitutional law, the trial court must first determine the facts and then decide whether those facts demonstrate a violation of the defendant’s constitutional right to the assistance of counsel. People v Lewis (On Remand), 287 Mich App 356 (2010). “When a defendant asserts that his assigned lawyer is not adequate or diligent . . . the judge should hear his claim and, if there is a factual dispute, take testimony and state his findings and conclusion.” People v Ginther, 390 Mich 436 (1973).  A trial court’s factual findings are reviewed for clear error and its ultimate determination de novo. People v Petri, 279 Mich App 407 (2008).).

If counsel is a reasonably effective advocate, he meets constitutional standards irrespective of his client's evaluation of his performance. Id. at 657 n 21, citing Jones v Barnes, 463 US 745 (1983) and Morris v Slappy, 461 US 1 (1983).  In People v Frazier, 478 Mich 231 (2007), the Michigan Supreme Court clarified how to apply the Cronic/Strickland standards: “[t]he Cronic test applies when the attorney's failure is complete, while the Strickland test applies when counsel failed at specific points of the proceeding.”  In Frazier, the Supreme Court refused to apply Cronic and presume prejudice when the defense counsel advised defendant to waive his right to counsel at the police interrogation and failed to attend the interrogation with the defendant. Id. at 244-245.

In this case, because counsel’s failure to test the prosecution’s case was not complete, the analysis is under the Strickland ineffective assistance of counsel test. The right to effective counsel is guaranteed by the United States and Michigan Constitutions. US Const, Am VI; Const 1963, art 1, § 20; Strickland, 466 US 686. To establish ineffective assistance of counsel, defendant must show that: (1) counsel’s performance was below an objective standard of reasonableness under prevailing professional norms, (2) there is a reasonable probability that, but for counsel’s error, the result of the proceeding would have been different, and (3) the resultant proceedings were fundamentally unfair or unreliable. People v Toma, 462 Mich 281, 302 (2000); People v Pickens, 446 Mich 298 (1994). Unlike Cronic, the Strickland test addresses specific errors made by counsel, requiring defendant to show that not only was counsel’s performance deficient but also that the defective performance was prejudicial. Strickland, 466 US at 6; Mitchell, 454 Mich at 157. 

Effective assistance of counsel is presumed and defendant bears a heavy burden of proving otherwise. Rockey, 237 Mich App at 76. Defendant must overcome a strong presumption that counsel’s performance constituted sound trial strategy. People v Riley (After Remand), 468 Mich 135, 140 (2003). Decisions as to when to make an opening statement, what evidence to present, whether to call or question witnesses, and on what to focus in closing argument are presumed to be matters of trial strategy, People v Horn, 279 Mich App 31 (2008); People v Dixon, 263 Mich App 393 (2004), and declining to raise objections to procedures, evidence, or argument can also be sound trial strategy, People v Unger, 278 Mich App 210 (2008). “This Court will not substitute its judgment for that of counsel regarding matters of trial strategy, nor will it assess counsel’s competence with the benefit of hindsight.” People v Garza, 246 Mich App 251 (2001).

Requests for Attorney fees in domestic relations cases, and maybe otherwise.

In Bowers v Bowers, Unpub per curiam opinion, (9/20/2011, #298268) the Court of Appeals addressed requests for attorney fees in a domestic relations matter.  I am considering requiring a separate (evidentiary) hearing to address any request for attorney fees.

In domestic relations cases, attorney fees are authorized by both statute, MCL 552.13, and court rule, MCR 3.206(C).” Reed v Reed, 265 Mich App 131, (2005). MCR 3.206(C) provides: (1) A party may, at any time, request that the court order the other party to pay all or part of the attorney fees and expenses related to the action or a specific proceeding, including a post-judgment proceeding. (2) A party who requests attorney fees and expenses must allege facts sufficient to show that (a) the party is unable to bear the expense of the action, and that the other party is able to pay, or (b) the attorney fees and expenses were incurred because the other party refused to comply with a previous court order, despite having the ability to comply.

MCL 552.13(1), authorizes as follows the imposition of fees and costs in divorce actions: In every action brought, either for a divorce or for a separation, the court may require either party to pay alimony for the suitable maintenance of the adverse party, to pay such sums as shall be deemed proper and necessary to conserve any real or personal property owned by the parties or either of them, and to pay any sums necessary to enable the adverse party to carry on or defend the action, during its pendency. It may award costs against either party and award execution for the same, or it may direct such costs to be paid out of any property sequestered, or in the power of the court, or in the hands of a receiver.  In addition, this Court has held that attorney fees are “authorized when the party requesting payment of the fees has been forced to incur them as a result of the other party’s unreasonable conduct in the course of litigation.” Stackhouse v Stackhouse, 193 Mich App 437, 445 (1992); Milligan v Milligan, 197 Mich App 665, 671 (1992). “[T]he attorney fees awarded must have been incurred because of misconduct.” Reed, 265 Mich App at 165.

When requested attorney fees are contested, it is incumbent on the trial court to conduct a hearing to determine what services were actually rendered, and the reasonableness of those services. Miller v Meijer, Inc, 219 Mich App 476, 479-480 (1996); Petterman v Haverhill Farms, Inc,125 Mich App 30, 33 (1983).

The Supreme Court in Smith v Khouri, 481 Mich 519 (2008) set forth a process for how a court should determine the reasonableness of requested attorney fees. The Smith Court first noted that the party requesting fees bears “the burden of proving the reasonableness of the requested fees.” Smith, 481 Mich at 528–529. The trial court should “consider the totality of special circumstances,” applying as appropriate the six factors listed in Wood v Detroit Auto Inter–Ins Exch, 413 Mich 573, 588 (1982), and the eight factors listed in Michigan Rules of Professional Conduct (MRPC) Rule 1.5(a). The factors overlap and include “the professional standing and experience of the attorney,” “the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly,” and “the expenses incurred.” Id. at 529–530, quoting Wood, 413 Mich at 588, MRPC 1.5(a).  The Smith Court held that, in determining whether requested attorney fees are reasonable, the trial court should begin its analysis by determining the fee customarily charged in the locality for similar legal services.... In determining this number, the court should use reliable surveys or other credible evidence of the legal market. This number should be multiplied by the reasonable number of hours expended in the case.... The number produced by this calculation should serve as the starting point for calculating a reasonable attorney fee.... [Id. at 530–531.]  The Court “emphasize[d]” that “‘the burden is on the fee applicant to produce satisfactory evidence—in addition to the attorney's own affidavits—that the requested rates are in line with those prevailing in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.’” Id. at 531, quoting Blum v Stenson, 465 US 886, 895 n 11 (1984). This “satisfactory evidence” of customary fees “can be established by testimony or empirical data found in surveys and other reliable reports.” Id. at 531–532. Mere “anecdotal statements” are not sufficient. Id. at 532.

To determine “the reasonable number of hours expended in the case,” the attorney requesting fees “must submit detailed billing records, which the court must examine and opposing parties may contest for reasonableness.” Id. The burden of establishing the reasonableness of the hours reported lies with the attorney requesting fees. If the other party raises a factual dispute regarding the reasonableness of the hourly rates or the hours billed, “the party opposing the fee request is entitled to an evidentiary hearing to challenge” the evidence submitted by the attorney requesting fees and to present contrary evidence. Id. Only after the trial court has determined a reasonable fee by multiplying the reasonable hourly rate by a reasonable number of hours billed, should the court “consider the other factors and determine whether they support an increase or decrease in the base number.” Id. at 533.

Judge Hoort sentencings

As a starting point, my ‘norm’ is to impose five years probation if the guidelines allow for a prison sentence, and the person is not going to prison.  If the guidelines are in the x to 17 range, four years probation may be appropriate.  If the guidelines are in the x to 11 range, three years probation may be appropriate.  Two years probation seems appropriate for the significantly less than one year range offender (i.e. x to 9); and one year probation would seem to be appropriate for defendants who really don't have any issues to address on probation; or possibly no probation.  I sometimes use the possible maximum sentence plus the sentence guidelines as a reference point whether somebody should even be on probation.  Unless there are substance abuse, assaultive or sexual conduct issues ‘requiring’ probation, a low sentence guidelines and/or low possible maximum sentence may be a sufficient indicator that probation is not appropriate.

Unless there is significant restitution, I don’t necessarily need to put somebody on probation or have probation extended to collect restitution.  We have pretty good collections programs otherwise in both counties.

I do not like to ‘warehouse’ a defendant in jail for one year.  If probation is imposed that means saving approximately two months jail for sanctions.  Otherwise, if it’s going to be a one year incarceration, my preference is the prison sentence.  Especially now that there are re-entry programs available to parolees and often in excess of what we can offer via probation.

If probation, and there are non-marijuana substance abuse issues I generally require NA meetings at a minimum of 2 or 3 times per week and random drug testing at a minimum of 2 or 3 times per week as directed by the field agent.  If its marijuana, random drug testing two times per month.

I am more and more requiring in all my probationary terms a curfew whereby defendant must be in his/her approved residence between the hours of 11 p.m. and 6 a.m. unless excused by first obtaining written permission from the field agent.  (And I’m wondering if it should start at 10 p.m.) and that a probationer cannot use or possess without a court order any controlled substance or substance for hallucinatory purposes or drug paraphernalia; or be with anyone you know to use or possess these items.  If a medical marijuana exception is actually medically appropriate (and we do have two or three such cases), my ‘norm’ is to require the same to be in tablet form.

I do like to use SCRAM and/or tether as a means of keeping a probationer on the ‘straight and narrow’.

I do not like to do community service if there is any chance the probationer may take advantage of an innocent third party. 

I generally do not mind giving a defendant the benefit of HYTA, 7411 or DSA if through no fault of their own, defendant was not able to comply with all of the terms of probation.  This does require a good faith effort by the defendant to comply with all required terms.  Many times the issue is non-payment.  Unless payment was a 'mandatory requirement' (which I sometimes do), the above rule applies.  What happens then is that if the defendant, through no fault of their own, has made a good faith effort, but been unable to pay off all of the monies owed, s/he will receive a satisfactory discharge, but the case will not be actually dismissed until all monies are paid.

I generally don’t allow a defendant to do community service in lieu of payment unless they are in the

Mental Health Court

.  I do sometimes also make an exception if so convinced by the assigned probation officer.  My philosophy is that if a person can do community service, he/she can also work.  It might be odd jobs or menial labor, but then that is also maybe an appropriate consequence for their actions.

I generally do not allow for an early release from jail except as recommended by the PSI writer or if by sentence agreement, but sometimes to make an exception for my MHC probationers.  The idea being what is in the best interest of this person with mental health issues and what is necessary or appropriate for the protection of the community.

As a general rule before I allow for an early discharge from probation for an offense involving CSC or a crime of violence, I would ask that the victim and prosecutor be given an opportunity for input.

Finally, I can be wrong.

Divorce trial related rules in my court

I try to remember what it was like being a family law practioner by allowing discovery up until seven days before trial; briefs three days before trial; information from the internet; expansion of the seven day order time frame, etc. 

However, the highly contentious nature of divorce proceedings mandates other rules to help me make the right decision.  i.e. If there is going to be a trial, I do have some very specific rules in my scheduling order . . .

If there are more than ten items of disputed property, the parties shall prepare a joint list of disputed property, with any agreed upon values and encumbrances, for entry as court Exhibit #1.  If there is more than ten items of unsecured debt to be divided, the parties shall prepare a joint list of unencumbered debt to be divided, with any agreed upon dollar amount owed, for entry as Court Exhibit #2.

Non-compliance with requested discovery of exhibits or witnesses by this date shall bar introduction of said exhibits or witnesses at trial.

Three (3) days before trial the parties shall file with the judge’s office and opposing party a brief covering all issues to be decided; applicable law; statements to be introduced under MRE 803(24); Court Exhibits (if applicable) and proposed division of property and debt, with proposed findings of fact regarding their assets and incomes, including mathematical calculations.  Exhibits shall be attached to the Judge’s copy and the opposing party’s brief but, to avoid identity theft, shall not be filed with the court.

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This type of procedural requirements were recently upheld in Engerman v Engerman, unpublished opinion per curiam of the Court of Appeals, issued [7/7/2011] (Docket No. 295687).  In Engerman the Court of Appeals remanded to the circuit court to make specific findings of fact regarding the value of the financial accounts encompassed in the property division.  In do so the Court recommended the trial court order: “both parties to prepare detailed proposed findings of fact regarding their assets and incomes, including mathematical calculations.”

Finally, please remember that non-compliance can result in loss of evidence, costs being assessed, adjournment of the trial or other delay.

Government Liability for its employees under respondeat superior.

In Hamed v Wayne County and Wayne County Sheriff’s Department, __ Mich __ (#139505, 7/27/2011) the Michigan Supreme Court considered the scope of an employer’s vicarious liability for quid pro quo sexual harassment affecting public services under Michigan’s Civil Rights Act (CRA).     In Hamed, the Supreme Court held that Wayne County and its sheriff’s department may not be held vicariously liable for a civil rights claim under MCL 37.2103(i) based on a criminal act of a deputy sheriff committed during working hours but plainly beyond the scope of his employment under traditional principles of respondeat superior.

The doctrine of respondeat superior is well established in this state: An employer is generally liable for the torts its employees commit within the scope of their employment.  It follows that “an employer is not liable for the torts . . . committed by an employee when those torts are beyond the scope of the employer’s business.”  This Court has defined “within the scope of employment” to mean “‘engaged in the service of his master, or while about his master’s business.’” Independent action, intended solely to further the employee’s individual interests, cannot be fairly characterized as falling within the scope of employment.  Although an act may be contrary to an employer’s instructions, liability will nonetheless attach if the employee accomplished the act in furtherance, or the interest, of the employer’s business.

The general rule that an employer is not liable for acts of its employee outside the scope of its business, however, does not preclude vicarious liability in every instance.  This Court has consistently recognized that an employer can be held liable for its employee’s conduct if “the employer ‘knew or should have known of [the] employee’s propensities and criminal record’” before that employee committed an intentional tort.  This inquiry involves an analysis of whether an employer had (1) actual or constructive knowledge of prior similar conduct and (2) actual or constructive knowledge of the employee’s propensity to act in accordance with that conduct. Under this two-pronged approach, the conduct at issue may be so close in time to prior similar conduct that knowledge under the first prong gives rise to a valid inference that the conduct was foreseeable under the second prong. Conversely, if an employee’s actions were temporally distant and the employee’s recent record suggested a change in character, foreseeability would not be established.  

In summary, an employer’s liability for the criminal acts of its employees is limited to those acts it can reasonably foresee or reasonably should have foreseen.

Juvenile sentencing hearing.

A juvenile sentencing hearing is required under MCR 6.931 except when an adult sentence is mandatory because the juvenile has been convicted of an offense listed in MCL 769.1(1)(a)-(l).

MCL 769.1(3) provides that unless a juvenile is required to be sentenced in the same manner as an adult the court shall conduct a hearing at the juvenile’s sentencing to determine if the best interests of the public would be served by placing the juvenile on probation and committing the juvenile to an institution or agency described in the youth rehabilitation services act, . . . or by imposing any other sentence provided by law for an adult offender. Except as provided in subsection (5), the court shall sentence the juvenile in the same manner as an adult unless the court determines by a preponderance of the evidence that the interests of the public would be best served by placing the juvenile on probation and committing the juvenile to an institution or agency described in the youth rehabilitation services act . . . .

Under MCR 6.931(C) if a juvenile sentencing hearing is required, the judge must advise the prosecuting attorney, the juvenile, and the attorney for the juvenile on the record immediately following conviction of the juvenile by a guilty plea or verdict of guilty that a hearing will be conducted at sentencing to determine whether to sentence the juvenile as an adult or to place the juvenile on juvenile probation and commit the juvenile to state wardship as though a delinquent. . . .

There is nothing in the statute or court rule that makes an exception for a juvenile who has pleaded guilty as part of a sentencing agreement.

Homeless registration under the SORA

In People v Dowdy, __ Mich __ (#140603, 7/11/2011) the Michigan Supreme Court held that homelessness is not a bar to compliance with the Sex Offender Registration Act (SORA) because homelessness does not preclude an offender from entering a police station and reporting to a law enforcement agency regarding the offender’s residence or domicile. 

The SORA is a conviction-based registration statute that requires individuals convicted of certain “listed offenses” to register as sex offenders.  An offender’s registration disclosure includes information regarding where the offender lives, identifying information, and a summary of the offender’s convictions. Offenders are also required to sign a form acknowledging their obligations as sex offenders under SORA.

The SORA defines “residence” for “registration and voting purposes” as that place at which a person habitually sleeps, keeps his or her personal effects, and has a regular place of lodging. If a person has more than 1 residence, or if a wife has a residence separate from that of the husband, that place at which the person resides the greater part of the time shall be his or her official residence for the purposes of this act.  Thus, a person’s “residence” under SORA is a combination of three things: that place where a person (1) habitually sleeps, (2) keeps personal effects, and (3) has a regular place of lodging.

It is entirely consistent with the SORA for a sex offender to identify, for example, a vacant house or a park as a “residence” if it is, in fact, “that place at which” the sex offender “habitually sleeps, keeps his or her personal effects, and has a regular place of lodging.”

Unlike “residence,” “domicile” is not defined in SORA. Although this Court has, in several circumstances, treated the terms “residence” and “domicile” as synonymous, the terms were accorded different meanings under the common law.  Michigan courts have defined domicile” as “‘that place where a person has voluntarily fixed his abode not for a mere special or temporary purpose, but with a present intention of making it his home, either permanently or for an indefinite or unlimited length of time.’” Similarly, a domicile is “the place where a person has his home, with no present intention of removing, and to which he intends to return after going elsewhere for a longer or shorter time.” More significant to the instant case is that it has long been the law of this state that “[e]very person must have a domicile somewhere.” A person may have only one domicile, which continues until the person acquires a different one.

Even if a homeless sex offender with transient sleeping arrangements cannot establish a “residence” as SORA defines it, the offender is still capable of reporting sufficient information regarding where the offender lives for purposes of identifying a “domicile.” Although it may be difficult to verify where an offender is domiciled, as noted, difficulties in verifying an offender’s information do not excuse the offender from complying with SORA’s requirements.  Moreover, SORA enables the Michigan State Police to respond to such situations by empowering it to “specify other satisfactory proof of domicile or residence.” Indeed, the Michigan State Police has exercised this

statutory authority by promulgating an order that permits homeless sex offenders to register their domicile as “123 Homeless.” An offender thus satisfies the offender’s statutory obligation by appearing at a law enforcement agency and advising the authorities of where the offender lives. Pursuant to SORA and the Michigan State Police order, the law enforcement agency can accept as “satisfactory proof” of the offender’s “domicile” the state, city, zip code, and county in which the offender lives and must add that information to the “123 Homeless” designation in the registry. Thus, when the homeless sex offender’s “domicile” is registered as “123 Homeless” in the city in which the offender lives, that is the offender’s statutory domicile for purposes of SORA.