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             Defendant Timothy Horton was charged with breaking and entering with the intent to commit larceny as a fourth habitual offender. Horton agreed to plead no contest to the charge, in exchange for being charged as a second habitual offender. At the sentencing hearing, Horton moved to withdraw his plea, claiming that it was not freely, knowingly, and voluntarily made. His motion was denied and he was sentenced.

            Mr. Horton requested the appointment of appellate counsel who filed an Application for Leave to Appeal and Motion to Remand. The brief and motion claimed Defendant’s trial counsel was ineffective for:

(1) Failure to make a motion to dismiss for violation of a speedy trial,

(2) Failure to inform defendant if he pled no contest unconditionally without reserving the right to appeal issues involving speedy trial violations by the trial court, it constituted a plea waiver of these issues.

            The defendant argued that his plea was not knowing, intelligent, and voluntary and it was error to deny his motion to withdraw his plea prior to sentencing. In support of the Motion to Remand, Mr. Horton signed a sworn statement asserting that his trial counsel never informed him that an unconditional no contest plea would waive his rights to raise the violation of his speedy trial rights and his rights to the effective assistance of counsel on appeal. In addition, Mr. Horton would not have accepted the plea offer unless it was a conditional plea offer that allowed him to raise the speedy trial issue on appeal. Absent a conditional plea offer, Mr. Horton would have gone to trial.

            The Court of Appeals denied the motion to remand and denied leave to appeal. Mr. Horton filed a pro per Application for Leave to Appeal to Supreme Court. On December 9, 2015, the Supreme Court granted leave to appeal, People v Horton, 498 Mich 932, (2017) (Docket 150815), on the following issues:

            The Supreme Court, on July 25, 2017, after reviewing the briefs and oral arguments, remanded the case to the Court of Appeals for consideration. Stating that:

“A defendant who has entered a plea does not waive his opportunity to attack the voluntary and intelligent character of the plea by arguing that his or her counsel provided ineffective assistance during the plea bargaining process.”

            On remand, the Court of Appeals was to consider: (1) whether a speedy-trial claim is “nonjurisdictional” (2) if not, whether, by entering a plea of no-contest, the defendant waived his right to argue that his counsel was ineffective for failing to assert his constitutional right to a speedy trial before he entered his plea, and (3) whether the defendant’s no-contest plea was involuntarily entered based on his claim that his counsel provided ineffective assistance when counsel failed to advise the defendant during the plea proceedings that he would waive his right to raise his speedy-trial claim on appeal.

            In Horton’s brief on appeal, he asked the court to remand his case to the trial court to allow him to withdraw his plea. The parties filed a joint motion to remand the case to the trial court, which the Court of Appeals granted. This case may be one to watch since the questions raised by the Supreme Court have not been answered. 

             
                The International Child Abduction Remedies Act and the Hague Convention are both in place to ensure that one parent is unable to abduct the children from the other parent, alienating them from their children. Ahmed v Ahmed, 867 F3d 682 (2017), is a case looking at both of these laws. The father seeks to have his children returned to the United Kingdom from the United States. For the father to obtain a remedy both countries must be part of the Hague Convention–and they are. Then under the Hague Convention there are two methods to determine the child’s proper habitual residence.

               The preferred method by the court is the “acclimatization standard.” This is where the aspects of the child’s life are considered to attempt to determine whether the child would consider themselves acclimated to one place over another. The first thing to analyze under this standard is whether the child is old enough to form meaningful relationships and is actually capable of acclimating to a certain place over another. Other factors to consider under the acclimatization standard is the period a child spends in a certain location, academic activities, social engagements, sports programs, etc.. This standard will not always work because, as alluded to before, some children are not old enough to have these meaningful relationships. When the child is at such a young age, the court will then analyze the second test, the parents’ shared intent. To determine the parents’ shared intent, it must be clear what the intent actually is. The reason these cases are generally in the court is because the parent’s intentions for the child differs. In Ahmed, the United States District Court denied the father’s request to have the children returned to the United Kingdom because he failed to meet his burden of proof showing that either the children were acclimated to the United Kingdom, or that the intent of both parents was that the children move to the United Kingdom. The district court did not analyze the intent of the parents, but only the acclimatization standard. In analyzing this standard, the district court focused mainly on the length that the children had stayed in a single location and stated that the seven to eight weeks in the United Kingdom was not sufficient time to have the children returned there.

               On appeal to the Sixth Circuit, the father argued that the intent of the parents should have been analyzed when clearly the infant children were not old enough to be acclimated to one location over another. The Sixth Circuit went through the analysis of the parents’ shared intent for the children. The father argued that the married couple had agreed in 2013 to move to the United Kingdom together before the children were conceived. The marriage then fell apart in February 2014 and at this point the intent was not clear. The Sixth Circuit concluded that because the mother had her valuable possessions in the United States and, was still maintaining her optometrist license in the United States, she did not intend to stay in the United Kingdom and that the father failed to meet his burden of proof that the United Kingdom was the children’s habitual residence. The Sixth Circuit, thus, affirmed the district court.

             Recently, the Speaker Law Firm obtained a published opinion on the post-judgment of divorce case of O’Leary v O’Leary,  ___ Mich App ___ (Docket 333519), which has broad application beyond the family law context.

In O’Leary, the parties’ judgement of divorce required the marital home to be sold and “the indebtedness or profit shall be shared equally.” The husband finally sold the home 6 years later for a loss. The husband waited for several years ­­­––as he was paying off the short sale–– before he sought to enforce the judgement of divorce by seeking reimbursement from his ex-wife for her one-half share of the indebtedness. The wife argued that the motion to enforce was barred by the 10-year statute of limitations; the husband argued that the time to enforce did not begin to accrue until he sold the home for a loss. The trial court agreed with the wife and denied the husband’s motion to enforce. 

The Court of Appeals examined the interplay of MCL 603.5809 (limitations) and MCL 600.5827 (accrual).

Section 5809 provides:

A person shall not bring or maintain an action to enforce a noncontractual

money obligation unless, after the claim first accrued to the person, …the person commences the action within the applicable period of time prescribed by this section…[T]he period of limitations is 10 years for an action founded upon a judgment…from the time of the rendition of the judgment or decree… [Emphasis added by Court of Appeals opinion]

Section 5827 provides:

Except as otherwise expressly provided, the period of limitations runs from the

time the claim accrues. The claim accrues at the time provided in [MCL

600.5829 to MCL 600.5858], and in cases not covered by these sections the claim

accrues at the time the wrong upon which the claim is based was done regardless

of the time when damage results. [Emphasis added by Court of Appeals opinion]

The Court of Appeals held in a published opinion that the judgement of divorce was subject to a 10-year statute of limitations contained in MCL 600.5809. However, the Court of Appeals concluded that the accrual provision of MCL 600.5827 triggered the 10-year limitation period, such that the husband’s claim was timely filed under 600.5809 because he filed within 10 years of selling the house for a loss. 

           
             Defendant Jeffrey Titus, convicted in 2002 by jury trial of the first-degree premeditated murders of Doug Estes and James Bennett, likes to spend time in litigation. We first wrote about him in Estes v Titus (July 2008) where the wife of Estes was trying to collect a wrongful death judgment from Titus who had transferred all his assets to his wife when they divorced. The Supreme Court ruled - with a caveat - that a property division in a divorce could be the subject of a Uniform Fraudulent Transfer Act action. Speaker Law Firm wrote the amicus brief for the Family Law Section (the Supreme Court disagreed with our position, but the concurring opinion by Marilyn Kelly did agree with us).

            In People v Titus. No. 329770, posted May 4, 2017, defendant Titus filed the latest of his appeals. The MCOA affirmed his convictions in 2004 in People v Titus, (Docket No. 243642). In 2014, defendant filed a motion for relief from judgment in the trial court. Defendant appealed when his motion for relief was denied. People v Titus, unpublished order of the Court of Appeals, entered March 24, 2016 (Docket No. 329770).

            In this appeal, the defendant raised the issue of ineffective assistance of counsel. The court wrote that to prove ineffective assistance of counsel, the defendant must show that counsel’s performance fell below objective standards of reasonableness and that, but for counsel’s deficient performance, there is a reasonable probability that the result of the proceedings would have been different. Effective assistance of counsel is presumed and the defendant bears a heavy burden of proving otherwise.

            Since the defendant already filed a motion for relief from judgment which was denied, the court noted that it could not grant this motion if it alleged grounds for relief that could have been raised on direct appeal from the defendant’s conviction, unless the defendant demonstrates:

• “Good cause” for the failure to raise the grounds for relief on appeal, and 
• “Actual prejudice” from the alleged irregularities.

            Titus argued that he satisfied the good-cause requirement because appellate counsel was ineffective for failing to raise the issue of defense counsel’s ineffective assistance of counsel on direct appeal. The test, wrote the court, for ineffective assistance of appellate counsel is the same as that applicable to a claim of ineffective assistance of trial counsel. Thus, a defendant must show that appellate counsel’s decision not to raise an issue on appeal fell below an objective standard of reasonableness and prejudiced the appeal.

            The defendant raised several issues about the trial as examples of the ineffectiveness of the trial counsel and, by extension, appellate counsel. The court carefully reviewed each claim finding:

“Because defendant has failed to establish that defense counsel’s performance was deficient, appellate counsel was not ineffective for failing to raise the claims of ineffective assistance on direct appeal. Defendant has failed to establish good cause, MCR 6.508(D)(3)(a), and defendant is not entitled to relief on his claims of ineffective assistance of counsel.”

            Defendant also argued that the prosecution violated Brady v Maryland, 373 US 83, (1963) by failing to disclose that Det. Mattison had theorized that two shooters perpetrated the murders. To establish a Brady claim the defendant must show:

            The court found no Brady violation noting that not every stray thought of the detectives of the case need to be revealed by the prosecution. The court decided that two-shooter theory was not required to be disclosed.

            Defendant also argued that the trial court abused its discretion in concluding that the prosecution’s character evidence and [defendant’s] offhand remarks about the killings of his co-workers somehow outweighed the new evidence of innocence. Concluding that the defendant was trying to raise an argument regarding cumulative error, the court wrote that, since defendant failed to establish that he was denied the effective assistance of counsel or that there was a Brady violation, there are no irregularities that could be combined to determine a cumulative effect of errors.
Affirmed.

             
                Ineffective assistance of counsel is an incredibly difficult burden for a criminal defendant to prove – “to establish a claim of ineffective assistance of counsel, the defendant must show that ‘counsel’s representation fell below an objective standard of reasonableness’ under prevailing professional norms and that there is a ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’” People v Gioglio, 296 Mich App 12 (2012), quoting Strickland v Washington, 466 US 668, 688, 694; 104 St Ct 2052; 80 L Ed 2d 674 (1984). People v Carver, unpublished per curiam opinion of the Court of Appeals, issued August 29, 2017 (Docket No 328157), deals with the issue of the defense attorney who had knowledge of an essential expert witness, but failed to utilize this expert.  In Carver, the mother of the victim was bathing the child when she noticed a speck of blood on the wipe used for the victim. Slip op at 1. The victim then told her mother that her brother touched her, but then changed the story to identify the defendant as the person who touched her after the mother did not seem to believe the first statement. Slip op at 1.

               Defendant was aware of an expert in child suggestibility which is the idea that when you suggest an answer that a child gave is incorrect they will give a different answer in hopes of appeasing the person asking the question. Slip op at 3. Even though this expert gave all of this information on child suggestibility, defense counsel chose not to call this expert as a witness. Defense counsel defended himself stating “he preferred to highlight the discrepancies between the victim’s various statements and emphasize that children can lie.” Slip op at 7. Defense counsel modeled his trial strategy around the fact that the story of the victim was continually changing. This is an appropriate trial strategy as long as the proper investigation was done to determine it to be the best strategy. Defense counsel gave testimony about his preparation for trial, which included: consulting with other lawyers from his firm, reviewing forensic interview protocols, and based on this chose to utilize his trial strategy he had developed. The problem with his strategy arose when he acknowledged that there were crucial aspects of the case that he had not investigated fully, “he could not state the distinction between a child lying and a child relating a false memory, and only knew one factor that implicated suggestibility.” Slip op at 8. This suggests that defense counsel had not properly investigated the issue because had he done so this distinction would have been easily identified and understood.

               Shortcomings do not necessarily mean that there will be a valid claim for ineffective assistance of counsel. Not only must the defendant prove that counsel made professional error, but you also must show that the professional error caused an unfavorable result to the client. It was fairly easily proven that defense counsel did not properly investigate and hold himself to the objective professional standard. This unprofessional error could be harmless if there is a determination made that regardless of the error the outcome would have been the same.

               The Court of Appeals held that the error may have changed the outcome of the case. With the testimony of an expert, defense counsel could have adequately argued that the child’s accusations were false and that the jury could have possibly resulted in a favorable outcome had this information been presented and argued. According to the Court of Appeals, “but for counsel’s unprofessional conduct the outcome could have been different.” Slip op at 12.

              The reason this is such a hard burden to prove is generally counsel has the ability to determine what their strategy will be so long as they complete a full investigation into the circumstances surrounding the case. This is a sense of professional leeway allowing the attorney to decide with their professional judgment what the best approach to the case will be. This allowance is obtained through the many years of schooling, and professional conduct expected for a lawyer.

MCR 2.613(B) sets out the limitations on error-correction by one judge of the orders of

another judge and provides the following:

A judgment or order may be set aside or vacated, and a proceeding under a judgment or order may be stayed, only by the judge who entered the judgment or order, unless that judge is absent or unable to act. If the judge who entered the judgment or order is absent or unable to act, an order vacating or setting aside the judgment or order or staying proceedings under the judgment or order may be entered by a judge otherwise empowered to rule in the matter.

Morrissette v Doe, (DocketNo. 331941), (a no-fault case) is an interlocutory appeal concerning a procedural issue, namely, a reversal by one judge of the orders of another under MCR 2.613(B)

FACTS:

            Defendant State Farm Mutual Automobile Insurance Company (State Farm) appealed by leave the orders of Wayne Circuit Judge Susan L. Hubbard which granted motions to quash State Farm’s re-notice of the taking of depositions on non-parties Lawrence Falzon and Clem Barney.

            The case was originally assigned to Wayne Circuit Judge Lita M. Popke, but, when she took on the business court docket, her civil docket was reassigned to Judge Hubbard. Judge Popke had ordered Falzon to appear for a deposition, but Judge Hubbard concluded that the deposition was irrelevant and granted Falzon’s motion to quash the taking of his deposition. Judge Hubbard also granted Barney’s motion to quash on the same grounds. Judge Popke had not expressly ordered Barney to appear for a deposition but she had ruled that his role in the case was relevant.

            The only question raised on appeal is whether Judge Hubbard had the authority to reverse or rescind Judge Popke’s earlier orders.

            The Michigan Court of Appeals (MCOA) said “yes” concluding that Judge Hubbard did indeed possess such authority.

Standard of Review:

            The interpretation and application of court rules and the scope of a court’s powers are
questions of law subject to de novo (anew) review. A trial court’s decision regarding discovery is reviewed for an abuse of discretion. The motion to quash the taking of Falzon’s deposition is a motion to reconsider Judge Popke’s earlier order granting State Farm’s motion to show cause; in that context, the trial court’s decision to grant the motion is reviewed for an abuse of discretion.

Analysis:

            The MCOA began its discussion stating the purpose of MCR 2.613(B) is “to ensure that the motion at hand is before the judge most qualified to rule and to prevent so-called “judge shopping,” which “ ‘would obviously detract from the dignity and stability of judicial action . . . .’ ” Clemons v Detroit Dep’t of Transp, 120 Mich App 363, 364. The court concluded that because the parties had no impact on the re-assignment of Judge Popke’s cases, there was no evidence of “judge shopping.”

            Considering the issue of whether a judge can change an order, the MCOA cited MCR 2.119(F)(3) which gives the trial court, until a final order is issued, the discretion to reconsider a prior decision and determine it was mistaken. In this case, the order is not final and thus can be reconsidered.

            The MCOA also wrote that because “Judge Popke’s entire civil docket was transferred to another judge or judges, it is reasonable to conclude that Judge Popke was “absent or unable to act,” thus satisfying the requirements of MCR 2.613(B).

            The court concluded that Judge Hubbard, as successor to Judge Popke through reassignment, had “authority to revisit and reverse the earlier order issued by Judge Popke because no

appellate court had affirmatively ruled on Judge Popke’s order and because the case was still

pending with no final order issued.”

Affirmed.