IN THE SUPREME COURT OF PENNSYLVANIA EASTERN DISTRICT CAROLEEN JAKMIAN, : No. 266 EAL 2024 : Petitioner : : Petition for Allowance of Appeal : from the Order of the v. : Commonwealth Court : : CITY OF PHILADELPHIA AND : SOUTHEASTERN PENNSYLVANIA : TRANSPORTATION AUTHORITY, : : Respondents : ORDER PER CURIAM AND NOW, this 11th day of June, 2025, the Petition for Allowance of Appeal is DENIED. Justice Dougherty files a concurring statement.
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FILED No. 24-27, Elaine Neidig, individually and on behalf of all others similarly situated v. Valley Health System June 10, 2025 released at 3:00 p.m. EDYTHE NASH GAISER, CLERK ARMSTEAD, Justice, dissenting: SUPREME COURT OF APPEALS OF WEST VIRGINIA The West Virginia Medical Professional Liability Act, West Virginia Code §§ 55-7B-1 – 12 (“MPLA”), is, by design, a broad and encompassing measure designed to govern civil actions arising from the provision, or failure to provide, adequate health care services to our citizens. The majority’s opinion in this case improperly limits the scope and coverage of the MPLA. Accordingly, I dissent from the majority’s answer to the certified question from the United States Court of Appeals for the Fourth Circuit because I believe that, by following the majority’s opinion, a plaintiff may avoid application of the MPLA by utilizing artful pleading, a result that has previously been soundly rejected by this Court. Ms. Neidig creatively couches her claims as unfair and deceptive acts and practices pursuant to the West Virginia Consumer Credit Protection Act (W. Va. Code §§ 46A-6-101 – 110), breach of contract, and unjust enrichment. What the majority opinion fails to recognize is that the petitioner’s unfair and deceptive acts and practices, breach of contract, and unjust enrichment claims are all based upon a deviation from the standard of care for a mammogram. In other words, Ms. Nedig will, essentially, have to establish a medical negligence claim in order to prevail. The majority incorrectly centers its attention, not upon the nature of the petitioner’s factual allegations, but upon her characterization of the type of damages she seeks. Additionally, the petitioner’s breach of contract claim is an anchor claim that falls within the terms of the MPLA. As such, I firmly believe that the 1 United States District Court for the Northern District of West Virginia was correct in its decision that the petitioner’s claims fall squarely within the scope of the MPLA. Because the MPLA applies to this case and the allegations in the petitioner’s complaint fall outside the one-year statute of limitations governing the MPLA, the petitioner’s complaint should be dismissed. Accordingly, I would answer the Fourth Circuit’s original certified question in the affirmative. As noted by both the majority and Justice Walker’s concurrence, for the MPLA to apply, a cause of action must fall within the Act’s definitions of “medical professional liability” and “health care.” Under the Act, “medical professional liability” is defined broadly to mean: [A]ny liability for damages resulting from the death or injury of a person for any tort or breach of contract based on health care services rendered, or which should have been rendered, by a health care provider or health care facility to a patient. It also means other claims that may be contemporaneous to or related to the alleged tort or breach of contract or otherwise provided, all in the context of rendering health care services. Id. § 55-7B-2(i) (emphasis added). The Legislature has defined the term “injury” to mean “injury or death to a patient arising or resulting from the rendering of or failure to render health care.” Id. § 55-7B-2(h). Finally, “health care,” is defined, in relevant part, as: Any act, service or treatment performed or furnished, or which should have been performed or furnished, by any health care provider or person supervised by or acting under the direction of a health care provider or licensed professional for, 2 to, or on behalf of a patient during the patient’s medical care, treatment or confinement, including, but not limited to, staffing, medical transport, custodial care, or basic care, infection control, positioning, hydration, nutrition, and similar patient services. Id. § 55-7B-2(e)(2). We have stated that a health care claim is the necessary anchor from which MPLA application flows: The “health care” claim is the “anchor;” it gets you in the door of MPLA application to allow for inclusion of claims that are “contemporaneous to or related to” that claim, but still must be in the overall context of rendering health care se
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA January 2025 Term FILED _____________________ June 11, 2025 released at 3:00 p.m. C. CASEY FORBES, CLERK No. 23-589 SUPREME COURT OF APPEALS OF WEST VIRGINIA _____________________ JACKLIN ROMEO, SUSAN S. RINE, and DEBRA SNYDER MILLER, Plaintiffs Below, Petitioners, v. ANTERO RESOURCES CORPORATION, Defendant Below, Respondent. ___________________________________________________________ Certified Questions from the United States District Court for the Northern District of West Virginia The Honorable Thomas S. Kleeh, Chief Judge Civil Action No. 1:17-CV-88-TSK-MJA CERTIFIED QUESTIONS ANSWERED _________________________________________________________ Rehearing Granted: December 31, 2024 Submitted Upon Rehearing: April 22, 2025 Filed: June 11, 2025 George A. Barton, Esq. W. Henry Lawrence, Esq. Barton and Burrows, LLC Amy M. Smith, Esq. Mission, Kansas Lauren K. Turner, Esq. Steptoe & Johnson PLLC L. Lee Javins II Esq. Bridgeport, West Virginia Taylor M. Norman, Esq. Bailey, Javins & Carter, L.C. Elbert Lin, Esq. Charleston, West Virginia Hunton Andrews Kurth LLP Richmond, Virginia Howard M. Persinger, III Daniel T. Donovan, Esq. Persinger & Persinger, L.C. Kirkland & Ellis LLP Charleston, West Virginia Washington, D.C. Counsel for Petitioners Counsel for Respondent CHIEF JUSTICE WOOTON delivered the Opinion of the Court. JUSTICE ARMSTEAD, deeming himself disqualified, did not participate in the decision of this case. JUDGE HARDY, sitting by designation. JUSTICE WALKER dissents and reserves the right to file a separate opinion. JUSTICE BUNN dissents and reserves the right to file a separate opinion. SYLLABUS BY THE COURT 1. “‘“A de novo standard is applied by this court in addressing the legal issues presented by a [sic] certified questions from a federal district or appellate court.” Syl. Pt. 1, Light v. Allstate Ins. Co., 203 W.Va. 27, 506 S.E.2d 64 (1998).’ Syllabus Point 2, Aikens v. Debow, 208 W.Va. 486, 541 S.E.2d 576 (2000).” Syl. Pt. 1, Harper v. Jackson Hewitt, Inc., 227 W. Va. 142, 706 S.E.2d 63 (2010). 2. “If an oil and gas lease provides for a royalty based on proceeds received by the lessee, unless the lease provides otherwise, the lessee must bear all costs incurred in exploring for, producing, marketing, and transporting the product to the point of sale.” Syl. Pt. 4, Wellman v. Energy Res., Inc., 210 W. Va. 200, 557 S.E.2d 254 (2001). 3. Except as may be specifically provided by the parties’ agreement, where an oil and gas lease contains an express or implied duty to market, the requirements of Wellman v. Energy Resources, Inc., 210 W. Va. 200, 557 S.E.2d 254 (2001), and Estate of Tawney v. Columbia Natural Resources, L.L.C., 219 W. Va. 266, 633 S.E.2d 22 (2006), extend to the point of sale, not just to the point of marketability or to the first available market. 4. Except as may be specifically provided by the parties’ agreement, royalties are payable to the mineral owner/lessor not only from the producer/lessee’s sale of wet gas i and residue gas but also from the lessee’s sale of any byproducts of the wet gas such as natural gas liquids. 5. “‘The general rule as to oil and gas leases is that such contracts will generally be liberally construed in favor of the lessor, and strictly as against the lessee.’ Syllabus Point 1, Martin v. Consolidated Coal & Oil Corp., 101 W.Va. 721, 133 S.E. 626 (1926).” Syl. Pt. 7, Est. of Tawney, 219 W. Va. 266, 633 S.E.2d 22 (2006). 6. “‘The question as to whether a contract is ambiguous is a questio
No. 23-522, Francis Kaess v. BB Land, LLC FILED June 6, 2025 Walker, Justice, dissenting, and joined by Justice Bunn: released at 3:00 p.m. C. CASEY FORBES, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA In this certified question proceeding, the majority opinion applies an implied duty to market to an oil and gas lease that contains an in-kind royalty provision. It goes on to hold that the requirements for the deductions of post-production expenses from Wellman1 and Tawney2 apply to the lease. With respect for my colleagues in the majority, I dissent. As explained below, the majority’s analysis does not withstand scrutiny primarily because it muddles the distinction between different types of leases. As a result, the majority effectively rewrites the leases to take money from the producers to give it to the royalty owners. But it is not the province of this Court to rewrite an oil and gas lease to 1 See Syl. Pt. 4, Wellman v. Energy Res., Inc., 210 W. Va. 200, 557 S.E.2d 254 (2001) (“If an oil and gas lease provides for a royalty based on proceeds received by the lessee, unless the lease provides otherwise, the lessee must bear all costs incurred in exploring for, producing, marketing, and transporting the product to the point of sale.”). 2 See Syl. Pt. 10, Estate of Tawney v. Columbia Natural Res., 219 W. Va. 266, 633 S.E.2d 22 (2006) (“Language in an oil and gas lease that is intended to allocate between the lessor and lessee the costs of marketing the product and transporting it to the point of sale must expressly provide that the lessor shall bear some part of the costs incurred between the wellhead and the point of sale, identify with particularity the specific deductions the lessee intends to take from the lessor’s royalty (usually 1/8), and indicate the method of calculating the amount to be deducted from the royalty for such post- production costs.”). 1 reflect the Court’s view of a fair bargain. We certainly would not go to such extreme measures to rewrite contracts in any other context.3 I would have held that for leases that contain an in-kind royalty provision, there is no implied duty to market arising from the lease/contract and the requirements of Wellman and Tawney for the deductions of post-production expenses are inapplicable. As explained below, an implied duty to market is only triggered when a royalty owner does not or cannot take physical possession of its royalty share of the production; when that occurs, the producer must market and sell the royalty owner’s share of the production to avoid waste and loss, and the producer may properly charge the royalty owner his share of any post-production costs. One of the most contentious legal issues in the oil and gas industry is the dispute concerning the deductibility of post-production costs from royalty payments owed to lessors.4 At the risk of oversimplification, most royalty clauses generally fall into one 3 When examining a contract in an employment dispute, this Court stated that: “Our task is not to rewrite the terms of contract between the parties; instead, we are to enforce it as written.” Fraternal Ord. of Police, Lodge No. 69 v. City of Fairmont, 196 W. Va. 97, 101, 468 S.E.2d 712, 716 (1996). In the same way, we have held parties to a contract dispute involving an insurance policy to the plain language in the policy and noted that: “‘We will not rewrite the terms of the policy; instead, we enforce it as written.’” Auto Club Prop. Cas. Ins. Co. v. Moser, 246 W. Va. 493, 500, 874 S.E.2d 295, 302 (2022) (quoting Payne v. Weston, 195 W. Va. 502, 507, 466 S.E.2d 161, 166 (1995)). 4 See William T. Silvia, Slouching Toward Babel: Oklahoma’s First Marketable Product Problem, 49 Tulsa L. Rev. 583 (Winter, 2013) (outlining the “minefield of judicial interpretations among the major oil and gas-bearing states[,]” including West Virginia); 2 of two broad categories: “proceeds” royalty provisions, which provide for the mineral owner to receive a royalty consisting of a monetary share of the proceeds the producer receives from the sale of the oil and gas produced under the lease, and “in-kind” royalty provisions, which provide for the mineral owner to receive a royalty consisting of a portion of the physical oil and gas produced, tendered at the wellhead. This Court has stated that
No. 23-569, Camden-Clark Memorial Hospital Corporation; Camden-Clark Health Services Inc.; West Virginia United Health System, Inc. d/b/a West Virginia University Health System; and West Virginia University Hospitals, Inc. v. Marietta Area Healthcare, Inc.; Marietta Memorial Hospital; and Marietta HealthCare Physicians,FILED Inc. June 11, 2025 released at 3:00 p.m. C. CASEY FORBES, CLERK BUNN, Justice, concurring in part and dissenting in part: SUPREME COURT OF APPEALS OF WEST VIRGINIA I concur with the majority’s answers to the first and second questions certified to this Court from the United States District Court for the Northern District of West Virginia, which recognize a cause of action for negligent supervision and define its elements. Yet, I dissent to the remainder of the majority’s opinion, which unnecessarily answers the district court’s third certified question and ultimately holds that intentional or reckless torts can form the basis for a negligent supervision claim. In answering the second certified question, the majority sets forth straightforward, easily applied elements of negligent supervision, making the majority’s answer to the third certified question unnecessary and superfluous. Likewise, the majority’s addition of a new syllabus point relating to the third certified question is unwarranted. Furthermore, while I concur in the majority’s determination of negligent supervision’s elements, I write separately to caution that negligent supervision is, in essence, a narrow subset of ordinary negligence, requiring the case-by-case factual analysis applicable to all negligence claims. I further emphasize that the factual circumstances in which an employer may be held liable to a plaintiff for negligent supervision, when the employee’s intentional tort caused the plaintiff harm, are likely quite rare. 1 A brief factual recitation and the underlying proceedings is helpful to provide context to my analysis. The respondents, the plaintiffs in the underlying action in federal court, alleged in relevant part1 that the petitioners, defendants in the underlying action, negligently failed to supervise their employees “in the pursuit and assistance in the pursuit” of a separate qui tam action against the respondents. In that negligent supervision count, respondents also asserted that the “initiation and pursuit of the qui tam action and the federal investigation consisted of tortious conduct.” The district court deferred ruling on the petitioners’ motion to dismiss the negligent supervision count and instead certified questions asking this Court whether negligent supervision is a cause of action in West Virginia, to set forth the elements of negligent supervision, and to determine whether a negligent supervision claim survives if the employee engages in an intentional or reckless tort. A. The Majority Erred By Answering Question Three The district court’s third certified question asks “[c]an intentional or reckless torts committed by an employee form the basis for a claim for negligent supervision against the employer?” I would have declined to answer this question, as the answer is unnecessary for the district court’s analysis in the underlying case given the Court’s answer to the second certified question. This Court recently explained, in City of Huntington v. AmerisourceBergen Drug Corp., that a “certified question’s purpose is to ‘determine [the] 1 These allegations are taken from the Second Amended Complaint, the operative complaint in the case pending before the district court. 2 legal correctness’ of certain issues that are ‘critical’ to ‘determine the final outcome of a case.’” ___ W. Va. ___, ___, ___ S.E.2d. ___, ___, 2025 WL 1367333, at *6 (W. Va. May 12, 2025) (quoting Bass v. Coltelli, 192 W. Va. 516, 520, 453 S.E.2d 350, 354 (1994), superseded by statute, W. Va. Code § 58-5-2, as recognized by Smith v. Consol. Pub. Ret. Bd., 222 W. Va. 345, 664 S.E.2d 686 (2008)) (discussing certification of questions by a state court). This Court further held that when answering a certified question from a federal court, “the legal issue must substantially control the case.” Syl. pt. 2, in part, id. The majority’s answer to district court’s third question disregards those restrictions. The majority, in answering the second certified question, provides the district court enou
FILED 24-27, Neidig v. Valley Health, Inc. June 10, 2025 Walker, Justice, concurring: released at 3:00 p.m. C. CASEY FORBES, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA I concur in the majority’s analysis and write separately to emphasize that the clear statutory language necessitates the conclusion that for the Act to apply, damages “resulting from death or injury of a person” must be shown whether a plaintiff seeks to impose liability in “tort or breach of contract,” despite the Legislature’s use of the disjunctive “or.” As noted by the majority, courts have recognized that “conjunctions are versatile words, which can work differently depending on context.”1 And here, Respondent relies so wholly on that disjunctive that it altogether ignores the context in which “or” is used, asking this Court to read statutory language in ad hoc fashion that flies in the face of traditional grammar rules and measured legislative drafting. To begin, the definition of “medical professional liability,” reads, in relevant portion: “any liability for damages resulting from the death or injury of a person for any tort or breach of contract based on health care services rendered, or which should have been rendered, by a health care provider or health care facility to a patient.”2 1 Pulsifer v. United States, 601 U.S. 124, 151 (2024). 2 W. Va. Code § 55-7B-2(i). 1 The prepositional phrase “for damages” modifies the preceding noun, “liability.” The definition is thereafter set up in a stairstep modification of the noun phrase “liability for damages.” The participial phrase “resulting from the death or injury of a person” functions as an adjective containing the prepositional phrase “from the death or injury” with the compound object “death or injury” that is then modified by the prepositional phrase “of a person.” As a whole, the participial phrase “resulting from the death or injury of a person” modifies the preceding noun phrase, “liability for damages,” consistent with the grammar rule that “if a participial phrase does not start a sentence, it should modify the noun, pronoun, or noun phrase that most closely precedes it.”3 Next, is the prepositional phrase “for any tort or breach of contract,” which also functions as an adjective to describe the noun phrase “liability for damages.” Importantly, that prepositional phrase contains a compound object: “tort” or “breach of contract.”4 This compound object most closely precedes and is modified by the participial phrase “based on health care services rendered or which should have been rendered.” 3 See Shires Housing, Inc. v. Brown, 172 A.3d 1215, 1225 (Vt. 2017) (Skoglund, J., dissenting) (citing Bryan Garner, The Redbook: A Manual on Legal Style § 10.29(B) (2d Ed. 2006)). 4 See Republic-Vanguard Ins. Co. v. Mize, 292 S.W.3d 214, 219-20 (Tex. App. 2009) (“A preposition is a word that usually indicates a temporal, spatial or logical relationship between the object of the preposition and the subject of the sentence. Most often, prepositions come before their object. A conjunction joins together sentences, clauses, phrases or words; therefore, use of the phrase ‘and/or’ following a preposition, creates a prepositional phrase with a compound object. Therefore, ‘of the “insured” and/or any 2 Next come the prepositional phrases “by a health care provider or health care facility” (also containing a compound object, “health care provider” or “health care facility”) and “to a patient,” neither of which are at issue in this case but operate within the statute to describe who renders the health care services and to whom they are rendered. As recognized by the majority, for Respondent’s construction of the sentence to be grammatically correct, at minimum the word “from” would need to be inserted before “breach” to create two distinct prepositional phrases, i.e., any liability for damages resulting from the death or injury of a person for any tort or from breach of contract. Respondent does not dispute that damages are an integral component of liability under the Act. Rather, its assertion is that the damages can “result[] from . . . breach of contract based on health care services rendered, or which should have been rendered.” But in “subcontractor”’ is a prepositional phrase with a compoun
Legal Cases
257 cases available
Mykles v. State Personnel Board CA3
Filed 6/12/25 Mykles v. State Personnel Board CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin) ---- EARL N. MYKLES, C101271 Plaintiff and Appellant, (Super. Ct. No. STK-CV-UF- 2021-0003191) v. STATE PERSONNEL BOARD, Defendant and Respondent. In 2007, plaintiff Earl N. Mykles was terminated by his employer, the State Compensation Insurance Fund (SCIF). Mykles appealed the termination to defendant State Personnel Board (SPB). In 2011, SPB approved a settlement of Mykles’s claims. In 2021, Mykles filed suit against SPB, alleging that it had defrauded him and deprived him of his due process rights in the adjudication of his dispute with SCIF by failing to tell him he could have pursued his claims against SCIF with the Public Employment Relations Board (PERB) and failing to inform PERB about his claims. 1 The trial court sustained SPB’s demurrer and dismissed Mykles’s suit without leave to amend, finding numerous deficiencies in his complaint. We conclude that the court correctly determined that Mykles’s claims were untimely and therefore affirm the judgment. BACKGROUND Because we are reviewing this matter on demurrer, we take the facts from the operative complaint and deem its allegations to be true for the purpose of determining whether it states a viable cause of action. (Stevenson v. Superior Court (1997) 16 Cal.4th 880, 885.) We may also consider facts of which the trial court properly took judicial notice. (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 877; see also Evid. Code, § 459, subd. (a).) Mykles began working at SCIF in 1989. In 2006, SCIF asked Mykles to attend work improvement plan meetings regarding his job performance. SCIF terminated his employment on March 20, 2007. Represented by counsel provided by his union, Mykles appealed his termination and filed a separate whistleblower retaliation complaint with SPB. In 2011, the parties resolved their dispute, and SPB approved their stipulated settlement agreement. Under the settlement, Mykles received a monetary payment, among other benefits, in exchange for a general release of known and unknown claims and a waiver of Civil Code section 1542, among other concessions. On March 20, 2013, Mykles learned that he could pursue a claim for unfair practices against SCIF with PERB based on the facts in his original two claims. He filed a claim with PERB in 2013; it was closed without prejudice that same year. Mykles also filed a lawsuit against the union and his union-provided legal counsel, alleging that he would not have agreed to the settlement with SCIF if counsel had informed him that he could file an unfair practice charge with PERB. The lawsuit was dismissed, and this court affirmed. (Mykles v. Williams (Mar. 1, 2017, C079338) [nonpub. opn.].) 2 In June 2018, Mykles filed another claim with PERB challenging SCIF’s actions. PERB rejected the claim as untimely under the applicable six-month statute of limitations. On April 13, 2021, Mykles filed the present action against SPB, alleging negligence, fraud, denial of due process, usurpation of PERB’s jurisdiction, conflict of interest, and discrimination. The trial court granted SPB’s motion for judgment on the pleadings but gave Mykles leave to amend. In August 2022, Mykles filed the operative amended complaint. The complaint generally alleged that SPB acted fraudulently in adjudicating his claims against, and approving the settlement with, SCIF by, among other things, unlawfully exercising jurisdiction over the dispute without consulting with PERB (the agency with jurisdiction over the matter) and improperly approving a settlement that included a waiver of future claims. Based on this alleged misconduct, the amended complaint pleaded two causes of action: “Fraud on the PERB Court” and the denial of a property interest (his employment) without due process of law. Mykles’s due process claim additionally alleged that Government Code section 3520, subdivision
In re C.R. CA2/3
Filed 6/12/25 In re C.R. CA2/3 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION THREE In re C.R., a Person Coming B341335, B341338 Under the Juvenile Court Law. Los Angeles County LOS ANGELES COUNTY Super. Ct. No. 21CCJP00340 DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. G.M., Defendant and Appellant. APPEAL from orders of the Superior Court of Los Angeles County, Juan M. Valles, Juvenile Court Referee. Affirmed. Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and Appellant. Dawyn R. Harrison, County Counsel, Kim Nemoy, Assistant County Counsel, Courtney Fisher, Deputy County Counsel, for Plaintiff and Respondent. _________________________ Mother appeals from the juvenile court’s orders denying her Welfare and Institutions Code section 388 petition and terminating parental rights to her daughter C.R. (born December 2020). Father is not a party to this appeal. Mother does not challenge the merits of the court’s rulings. Rather, mother solely contends we must conditionally reverse the order terminating her parental rights because the Los Angeles County Department of Children and Family Services’ (DCFS) initial inquiry under the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) (ICWA), and the California statutes implementing ICWA (Welf. & Inst. Code, § 224 et seq.) (Cal-ICWA), was deficient.1 We affirm. BACKGROUND 1. Summary of C.R.’s dependency case Mother gave birth to C.R. in December 2020, less than a month before she turned 16 years old. The father was mother’s adult boyfriend. Mother herself was a minor dependent of the juvenile court. The Department had filed a section 300 petition on her behalf in January 2020.2 1 Undesignated statutory references are to the Welfare and Institutions Code. “[W]e use the term ‘Indian’ throughout to reflect the statutory language.” (In re Dezi C. (2024) 16 Cal.5th 1112, 1125, fn. 1 (Dezi C.).) We intend no disrespect. 2 Mother was detained from maternal grandmother in March 2020. In July 2020 the court sustained the petition’s allegations that maternal grandmother could not properly care for or supervise mother due to mother’s behavioral issues, including running away to be with her adult boyfriend, who was abusive. Maternal grandmother’s reunification services were terminated in October 2021. 2 Mother, who was pregnant, had been placed in a short-term residential program (STRP). Mother had a “history of running away/being AWOL” from her placement to be with father. Father abused mother, had forced mother to have sex with him, and reportedly used methamphetamines. In August 2020, the court issued a ten-year criminal protective order protecting mother from father, but she continued to run away to be with him. Shortly after C.R.’s birth in December 2020, the Department received a report of general neglect of C.R. The reporting party expressed a concern that mother would “AWOL” and take the baby to see father and that mother “lack[ed] the capacity to protect [C.R.] from witnessing future abuse from father onto minor mother.” These concerns, reports of mother and father having ongoing arguments over the phone, and an incident where C.R. fell, led the Department to detain C.R. from mother in January 2021. On January 22, 2021, the Department filed a section 300 petition on C.R.’s behalf based on mother’s and father’s history of violent altercations, and mother’s failure to enforce—and father’s failure to comply with —the criminal protective order, as well as father’s drug abuse. At the January 27, 2021 detention hearing, the court detained C.R. from parents. The court gave the Department discretion to place C.R. with “any appropriate, assessed” maternal relative, other than maternal grandmother. The Department assessed both maternal aunt and maternal cousin for C.R.’s possible placement. Maternal aunt decided against placement, and the Department could not immediately place C.R. with maternal cousin. Mother entered a waiver of rights and no-contest plea at the May 21, 2021 adjudication and disposition hearing. The 3 court sustained the petition, declared C.R. a dependent, and removed her from parents’ custody. The cour
Gomez v. State Personnel Board CA3
Filed 6/12/25 Gomez v. State Personnel Board CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ---- JESUS GOMEZ, C100533 Petitioner and Respondent, (Super. Ct. No. 34-2022- 80004048-CU-WM-GDS) v. STATE PERSONNEL BOARD, Respondent; DEPARTMENT OF THE CALIFORNIA HIGHWAY PATROL, Real Party in Interest and Appellant. The Department of the California Highway Patrol (CHP) dismissed Jesus Gomez after he claimed overtime for time he spent at home not working. Gomez afterward sought review from the State Personnel Board (the Board) but the Board sustained the dismissal, finding, among other things, that Gomez acted dishonestly and that dismissal 1 was an appropriate penalty. Gomez then petitioned the trial court to set aside the Board’s decision, largely on the ground that insufficient evidence showed he acted dishonestly. Agreeing with Gomez, the trial court granted his petition. On CHP’s appeal, we reverse. BACKGROUND I Overtime at CHP’s East Los Angeles Office and Overtime for Caltrans CHP and the Department of Transportation (Caltrans) have entered into several agreements for traffic safety services. One is known as the Maintenance Zone Enhanced Enforcement Program (MAZEEP) agreement. Under this agreement, CHP officers provide traffic safety services for Caltrans and Caltrans then reimburses CHP for the officers’ time and mileage. Participating officers can receive overtime compensation for time spent on this program. Officers from several CHP offices have participated in this program, including officers in CHP’s East Los Angeles office (the East LA office). That office has a standard operating procedure covering overtime, part of which discusses overtime under the MAZEEP agreement. Starting in 2012, this overtime procedure stated in relevant part: “If Caltrans ends a detail early due to unforeseen circumstances but continues to pay the officer for the duration of the contract, the officer shall remain available to Caltrans by standing by at the office.”1 The East LA office added this language following concerns that officers were claiming full overtime even when Caltrans ended details early—which sometimes happens because of equipment issues, low supplies, and other unforeseen circumstances. Before this amendment to the standard operating procedure, some sergeants initially 1 In past years, a typical MAZEEP shift covered six and a half to eight hours. Under the MAZEEP agreement, Caltrans agreed that when a CHP officer reports for detail and works less than four hours, Caltrans will still pay a minimum of four hours of overtime. 2 dismissed concerns about this overtime practice, reasoning that officers should still be compensated for a full shift even if it ended early. But in time, the sergeants at the East LA office agreed that to receive full compensation in this circumstance, the officers would need to remain available to Caltrans by standing by at the office. After the East LA office added this language, a sergeant photocopied the standard operating procedure, highlighted the new overtime language, and posted it on a bulletin board next to overtime sign-up sheets for MAZEEP. The document remained on the bulletin board until about April 2016. This sergeant also directed those in charge of shift briefings to advise officers about the new overtime language. These individuals then covered this language in their shift briefings for about a week in 2012. II Gomez’s Dismissal Gomez joined CHP as an officer in 2003 and transferred to the East LA office in 2015. All parties agree that between May 2017 and March 2018, Gomez participated in 37 MAZEEP details that Caltrans ended before the contractual end time. On each of these occasions, Gomez checked out a patrol car before the start of the detail and returned it afterward. And on four of th
State v. Shelley
IN THE SUPERIOR COURT OF THE STATE OF DELAWARE STATE OF DELAWARE ) ) v. ) I.D. No. 9804001318 ) LEROY SHELLEY, ) ) Defendant. ) Submitted: June 6, 2025 Decided: June 12, 2025 Upon Defendant’s Motion Pursuant to Rule 35(a) to Correct an Illegal Sentence DENIED. ORDER Leroy Shelley, SBI# 603729, James T. Vaughn Correctional Center, 1181 Paddock Road, Smyrna, DE 19977, pro se. Brian J. Robertson, Esquire, Deputy Attorney General, DEPARTMENT OF JUSTICE, 820 N. French St., Wilmington, Delaware, Attorney for the State of Delaware. WHARTON, J. This 12th day of June 2025, upon consideration of Defendant Leroy Shelley’s (“Shelley”) Motion to Correct an Illegal Sentence Pursuant to Rule 35(a),1 and the record in this matter, it appears to the Court that: 1. Shelley was convicted by a jury in 2007 of two counts each of Robbery First Degree, Kidnapping Second Degree, and Possession of a Firearm During the Commission of a Felony (“PFDCF”), as well as a single count of Conspiracy Second Degree. He waived his right to counsel and represented himself at trial. He was sentenced on March 6, 2008, to 18 ½ years of unsuspended imprisonment followed by probation. That period of imprisonment was broken down as follows: four years with no probation to follow on each robbery charge, five years suspended after two years for probation on each kidnapping charge, three years with no probation to follow on each PFDCF charge, and six months with no probation to follow on the conspiracy charge. 2. Shelley did not file a direct appeal. Instead, he has steadily pursued unsuccessful collateral attacks on his conviction and sentences. First he moved for postconviction relief in 2009. That motion was denied as procedurally defaulted because Shelley’s claims could have been raised on direct appeal had he filed one.2 Shelley’s appeal to the Delaware Supreme Court of that order was dismissed as 1 D.I. 113. 2 D.I. 28. 2 untimely.3 After an unsuccessful attempt at federal habeas corpus relief in 2010,4 Shelley filed his first attempt to vacate his sentence. That motion, in which he argued that his re-indictment was defective, causing the court to lack jurisdiction, was treated as a second postconviction relief motion and was denied again for procedural default.5 The Delaware Supreme Court affirmed that decision. 6 This Court summarily dismissed his third postconviction relief motion on October 27, 2014. 7 It denied Shelley’s Motion for Modification of Sentence on March 7, 2017.8 The Supreme Court affirmed.9 This Court denied his Petition for a Writ of Habeas Corpus on April 20, 2017.10 The Supreme Court affirmed.11 A Motion for Sentence Clarification was denied on October 6, 2017.12 The Supreme Court affirmed. 13 Shelley’s Motion to Recuse was denied on July 13, 2018. 14 The Supreme Court dismissed his appeal.15 A Motion to Vacate Sentence was denied on July 12, 2019. 16 A second Motion to Vacate was denied on July 31, 2019.17 That decision was affirmed on January 7, 3 Shelley v. State, 2010 WL 1627335 (Del. Apr. 21, 2010). 4 Shelley v. Delaware, 2012 WL 379907 (D. Del. 2012). 5 D.I. 61. 6 Shelley v. State, 53 A.3d 303 (Del. 2012). 7 Shelley v. State, 2014 WL 5713236 (Del. Super. Oct. 27, 2014). 8 D.I. 53. 9 Shelley v. State, 2017 WL 2686551 (Del. Jun. 21, 2017). 10 D.I. 63. 11 Shelley v. State, 2017 WL 3122316 (Del. Jul. 17. 2107). 12 D.I. 66. 13 Shelley v. State, 2018 WL 3173852 (Del. Jun. 26, 2018). 14 D.I. 74. 15 Shelley v. State, 2018 WL 6331623 (Del. Dec. 3, 2018). 16 State v. Shelley, 2019 WL 3248617 (Del. Super. July 12, 2019). 17 State v. Shelley, 2019 WL 3458725 (Del. Super. July 31, 2019). 3 2020. 18 His fourth postconviction relief motion was denied by this Court on January 28, 2020. 19 That denial was affirmed on June 30, 2020. 20 On March 26, 2021, Shelley filed a Motion for Bail Pending Appeal. 21 That motion was denied on April 5, 2021.22 Shelley did not appeal. On December 4, 2023, this Court denied his Motion Pursuant to Rule 35 to Correct an Illegal Sentence.23 That denial was affirmed on May 13, 2024. 24 On May 20, 2025, this Court denied a similar Motion to Correct an Illegal Sentence under Rule 35(a). 25 3. The current motion, again brought under Rule 35(a), alleges that his sentences are illegal because; (1) they violate the “ex post facto clause;” (2) the punishments for robbery and PFDCF had increased by statute by the time of his sentencing; and (3) the
Myron Jamarez Lee v. State
Court of Appeals of the State of Georgia ATLANTA, June 12, 2025 The Court of Appeals hereby passes the following order A25D0426. MYRON JAMAREZ LEE v. THE STATE. Upon consideration of the Application for Discretionary Appeal, it is ordered that it be hereby DENIED. LC NUMBERS: 16R099 Court of Appeals of the State of Georgia Clerk's Office, Atlanta, June 12, 2025. I certify that the above is a true extract from the minutes of the Court of Appeals of Georgia. Witness my signature and the seal of said court hereto affixed the day and year last above written. , Clerk.
Cooper, Jr. v. State
NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER Electronically Filed Intermediate Court of Appeals CAAP-XX-XXXXXXX 12-JUN-2025 08:05 AM Dkt. 52 SO NO. CAAP-XX-XXXXXXX IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAI I SAMUEL COOPER, JR., Petitioner-Appellant, v. STATE OF HAWAI I, Respondent-Appellee APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CASE NO. 1CPN-XX-XXXXXXX) SUMMARY DISPOSITION ORDER (By: Leonard, Acting Chief Judge, Hiraoka and Wadsworth, JJ.) Petitioner-Appellant Samuel Cooper, Jr. (Cooper), self- represented, appeals from the October 3, 2023 Order Denying Petition to Vacate, Set Aside, or Correct Judgment or to Release Petitioner from Custody (Order Denying Fifth Rule 40 Petition).1 Cooper does not identify points of error on appeal, as such. Nonetheless, we address Cooper's argument to the extent that we are able to discern it. On October 18, 2022, Cooper filed a Petition for Post-Conviction Relief pursuant to Hawai i Rules of Penal Procedure (HRPP) Rule 40 (Fifth Rule 40 Petition) raising a single ground for relief: that the prosecutor used information charging in the underlying criminal case. Cooper seeks relief from the Circuit Court's denial of the Fifth Rule 40 Petition. The underlying criminal case stemmed from a 1999 murder. On September 3, 1999, Cooper was charged by way of complaint with Murder in the Second Degree, in violation of Hawaii Revised Statutes § 707-701.5 (2014), convicted after a 1 The Honorable Trish K. Morikawa presided. NOT FOR PUBLICATION IN WEST'S HAWAI I REPORTS AND PACIFIC REPORTER jury trial, and sentenced to life imprisonment with the possibility of parole. Cooper appears to argue, as he argued in various submissions to the Circuit Court, that he was entitled to a grand jury indictment based on State v. Obrero, 151 Hawai i 472, 517 P.3d 755 (2022). Upon careful review of the record and the briefs submitted by the parties, and having given due consideration to the arguments advanced and the issues raised, we resolve Cooper's appeal as follows: The Hawai i Supreme Court has held that "Obrero applies to cases that were pending trial before the decision. Obrero does not apply retroactively to defendants who pled out or to defendants convicted after a trial." State v. Bautista, 153 Hawai i 284, 289, 535 P.3d 1029, 1034 (2023). The supreme court further held that defendants challenging a charging instrument's validity for the first time in an HRPP Rule 40 petition are foreclosed from having their trial convictions overturned pursuant to Obrero. Id. Accordingly, we conclude that Cooper is not entitled to relief. Therefore, the Circuit Court's October 3, 2023 Order Denying Fifth Rule 40 Petition is affirmed. In addition, Cooper's Motion for Immediate Decision and Relief, filed on November 27, 2024, is hereby denied. DATED: Honolulu, Hawai i, June 12, 2025. On the briefs: /s/ Katherine G. Leonard Acting Chief Judge Samuel Cooper, Jr., Petitioner-Appellant, pro se. /s/ Keith K. Hiraoka Associate Judge Loren J. Thomas Deputy Prosecuting Attorney, /s/ Clyde J. Wadsworth for Respondent-Appellee. Associate Judge 2
People v. Burns
2025 IL App (5th) 230221-U
NOTICE 2025 IL App (5th) 230221-U NOTICE Decision filed 06/12/25. The This order was filed under text of this decision may be NO. 5-23-0221 Supreme Court Rule 23 and is changed or corrected prior to not precedent except in the the filing of a Petition for IN THE limited circumstances allowed Rehearing or the disposition of under Rule 23(e)(1). the same. APPELLATE COURT OF ILLINOIS FIFTH DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Saline County. ) v. ) No. 16-CF-90 ) BRIAN T. BURNS, ) Honorable ) Walden E. Morris, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________ JUSTICE VAUGHAN delivered the judgment of the court. Justices Cates and Sholar concurred in the judgment. ORDER ¶1 Held: The defendant’s sentence is affirmed where the trial court did not abuse its discretion when it sentenced him to 40 years’ imprisonment for first degree murder and 5 years’ imprisonment for concealment of a homicidal death. ¶2 Following a jury trial, the defendant was found guilty of first degree murder (720 ILCS 5/9-1(a)(2) (West 2016)) and concealment of a homicidal death (id. § 9-3.4(a)). The trial court subsequently sentenced him to 40 years’ and 5 years’ imprisonment in the Illinois Department of Corrections (IDOC), respectively, to be served consecutively, for an aggregate sentence of 45 years’ imprisonment. On appeal, the defendant argues that his sentence was excessive. For the following reasons, we affirm the defendant’s sentence. 1 ¶3 I. BACKGROUND ¶4 On March 17, 2016, the defendant was charged with two counts of first degree murder and one count of concealment of a homicidal death in connection with the death of his estranged wife, Carla Burns, who disappeared on March 8, 2016. The defendant initially told police that he had not seen Carla since the previous week. Police subsequently discovered charred skeletal remains on a property adjacent to the defendant’s property. In a custodial interview after his arrest, the defendant stated that Carla accidentally shot herself while the two of them were target-shooting. He admitted putting Carla’s body on a brush pile and burning it. He stated he did so due to panic, a desire for Carla’s family not to see her deceased body, and a promise that he and Carla had made to each other that whoever of the two died last would cremate the body of the one who died first. The defendant maintained his version of events throughout his testimony at trial. ¶5 Before trial, the defendant’s attorney sought a psychological evaluation of the defendant due to his belief that there was a bona fide doubt as to the defendant’s fitness to stand trial. The trial court granted the request. ¶6 Dr. Fred D. Klug performed the evaluation. Dr. Klug met with the defendant on April 23, 2019, and the evaluation report was filed with the court on May 22, 2019. In his report, Dr. Klug noted an Axis I diagnostic impression of “Adult Antisocial Behavior.” He concluded, “It is my opinion that Mr. Burns is competent to stand trial at this time. The issues [sic] of ‘getting off task’ is easily remedied by redirecting him.” ¶7 The defendant’s jury trial commenced on December 9, 2019. The jury ultimately found the defendant guilty of one count of first degree murder as well as concealment of a homicidal death. The trial court ordered the probation department to prepare a presentence investigation report (PSI) for sentencing. The defendant did not file a motion for a new trial. 2 ¶8 The defendant’s PSI, which was filed February 6, 2020, set forth the defendant’s date of birth as April 1, 1959. It noted that prior to the murder charges herein, the defendant’s only criminal
In re R.L.-C.
2025 IL App (2d) 250051-U
2025 IL App (2d) 250051-U No. 2-25-0051 Order filed June 12, 2025 NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT ______________________________________________________________________________ In re R.L.-C., a Minor ) Appeal from the Circuit Court ) of Kane County. ) ) No. 23-JA-27 ) ) Honorable (The People of the State of Illinois, Petitioner- ) Kathryn D. Karayannis, Appellee, v. Aimee C., Respondent-Appellant). ) Judge, Presiding. ______________________________________________________________________________ JUSTICE JORGENSEN delivered the judgment of the court. Justices Schostok and Birkett concurred in the judgment. ORDER ¶1 Held: We grant appellate counsel’s motion to withdraw and affirm the circuit court’s judgment terminating respondent’s parental rights, concluding there exist no issues of arguable merit to be raised on appeal. ¶2 Respondent, Aimee C., appeals from the circuit court’s order finding her unfit to parent her daughter, R.L.-C. (born December 6, 2019), and terminating her parental rights. 1 Per Anders v. California, 386 U.S. 738 (1967), and In re S.M., 314 Ill. App. 3d 682, 685 (2000) (holding Anders applies to cases involving termination of parental rights), appointed appellate counsel moves to 1 The parental rights of Sarah L., R.L.-C.’s other parent, were also terminated. She is not a party to this appeal. 2025 IL App (2d) 250051-U withdraw. Counsel has supported her motion with a memorandum of law providing a statement of facts, potential issues, and argument as to why those issues lack arguable merit. See In re Alexa J., 345 Ill. App. 3d 985, 988 (2003) (further holding that “counsel must identify at least one potentially justiciable issue in a motion to withdraw under Anders.”). In her motion, counsel states that she read the record and found no issues of arguable merit. Counsel, further, served respondent with a copy of the motion and memorandum. We advised respondent that she had 30 days to respond to counsel’s motion. That time has passed, and no response was filed. We conclude that this appeal lacks arguable merit based on the reasons set forth in counsel’s memorandum. Thus, we grant counsel’s motion and affirm the circuit court’s judgment. ¶3 I. BACKGROUND ¶4 Respondent had a lengthy history of involvement with the Illinois Department of Children and Family Services (DCFS). Specifically, on February 1, 2023, DCFS received a call reporting that respondent was intoxicated and grabbed R.L.-C. by the arm and swung her around aggressively. Respondent then left the shelter with R.L.-C. and placed her in the care of Kari Young at the Candlewood Suites in Aurora. While at this location, respondent began punching and kicking walls. She was asked to leave the premises and refused. Respondent was thereafter arrested and charged with aggravated battery to a peace officer, aggravated assault to a peace officer, and criminal trespass to land. ¶5 At a shelter-care hearing on February 28, 2023, the court found that probable cause existed to proceed with the petition for adjudication, thereby requiring the urgent and immediate removal of R.L.-C. from respondent’s care. The court placed R.L.-C. in the temporary custody of DCFS and scheduled an adjudicatory hearing. The court appointed CASA of Kane County as the guardian -2- 2025 IL App (2d) 250051-U ad litem (GAL) for R.L.-C. She was initially placed with Kari Young, fictive kin, and respondent and Sarah L. were allowed supervised visitation at the discretion of DCFS. ¶6 After hearings on April 25, 2023, and May 23, 2023, the circuit court, relying on the factual basis submitted by the State and stipulated by respondent and Sarah L., found R.L.-C. to be neglected. The court continued on to a dispositional hearing on May 23, 2023. There, the court found that it was in the best interests of the minor to be made a ward of the court. Regarding both parents, the court determined that, for reasons other than financial circumstances alone, respondent and Sarah L. were
JANICE M. LONGDUE v. MELISSA HAMMOCK
06/12/2025 IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE Assigned on Briefs June 3, 2025 JANICE M. LONGDUE v. MELISSA HAMMOCK Appeal from the Circuit Court for Knox County No. 159894 Gregory S. McMillan, Judge ___________________________________ No. E2024-01073-COA-R3-CV ___________________________________ This appeal stems from the trial court’s granting of Appellee’s petition for an order of protection against Appellant. We do not reach the merits of Appellant’s argument because her brief does not comply with Rule 27 of the Tennessee Rules of Appellate Procedure and Rule 6 of the Rules of the Court of Appeals of Tennessee—most notably by failing to include a statement of issues presented for review. This appeal is therefore dismissed. Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed and Remanded J. STEVEN STAFFORD, P.J., W.S., delivered the opinion of the court, in which FRANK G. CLEMENT, JR., P.J., M.S., and JOHN W. MCCLARTY, J., joined. Melissa Hammock, Corryton, Tennessee, Pro se Janice M. Longdue, Corryton, Tennessee, Pro se. MEMORANDUM OPINION1 I. FACTUAL AND PROCEDURAL BACKGROUND 1 Rule 10 of the Rules of the Court of Appeals of Tennessee provides: This Court, with the concurrence of all judges participating in the case, may affirm, reverse or modify the actions of the trial court by memorandum opinion when a formal opinion would have no precedential value. When a case is decided by memorandum opinion it shall be designated “MEMORANDUM OPINION,” shall not be published, and shall not be cited or relied on for any reason in any unrelated case. This matter involves a dispute between two property owners, Respondent/Appellant Melissa Hammock (“Appellant”) and Petitioner/Appellee Janice M. Longdue (“Appellee”). Appellee’s property is bordered on one side by a strip of land encumbered by an easement; the front of Appellant’s property abuts the easement. The easement is for the benefit of the property neighboring Appellant’s property, providing an access road to the rear of that property. In turn, that neighbor has allowed Appellant to use the road to access her own property. Appellant also performs maintenance on the easement. On May 16, 2024, Appellee filed a petition for an order of protection against Appellant in the Knox County Circuit Court (“the trial court”). Appellee alleged that Appellant had damaged her property by, inter alia, cutting a barbed-wire fence, destroying a privacy fence, and cutting trees. The petition further alleged that Appellant would often be on Appellee’s property line and would record Appellee in her yard. Following a hearing, the trial court granted Appellee an order of protection on June 20, 2024. Appellant was prohibited from contacting or communicating with Appellee and entering or intentionally damaging Appellee’s property. Appellant was further prohibited from performing maintenance of the easement along Appellee’s property. The order was set to expire on December 31, 2024. Appellee filed a motion for attorney’s fees on June 25, 2024. Appellee was awarded $3,975.00 in attorney’s fees by order of July 11, 2024. Appellant filed this appeal on July 23, 2024. II. ANALYSIS As discussed more in depth, infra, it is somewhat unclear from Appellant’s brief what questions she poses on appeal. Upon review, we conclude that Appellant’s failure to comply with the requirements of the Tennessee Rules of Appellate Procedure and the Rules of the Court of Appeals of Tennessee concerning appellate briefs precludes effective review, and we decline to reach the substantive issues. The Tennessee Rules of Appellate Procedure and the Rules of the Court of Appeals set forth rules regarding appellate practice, specifically, the form and content of a party’s brief. Rule 27 of the Tennessee Rules of Appellate Procedure provides that the brief of an appellant shall contain the following: (1) A table of contents, with references to the pages in the brief; (2) A table of authorities, including cases (alphabetically arranged), statutes and other authorities cited, with references to the pages in the brief where they are cited; (3) A jurisdictional statement in cases appealed to the Supreme Court directly from the trial court indicating briefly the jurisdictional grounds for the appeal to the Supreme Court; -2- (4) A statement of the issues presented for review; (5) A statement of the case, indicating briefly the nature of the case, the cou
State v. Church
IN THE SUPERIOR COURT OF THE STATE OF DELAWARE STATE OF DELAWARE ) ) v. ) I.D. No. 2403005415 ) CHRISTIAN CHURCH, ) ) Defendant. ) Submitted: June 2, 2025 Decided: June 11, 2025 ORDER Upon Defendant’s Motion For Reargument DENIED 1. Following a jury trial, Christian Church (“Defendant”) was convicted of two counts of Assault in the Second Degree. On Defendant’s renewed motion, the Court granted a judgment of acquittal for one assault but denied acquittal for the other. Defendant now moves for reargument. For the reasons that follow, Defendant’s motion is DENIED. FACTUAL AND PROCEDURAL BACKGROUND 1 2. The relevant facts are included in this Court’s memorandum opinion and order dated May 15, 2025. 2 3. Beginning January 21, 2025, Defendant was tried on the charge of Assault in the First Degree of Kaden Handte (“Handte”) and Assault in the Second Degree of Amarion Nutter (“Nutter”). At the close of the State’s case-in-chief, Defendant moved for judgment of acquittal on both charges. The Court denied that 1 Citations in the form of “D.I. ___” refer to docket items. 2 See State v. Church, 2025 WL 1411722, at *2–4 (Del. Super. May 15, 2025). motion. On January 29, 2025, the jury returned a verdict of guilty on the lesser included offense of Assault in the Second Degree of Handte (the “Handte Conviction”) and the charged offense of Assault in the Second Degree of Nutter (the “Nutter Conviction”). 4. Defendant timely filed a renewed motion for judgment of acquittal and a motion for a new trial. On May 15, 2025, the Court issued an opinion and order granting Defendant’s motion for judgment of acquittal as to the Nutter Conviction, denying it as to the Handte Conviction, and denying his motion for a new trial.3 5. On May 22, 2025, Defendant attempted to file a motion for reargument seeking acquittal of the Handte Conviction. That motion was rejected because it exceeded the applicable page limitations. On May 23, 2025, Defendant re-filed the motion along with a motion to exceed page imitations (the latter of which the State did not oppose).4 The Court approved the motion to exceed page limitations on May 27, 2025.5 On June 2, 2025, the State filed a response to Defendant’s motion for reargument. 6 STANDARD OF REVIEW 6. In Delaware, there is no specific criminal rule governing motions for reargument. 7 Superior Court Criminal Rule 57(d) provides for the application of the 3 See generally id. 4 D.I. 41, 42. 5 D.I. 43. As a technical matter, Defendant’s motion for reargument was untimely, as he was required to file the motion no later than May 22, 2025. However, because Defendant attempted to file the motion on that date, the Court will consider it on its merits. Cf. Dishmon v. Fucci, 32 A.3d 338, 346 (Del. 2011) (“Delaware has a strong public policy that favors permitting a litigant a right to a day in court.”). 6 D.I. 45. 7 See Samuel v. State, 3 A.3d 1098, 2010 WL 3245109, at *1 (Del. Aug. 17, 2010) (ORDER) (“A timely-filed motion for reargument is ‘the proper device for seeking reconsideration’ of [this Court's] findings of fact and conclusions of law.”); accord Whitfield v. State, 981 A.2d 1174, 2009 WL 3111680, at *1 (Del. Sept. 29, 2009) (ORDER). 2 Superior Court Civil Rules when no criminal rule is controlling. Thus, Superior Court Civil Rule 59(e) applies to Defendant's motion.8 7. “Delaware law places a heavy burden on a party seeking relief pursuant to [Superior Court Civil] Rule 59.” 9 “Motions for reargument should not be used to rehash arguments decided by the Court, or to present new arguments not previously raised” 10 because such use “frustrates the efficient use of judicial resources, places the opposing party in an unfair position, and stymies the orderly process for reaching closure on the issues.” 11 The Court will grant a motion for reargument only if the movant shows that “the Court has overlooked a controlling precedent or legal principles, or the Court has misapprehended the law or facts such as would have changed the outcome of the underlying decision.” 12 ANALYSIS 8. Defendant makes three core arguments. The first is that the jury’s verdict acquitting Defendant of Assault in the First Degree but convicting him of Assault
People v. Lewis
PUBLIC- REDACTED Filed 6/11/25 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION TWO THE PEOPLE, Plaintiff and Respondent, A171414 v. RONALD DESHUNN LEWIS, (Contra Costa County Super. Ct. Nos. 01-23-01997, 01- Defendant and Appellant. 24-01976) PUBLIC—REDACTED VERSION. Redacts material from sealed record. (Cal. Rules of Court, rules 8.45, 8.46(f)(1) & (2).) Defendant Ronald Deshunn Lewis was charged with two counts of assault, alleged to have violated his probation, and found mentally incompetent to stand trial. The trial court, relying on a report from a psychologist, later committed defendant to the California Department of State Hospitals (Department) and authorized it to involuntarily administer antipsychotic medication pursuant to Penal Code section 1370, subdivision (a)(2)(B) (section 1370(a)(2)(B)).1 Defendant appeals, arguing the trial court violated his rights to due process and equal protection when it issued the 1 Further undesignated statutory references are to the Penal Code. 1 PUBLIC- REDACTED involuntary medication order without first affording him an evidentiary hearing. We disagree, and therefore affirm. BACKGROUND2 Original Charges and Competency Proceedings On July 19, 2023, the Contra Costa County District Attorney filed in case number 01-23-01997 an information alleging defendant committed assault by means likely to produce great bodily injury (§ 245, subd. (a)(4)) with an enhancement that he personally inflicted great bodily injury (§ 12022.7, subd. (a)). On August 18, the trial court declared a doubt as to defendant’s mental competence and suspended the criminal proceedings. (§ 1368.) Several days later, the court appointed three psychologists, including [REDACTED], to evaluate defendant’s mental condition. (§ 1369.) On October 11, based on the evaluators’ reports, the court found defendant incompetent to stand trial. On November 15, the court committed defendant to the Department. Restoration of Defendant’s Competency, Plea, and Placement on Probation One month later, the Department certified that defendant had regained mental competence. On March 13, 2024, the court approved the certificate and reinstated criminal proceedings. On April 3, defendant pled no contest to the count of assault by means of force likely to produce great bodily injury in return for the dismissal of the great bodily injury enhancement. The court placed defendant on probation for a one-year term. 2 This case involves material from a sealed record. In accordance with California Rules of Court, rule 8.46(f)(1) and (2), we have concurrently filed public (redacted) and sealed (unredacted) versions of this opinion. We hereby order the unredacted version of this opinion sealed. 2 PUBLIC- REDACTED Petition to Revoke Probation and New Charges On May 13, the probation department filed a petition to revoke probation alleging defendant violated the terms of his probation by “committing assault with force likely to produce great bodily injury and child abuse with possible great bodily injury/death.” It was alleged that defendant followed a father and his juvenile son in a parking lot and attacked them at random. Defendant approached the father from behind and struck him in the side of the head with a rock. He then approached the juvenile victim and also struck him with the rock. When the juvenile victim was on the ground, defendant stood over him and then struck him in the head with the rock multiple times. The juvenile victim sustained a severe laceration to his head. On May 14, the district attorney filed a complaint in another case (no. 01-24-01976) charging defendant with assault with a deadly weapon (§ 245, subd. (a)(1)) (count 1)) and assault by means likely to produce great bodily injury (§ 245, subd. (a)(4)) (count 2). The complaint also alleged that defendant personally inflicted great bodily injury (§ 12022.7, subd. (e)) in the commission of both counts, and that he used a deadly weapon in the commission of count 2 (§ 12022, subd. (b)(1)). It was further alleged that defendant violated the terms of his probation in case no. 01-23-01997. Second Competency Proceedings On May 28, based upon defense
Citizens for a Better Eureka v. City of Eureka
Filed 5/14/25; Certified for Publication 6/11/25 (order attached) IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION THREE CITIZENS FOR A BETTER EUREKA, Plaintiff and Appellant, A170214 v. (Humboldt County CITY OF EUREKA et al., Super. Ct. No. CV2300712) Defendants and Respondents; WIYOT TRIBE, Real Party in Interest. Citizens for a Better Eureka (CBE) filed a petition for writ of mandate pursuant to the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.1; CEQA) challenging an action by the City of Eureka (the City) and the City of Eureka City Council (the City Council) (collectively, respondents) that authorized the reduction or removal of a City-owned parking lot for redevelopment into affordable housing based on a CEQA exemption. 1 All further undesignated statutory references are to the Public Resources Code. 1 The specially appearing Wiyot Tribe (the Tribe), which was selected as the developer for the affordable housing redevelopment but was not named in the writ petition, moved to dismiss the petition on the basis that it was a necessary and indispensable party to the proceeding. The trial court granted the motion and dismissed the action. On appeal, CBE avers the Tribe was neither a necessary nor indispensable party to the action and therefore dismissal was not warranted. We affirm. FACTUAL AND PROCEDURAL BACKGROUND Unless otherwise noted, all dates refer to 2023. The April Resolution On April 4, the City Council held a public hearing on its plan to develop affordable housing on a City-owned public parking lot at the corner of 5th and D streets in downtown Eureka (the parking lot). After the hearing, the City Council adopted a resolution (the April resolution) entitled: “A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF EUREKA FINDING THE PROJECT QUALIFIES FOR A CLASS 12 SURPLUS GOVERNMENT PROPERTY EXEMPTION FROM CEQA AND AUTHORIZING THE REDUCTION OR REMOVAL OF PUBLIC PARKING FROM THE PARKING LOT AT 5TH AND D STREETS (APN 001-103-003) TO FACILITATE AFFORDABLE HOUSING PROJECTS.” The resolution authorized “the reduction or removal of public parking at [the parking lot], to facilitate development of Affordable Housing Projects.” It found that “[t]he reduction or removal of parking to allow the sale or lease of the property is exempt from CEQA pursuant to CEQA Guidelines2 2 CEQA Guidelines, hereafter cited to as Guidelines, refers to a series of administrative regulations for the implementation of CEQA promulgated by the Secretary of the Natural Resources Agency, codified at title 14, division 6, 2 Section 15312 (Class 12) Surplus Government Property Sales.” A staff report recommending approval of the April resolution stated that “[t]he decision to declare property surplus, and the subsequent lease or sale of surplus property[,] is a ‘project’ pursuant to [CEQA]” and set forth the City’s basis for claiming an exemption under Guidelines section 15312. That same day, the City Council authorized the release of a request for proposal (RFP) for affordable housing projects on the parking lot. CBE’s Petition for Writ of Mandate On May 5, CBE filed the petition for writ of mandate and complaint for declaratory and injunctive relief (the petition) at issue in this case, pursuant to sections 21168 and 21168.5, challenging the adoption of the April resolution on the basis that it violated CEQA. The petition named the City, the City Council, and Does 1 to 10 as respondents. In the petition, CBE alleged the April resolution unlawfully claimed a Class 12 CEQA exemption for “sales of surplus government property” (Guidelines, § 15312) by improperly “ ‘piecemealing’ ” the project and focusing on the sale of the parking lot without considering the future use of the land. Instead, the petition asserted, “ ‘the whole of [the] action’ that has ‘a potential for resulting’ in a direct or reasonably foreseeable indirect physical change to the environment is not merely the surplus-sale [sic] of the lot, but the redevelopment of the lot into affordable housing.” The petition sought alternative and peremptory writs of mandate that generally sought to “vacate and set aside” the redevelopment project, declaratory and injunctive relief, and an order requiring respondents to rescind their approval of the project. chapter 3 of the California Code of Regulations. (Guidelines, § 15000; Union of Medical Marijuana Patients, Inc. v. City of San Diego (2019) 7 Cal.5th 1171, 1184 & fn. 2 (Union).)
DPR Construction v. Workers' Comp. Appeals Bd.
Filed 5/16/25; Certified for Publication 6/11/25 (order attached) IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT ---- DPR CONSTRUCTION et al., C102117 Petitioners, (WCAB Case No. ADJ11348013) v. WORKERS’ COMPENSATION APPEALS BOARD and ALONZO MCCLANAHAN, Respondents. Employer DPR Construction (DPR) and its workers’ compensation carrier, National Union Fire Insurance Company (collectively, petitioners), challenge a Workers’ Compensation Appeals Board (the board) decision in favor of DPR’s former employee, Alonzo McClanahan. Petitioners contend the board exceeded its powers in two ways: (1) by failing to state the reasons for finding McClanahan credible and (2) by admitting two medical reports that were not listed in the pretrial conference statement. We disagree with petitioners as to the first contention but agree as to the second. Because we reject the board’s harmless error defense to the second contention by applying longstanding 1 precedent, we annul the board’s decision and remand for further proceedings. Statutory references are to the Labor Code unless otherwise indicated. FACTUAL AND PROCEDURAL BACKGROUND I Pretrial At the end of July 2017, McClanahan claimed workers’ compensation benefits for an alleged industrial injury to his right shoulder that occurred on July 25, 2017, while working at DPR. Petitioners’ claims administrator denied the claim a few months later. The following year, McClanahan sought board adjudication of his claim. (§ 5500; Cal. Code Regs., tit. 8, § 10455.) Dr. Hanley was originally designated as the qualified medical evaluator and prepared two reports in that capacity in 2018 (the Hanley reports). He was later replaced as the qualified medical evaluator by Dr. Foglar and then by Dr. McGahan. After engaging in discovery, the parties participated in a mandatory settlement conference (§ 5502, subd. (d)), which was unsuccessful, so the matter was set for trial. The pretrial conference statement stipulated to Dr. McGahan as the qualified medical evaluator (§ 4062.2) and provided a list of exhibits, including reports by Dr. McGahan, but the Hanley reports were not included. II Trial At trial, McClanahan testified that his right shoulder was injured on the morning of July 25, 2017, while working for DPR (the 2017 injury). Specifically, he was “moving like 200 2-by-4s, 20-foot long, from one place to another” for four or five hours when the area between his shoulder and neck started to get stiff. He told his foreman that he couldn’t lift anymore with his shoulder hurting, and when he got off a few hours later, he told his superintendent that his “shoulder up in [his] neck” was sore. The superintendent asked him if he wanted to make a report, but McClanahan declined because he didn’t think it was that bad. But when McClanahan woke up the next day, his arm and shoulder 2 were stiff. He went to a doctor that night who advised taking a few days off work because his shoulder may be overworked. McClanahan reported this to DPR, but he did not see a workers’ compensation doctor until August 10, 2017. In his view, DPR caused the delay. Three DPR employees disagreed with McClanahan’s account. Both the foreman and the superintendent stated that McClanahan did not report an injury to them on July 25, 2017. And the DPR safety manager who prepared the incident report testified that to his knowledge, McClanahan did not report an injury to anyone on July 25, 2017. DPR’s evidence included the employee sign out sheet for July 25, 2017, that indicated McClanahan signed out at 3:00 p.m. and checked the box indicating he was not injured.1 The safety manager also testified he made several attempts to take McClanahan to the workers’ compensation clinic between July 27, 2017, and August 7, 2017, in accordance with DPR policy, but McClanahan never showed up. In a deposition, McClanahan testified DPR was the first place he ever had right shoulder pain, but at trial he admitted he suffered an industrial injury below his right elbow in 2013, a few years before working for DPR (the 2013 injury), and felt pain in his right shoulder as a result. He also testified he never went to a doctor for right shoulder pain before July 2017, but medical records showed that he sought or obtained care for shoulder pain or strain several times betwee
Trunick v. Callaway CA5
Filed 6/11/25 Trunick v. Callaway CA5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT SHELLEY TRUNICK, as Co-Trustee, etc., et al., F086766 Plaintiffs and Appellants, (Super. Ct. No. BPB-18-002894) v. RICHARD CALLAWAY, OPINION Defendant and Respondent. APPEAL from an order of the Superior Court of Kern County. Brett V. Myers, Commissioner. Dake, Braun & Monge, Craig N. Braun; Darling & Wilson and Joshua G. Wilson for Plaintiffs and Appellants. Ventura Coast Law, Kymberley E. Peck; Ferguson Case Orr Paterson and Wendy C. Lascher for Defendant and Respondent. -ooOoo- This appeal arises from probate litigation related to a trust created by the Callaway family for Callaway family members. Two beneficiaries of the trust (siblings Richard Callaway and Gary Callaway) brought an amended petition for removal of the co-trustees of the trust (their other two siblings, Shelley Trunick and Wayne Callaway), for breaches of various fiduciary duties. Following a court trial, the probate court found the co- trustees had violated multiple fiduciary duties and committed “an extreme act of misconduct” that constituted “a breach of trust.” The probate court ordered the reversal of various actions taken by the co-trustees and removed the co-trustees. The probate court also found that Richard Callaway (Richard), who took the lead in the litigation on behalf of himself and Gary Callaway, was the “prevailing party” on his amended petition for removal of the co-trustees. The probate court awarded prejudgment attorney fees and costs to Richard pursuant to Probate Code section 17211,1 subdivision (b). The court observed that fees and costs “incurred on the amended petition for removal” were granted based on an “extreme act of misconduct undertaken in bad faith” by co-trustees. In a prior appeal filed in this court, co-trustees Shelley Trunick and Wayne Callaway (co-trustees) appealed the trial court’s judgment on Richard’s petition for removal of trustees. In that appeal, co-trustees did not challenge the trial court’s award to Richard, pursuant to section 17211, of prejudgment attorney fees and costs. We affirmed the judgment in its entirety, including the provision awarding prejudgment attorney fees and costs to Richard. We subsequently lost jurisdiction over the judgment. While co-trustees’ appeal of the judgment on Richard’s petition for removal of co- trustees was pending, Richard brought a motion for attorney fees and costs in the probate court, as authorized by the judgment. Co-trustees did not timely oppose Richard’s motion for attorney fees and costs. The probate court granted Richard $72,073.50 in attorney fees and $11,558.35 in costs. Co-trustees now appeal the probate court’s order granting Richard $72,073.50 in attorney fees. Co-trustees’ contentions on appeal are, however, directed to the underlying judgment, which awarded attorney fees to Richard pursuant to section 17211, subject to 1 All statutory references are to the Probate Code unless otherwise stated. 2. an appropriate motion to determine the amount of fees. More specifically, co-trustees now contend the probate court erroneously awarded fees pursuant to section 17211, subdivision (b). Since we no longer have jurisdiction over the underlying judgment that awarded the attorney fees under section 17211, these contentions are untimely and unavailing. Accordingly, we affirm the probate court’s order granting $72,073.50 in attorney fees and $11,558.35 in costs, to Richard. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND The factual background of this matter was extensively detailed in this court’s opinion in co-trustees’ prior consolidated appeal, which arose from the trial court’s respective judgments on (1) Richard’s amended petition for removal of co-trustees and (2) co-trustees’ petition for approval of trustee accounting. (See Trunick, et al. v. Callaway, et al., (May 1, 2025, F084692, F085293) [nonpub. opn.].) Accordingly, we need not repeat it here. A. Prior Appeal from Judgment on Richard’s Amended Petition for Removal A combined trial o
People of Michigan v. Thomas Adrian Drury
If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports. STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED June 11, 2025 Plaintiff-Appellee, 11:32 AM V No. 368495 Oakland Circuit Court THOMAS ADRIAN DRURY, LC No. 2021-278145-FC Defendant-Appellant. Before: K. F. KELLY, P.J., and O’BRIEN and ACKERMAN, JJ. PER CURIAM. Defendant appeals as of right his jury-trial convictions of two counts of first-degree criminal sexual conduct, MCL 750.520b(1)(a) (victim under 13); MCL 750.520b(2)(b), and one count of second-degree criminal sexual conduct, MCL 750.520c(1)(a); MCL 750.520c(2)(b). We affirm. I. FACTS Defendant is the uncle of the complainant, who was six-years old at the time of the assault. According to the testimony given at defendant’s trial in September 2023, the complainant’s mother left the complainant in the care of her sister and defendant while the mother went to work on April 29, 2021. The complainant’s aunt went to an appointment, leaving defendant alone to care for the complainant, at which time the sexual abuse occurred. When the complainant’s mother picked the complainant up later in the day, the complainant disclosed that defendant sexually touched and penetrated her. The complainant’s mother contacted the police, and the complainant completed a sexual assault examination and a forensic interview. DNA testing detected defendant’s DNA on the complainant’s genitalia. Defendant testified on his own behalf at trial. He denied sexual activity with the victim. Regarding his interview with Detective Janeen Laity, he agreed that he told her “if something did happen, [he] genuinely [did not] remember.” He testified that he does remember now, and nothing happened, although he acknowledged that these statements conflict. He also admitted to telling Detective Laity that it was possible he touched the victim, but did not remember. He testified that he told Detective Laity that if the DNA established that he had “done something,” then he had -1- “done something.” Moreover, defendant admitted to having sexual thoughts about the victim, including thoughts about touching the victim’s vagina. The jury convicted defendant as stated above. This appeal followed. II. INSUFFICIENT EVIDENCE First, defendant argues that the evidence was insufficient to support that he penetrated the complainant beyond a reasonable doubt. We disagree. This Court reviews de novo a challenge to the sufficiency of the evidence. People v Ericksen, 288 Mich App 192, 195; 793 NW2d 120 (2010). Due process1 requires every element of a crime be proved beyond a reasonable doubt in order to sustain a criminal conviction. People v Hampton, 407 Mich 354, 366; 285 NW2d 284 (1979), citing In re Winship, 397 US 358, 364; 90 S Ct 1068; 25 L Ed 2d 368 (1970). When reviewing a challenge to the sufficiency of the evidence, the evidence is viewed in the light most favorable to the prosecution, and this Court must consider whether, based on that evidence, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. People v Smith- Anthony, 494 Mich 669, 676; 837 NW2d 415 (2013). Direct and circumstantial evidence, as well as all reasonable inferences that may be drawn from that evidence, are considered to determine whether the evidence was sufficient to sustain the defendant’s conviction. People v Hardiman, 466 Mich 417, 429; 646 NW2d 158 (2002). Under MCL 750.520b(1)(a), “[a] person is guilty of criminal sexual conduct in the first degree if he or she engages in sexual penetration with another person” when “[t]hat other person is under 13 years of age.” Defendant argues that there was insufficient evidence that he sexually penetrated the complainant because the complainant’s testimony that defendant “peed in my private” and “peed in my vulva” was insufficient to establish penetration. Penetration is more than mere contact. People v Payne, 90 Mich App 713, 722; 282 NW2d 456 (1979). MCL 750.520a(r) defines sexual penetration as “sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person’s body or of any object into the genital or anal openings of another person’s body, but emission of semen is not required.” In this case, the co
People of Michigan v. Laquan Johnson
If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports. STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED June 11, 2025 Plaintiff-Appellee, 10:01 AM v No. 369718 Genesee Circuit Court LAQUAN JOHNSON, LC No. 00-007029-FC Defendant-Appellant. Before: YATES, P.J., and YOUNG and WALLACE, JJ. PER CURIAM. In 2001, a jury convicted defendant, who was 17 years old at the time of the offenses, of second-degree murder, MCL 750.317; armed robbery, MCL 750.529; and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b.1 The trial court sentenced defendant to concurrent terms of life imprisonment with the possibility of parole for his second- degree murder conviction, 39 to 75 years’ imprisonment for his armed robbery conviction, and 32 to 48 months’ imprisonment for his larceny conviction. The trial court also sentenced defendant to two years’ imprisonment for his felony-firearm conviction, to run consecutively to his other sentences. Following the Michigan Supreme Court’s decision in People v Stovall, 510 Mich 301; 987 NW2d 85 (2022), defendant sought relief from judgment, arguing that he was entitled to resentencing because he was 17 years old at the time of the offense and sentenced to life imprisonment with the possibility of parole. The trial court resentenced defendant to serve concurrent terms of 24 to 45 years’ imprisonment for second-degree murder and 15 to 24 years’ imprisonment for armed robbery, and a consecutive term of two years’ imprisonment for felony- firearm. Defendant appeals as of right, arguing that his sentence for second-degree murder is disproportionate and unreasonable in light of his circumstances and the offense. We affirm. 1 Defendant was also convicted of larceny in a building, MCL 750.360, but we vacated this conviction in a previous appeal. People v Johnson, unpublished per curiam opinion of the Court of Appeals, issued February 3, 2004 (Docket No. 237200). -1- I. BACKGROUND In July 2000, when defendant was 17 years old, he and his codefendant, Cortorian Gale, entered into the victim’s home in Flint, Michigan, wearing masks. The victim’s minor children, cousins, and nephews were sleeping in the home when defendant and Gale entered. Defendant and Gale woke the children up at gunpoint, warning the children to do as they were told or they would be shot. Defendant and Gale moved the children into a room in the back of the home, next to the victim’s bedroom. While the children were secured in the room, defendant and Gale woke the victim at gunpoint and demanded money, guns, and drugs, each pointing their respective weapons at the victim. Defendant and Gale forced the victim into the basement to retrieve various items before they returned the victim to his bedroom. Following a struggle between defendant and the victim, Gale shot the victim in the chest, after defendant’s gun misfired. After the shooting, defendant and Gale ransacked the victim’s home and left in the victim’s vehicle. Emergency responders confirmed that the victim died at the scene of the shooting. In July 2022, the Michigan Supreme Court decided Stovall, 510 Mich at 322, holding that sentences of life with the possibility of parole for second-degree murder, imposed on a defendant who was a juvenile at the time of the offense, constituted cruel or unusual punishment. Defendant moved for a relief from judgment in light of Stovall, arguing that he was entitled to resentencing. The trial court agreed with defendant and granted his request for resentencing following Stovall. At resentencing, defense counsel emphasized defendant’s age at the time of the offense, defendant’s improved behavior in prison, defendant’s participation in prison programming, defendant’s family support, and the results of defendant’s independent psychological evaluation and criminogenic risk assessment. Defendant told the court that he was a different person at resentencing than he was at the time of the offense, and defendant acknowledged the impact of his decisions at that time. Defendant emphasized that he was not a danger to his community and was a better person. The trial court considered defendant’s criminal history, his age at the time of the offense, the nature of the offense, and the reports defendant provided for resentencing. The trial court sentenced defe
People of Michigan v. Elmer Sandford Klock
If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports. STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED June 11, 2025 Plaintiff-Appellee, 9:19 AM v No. 369878 Ionia Circuit Court ELMER SANDFORD KLOCK, LC No. 2023-018728-FH Defendant-Appellant. Before: BOONSTRA, P.J., and REDFORD and MARIANI, JJ. PER CURIAM. Defendant, Elmer Sandford Klock, appeals as of right his jury trial convictions of two counts of second-degree criminal sexual conduct (CSC-II) (victim under 13), MCL 750.520c(1)(a) and MCL 750.520c(2)(b); and three counts of CSC-II (victim between 13 and 16 years of age with whom defendant shares a household), MCL 750.520c(1)(b)(i).1 The trial court sentenced defendant to serve 50 months’ to 15 years’ imprisonment on all counts, to run concurrently. On appeal, defendant challenges the sufficiency of the evidence supporting his convictions, arguing he did not act for the purpose of sexual arousal, gratification, or another sexual purpose. Because a rational jury could find that all elements of the offenses were proven beyond a reasonable doubt, we affirm. I. FACTUAL BACKGROUND This case arises out of the prolonged sexual abuse of KP, the victim, by her stepfather, defendant. Beginning when KP was 10 or 11 years old, defendant began regularly lying in bed with her in the mornings before school and grabbing her breasts both over and under her clothing. Defendant later expanded this practice to any time of day when KP was in her room. During some of these encounters, defendant moved his hand down between her legs. On at least one occasion defendant touched the lips of her genitalia with his hand. When KP started to grow body hair at 1 Defendant was acquitted of one count of first-degree criminal sexual conduct, MCL 750.520b(2)(b); as well as one count of CSC-II, MCL 750.520c(1)(a) and MCL 750.520c(2)(b). -1- age 12 and started shaving, defendant began feeling KP’s legs and genital area to feel for unshaven hair, sometimes sending her back to the shower to shave again if he was unsatisfied. When KP was 13 years old and onward, defendant would slap, grab, and squeeze her buttocks and make comments regarding the size and qualities of her buttocks and breasts. KP kissed defendant on the lips regularly, though she testified that she did so because of pressure from defendant. At trial, defendant disputed that these acts occurred and testified that he was simply acting as a father showing paternal affection and looking after KP’s health. He repeatedly insisted that his actions had no sexual purpose. Testimony from KP’s mother generally aligned with defendant’s testimony. Defendant was convicted and sentenced, as stated earlier. Defendant now appeals. II. ANALYSIS Defendant argues that his convictions should be vacated because the evidence was insufficient for a reasonable jury to find that he acted for the purpose of sexual arousal, gratification, or another sexual purpose. We disagree. We review de novo questions of statutory interpretation and claims of insufficient evidence in a criminal case. People v Isrow, 339 Mich App 522, 526; 984 NW2d 528 (2021). “A challenge to the sufficiency of evidence underpinning a conviction implicates due process.” People v Darga, ___ Mich App ___, ___; ___ NW3d ___ (2023) (Docket No. 363178); slip op at 6. “Due process requires the prosecutor to introduce evidence sufficient for a trier of fact to find the defendant guilty beyond a reasonable doubt.” People v Jarrell, 344 Mich App 464, 480; 1 NW3d (2022). When reviewing a claim of insufficiency of the evidence, we must determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. at 480 (quotation marks, citation, and emphasis omitted). Furthermore, we are “required to draw all reasonable inferences and make credibility choices in support of the jury verdict.” People v Oros, 502 Mich 229, 239; 917 NW2d 559 (2018). Circumstantial evidence and reasonable inferences arising from that evidence can be sufficient to prove the elements of a crime. Id. MCL 750.520c states, in relevant part, as follows: (1) A person is guilty of criminal sexual conduct in the second deg
People of Michigan v. Donte Jamelle Smith
If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports. STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED June 11, 2025 Plaintiff-Appellee, 2:50 PM v No. 370182 Van Buren Circuit Court DONTE JAMELLE SMITH, LC No. 2023-024625-FH Defendant-Appellant. Before: YATES, P.J., and YOUNG and WALLACE, JJ. YOUNG, J. (concurring). I write separately to discuss the evidence supporting fourth-degree fleeing and eluding. Let’s revisit the record underlying this conviction—trial testimony from Michigan State Police Trooper Alex Sussdorf. Sussdorf testified that he was the trooper who conducted the traffic stop of Smith. Sussdorf testified, “I activated my siren, multiple different tones, airhorn and eventually after an extended period of time, got on my . . . loudspeaker, and gave multiple commands to stop the vehicle.” During that time, Smith had ventured over to the shoulder of I-94 “more than a couple times” but ultimately continued down the highway to an exit ramp. At oral argument, Smith’s appellate counsel said that Smith took the first possible exit he could off of I-94. As he was exiting the freeway, Smith threw a gun out of the car window. According to Sussdorf, “[t]he stop eventually occurred off the freeway, off M-51 in the Marathon gas station right there at the corner of M-51 and I-94.” In the light most favorable to the prosecutor, Smith, who was from out-of-state and had his minor children with him in the vehicle, drove about four minutes1 without accelerating to a gas 1 A patrol car dash cam was admitted as an exhibit at trial and was not submitted to this Court to review. According to the transcript, the playing of the footage at trial of the initial traffic violation to the exit ramp took four minutes. -1- station (which is objectively safer, better-lit, and has the potential to record the encounter), and in the interim, tossed a gun. There is no question that Smith, albeit momentarily, “willfully fail[ed] to obey” the lawful direction to stop over the matter of minutes it took him to get to “the first available gas station.”2 But he did not fail to obey the police order “by increasing the speed of the motor vehicle” or “extinguishing the lights of the motor vehicle.” The question is whether Smith momentarily failed to obey by “otherwise attempting to flee or elude the officer.” On the present record before this Court, I agree with the majority that Smith tossing a gun from his car while driving a distance of two miles is enough to support that he was trying to avoid being caught and thus, eluding, the police.3 As a result, I concur. /s/ Adrienne N. Young 2 This is a quote from appellant’s brief. I cannot confirm the accuracy of this statement based on the record as I am without the dash cam video or any other record support for this claim. There is no testimony on the record refuting this. 3 At oral argument, appellate defense counsel posited that the crime of fleeing and eluding pertains only to the adherence or nonadherence to the lawful traffic stop order and not eluding a separate criminal offense (e.g. tossing a gun to avoid a gun possession charge while in the process of pulling over is destruction of evidence or something similar, not fleeing and eluding.). This argument is interesting but not before this Court at this time. It does present an issue where an opinion from the Michigan Supreme Court would be welcome to the bench and bar. -2-
People of Michigan v. Donte Jamelle Smith
If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports. STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED June 11, 2025 Plaintiff-Appellee, 2:50 PM v No. 370182 Van Buren Circuit Court DONTE JAMELLE SMITH, LC No. 2023-024625-FH Defendant-Appellant. Before: YATES, P.J., and YOUNG and WALLACE, JJ. PER CURIAM. As a result of a strange car chase, defendant, Donte Jamelle Smith, was convicted by a jury of carrying a concealed weapon in a vehicle (CCW-auto), MCL 750.227, and fourth-degree fleeing and eluding, MCL 257.602a(2), but he was acquitted of three counts of second-degree child abuse, MCL 750.136b(3). On appeal, defendant challenges the constitutionality of MCL 750.227, as well as the sufficiency of the evidence supporting his convictions. We affirm. I. FACTUAL BACKGROUND On June 5, 2023, Michigan State Police Trooper Alex Sussdorf signaled defendant to stop his car because of a cracked windshield and an expired Arkansas license plate. Trooper Sussdorf turned on the overhead lights on his police cruiser, but defendant did not apply the brakes. Trooper Sussdorf then activated his siren and airhorn, and issued commands over the cruiser’s loudspeaker. Defendant repeatedly steered his car to the shoulder and repeatedly activated, and then deactivated, the vehicle’s right-turn signal, but steered back onto the freeway each time. Eventually, defendant drove up the off-ramp and stopped at a gas station, which was approximately two miles from where Trooper Sussdorf initiated the traffic stop. Before stopping, defendant did not accelerate; he just maintained a speed that was below the posted speed limit. As defendant drove onto the off-ramp, Trooper Sussdorf saw a suspected gun thrown from the car’s window. After defendant stopped, Trooper Sussdorf identified defendant as the driver of the car, and he also saw that defendant’s three children were passengers. Defendant told Trooper Sussdorf that a gun was in the vehicle, and a search revealed a loaded shotgun in the trunk of the car. Defendant denied throwing anything out of the car, but an unloaded 9mm Smith & Wesson -1- M&P handgun was recovered from the area where Trooper Sussdorf saw a suspected firearm being thrown from defendant’s vehicle. Defendant was asked whether he had a concealed pistol license. In response, defendant “sounded very confused,” he could not provide a concealed pistol license to Trooper Sussdorf, neither the car nor defendant’s wallet contained a concealed pistol license, and defendant had not been issued such a license by the State of Michigan. Defendant was tried on five charges before a jury on December 14, 2023. The jury returned not-guilty verdicts on the three charges of second-degree child abuse, but the jury found defendant guilty of CCW-auto and fourth-degree fleeing and eluding. Defendant now appeals of right. II. LEGAL ANALYSIS On appeal, defendant contests both of his convictions, but not his sentences. Specifically, he claims his conviction for CCW-auto must be overturned because the statute under which he was convicted, i.e., MCL 750.227, is unconstitutional. In addition, he challenges the sufficiency of the evidence supporting both convictions. We shall address these two arguments in turn. A. THE CONSTITUTIONAL CHALLENGE TO MCL 750.227 Defendant contends that MCL 750.227, and its prohibition of carrying a pistol in a vehicle without a concealed pistol license, must be deemed unconstitutional under the Second Amendment and the Fourteenth Amendment of the United States Constitution, as interpreted in New York State Rifle & Pistol Ass’n, Inc v Bruen, 597 US 1, 17; 142 S Ct 2111; 213 L Ed 2d 387 (2022). But that argument was never advanced in the trial court, so it is unpreserved for appellate purposes. Unpreserved constitutional claims are reviewed only for plain error affecting a defendant’s substantial rights. People v Carines, 460 Mich 750, 764; 597 NW2d 130 (1999). Ordinarily, all “[m]atters of constitutional and statutory interpretation are reviewed de novo,” People v Skinner, 502 Mich 89, 99; 917 NW2d 292 (2018), but under the plain-error rule, unpreserved constitutional claims require a showing that: (1) an error occurred; (2) the error was plain; and (3) the plain error affected the
In Re Om Minor
If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports. STATE OF MICHIGAN COURT OF APPEALS UNPUBLISHED June 11, 2025 11:58 AM In re OM, Minor. No. 373430 Genesee Circuit Court Family Division LC No. 22-138053-NA Before: YATES, P.J., and YOUNG and WALLACE, JJ. PER CURIAM. Respondent-father appeals as of right the trial court’s order assuming jurisdiction over the minor child, OM, under MCL 712A.2(b)(1) and (2). For the reasons set forth in this opinion, we affirm the trial court’s order. I. BACKGROUND AND PROCEDURAL HISTORY In March 2022, petitioner, the Department of Health and Human Services (DHHS), filed a petition to remove OM and her siblings from their mother’s care based on reports of physical and emotional abuse, as well as their mother’s declining mental health.1 The trial court authorized DHHS’s petition and placed OM with respondent-father, her legal father.2 DHHS sought to make respondent-father a respondent in those proceedings because of his criminal record and history with CPS, but the trial court declined to do so. Respondent-father frequently expressed an unwillingness to care for OM and eventually placed her with his adult son. As OM’s mother progressed in her services, the trial court returned the children to her care. However, the court later removed the children again in January 2023 after OM and her sibling, ZM, disclosed that their mother’s boyfriend sexually abused them and that their mother was aware of the abuse. OM 1 The children’s mother is not a party to this appeal. 2 Respondent-father is not the father of any of OM’s siblings. -1- was again placed in respondent-father’s care with the requirement that their mother only have supervised contact with OM and that their mother’s boyfriend have no contact with OM. Several issues arose while OM was in respondent-father’s care. Respondent-father refused to bring OM to scheduled parenting-time visits with her mother, he refused to comply with subpoenas for OM to testify in her mother’s case, he refused to let OM participate in court-ordered therapy, and he refused to let DHHS caseworkers meet with OM. Respondent-father’s compliance with the court’s orders improved slightly after the court chastised respondent-father for his noncompliance, but this improvement was only temporary. Respondent-father again refused to let OM testify in her mother’s trial, he refused to let DHHS or OM’s court-appointed special advocate (CASA) meet with her, and he continued to keep OM out of therapy. DHHS again sought to make respondent-father a respondent in the child protective proceedings after it learned that respondent- father allowed OM’s mother and her boyfriend to have unsupervised visits with OM. Respondent- father also told OM’s CASA that he wanted OM returned to her mother’s care. The court authorized DHHS’s petition and allowed for in-home jurisdiction while reiterating to respondent- father the court’s orders. The trial court removed OM from respondent-father’s care in June 2024 after OM’s caseworker and CASA reported concerns about OM’s well-being in respondent-father’s care. Respondent-father limited OM’s access to people outside his home, OM’s hair was matted and had mold in it, there were concerns about OM’s nutrition, and there were concerns about respondent-father’s temper with OM. Respondent-father still refused to let OM attend therapy, he refused to address OM’s educational needs, and he frequently stated that he would return OM to her mother even if the court terminated her parental rights to OM. At respondent-father’s adjudication trial, the court heard testimony from OM’s caseworker and CASA about respondent-father’s noncompliance with the court’s orders, respondent-father’s refusal to address OM’s mental-health and educational needs, and OM’s demeanor around respondent-father after removal. Moreover, the court heard testimony that OM had “flourished” since her removal from respondent-father’s care, including that she was engaged in therapy and doing very well academically. While respondent-father testified that he provided for all of OM’s needs, OM’s fictive kin3 placement testified about OM’s concerning weight, appearance, demeanor, academic performance, an
In Re Guardianship of Is
If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports. STATE OF MICHIGAN COURT OF APPEALS In re Guardianship of IS. ODETA MUCAJ, UNPUBLISHED June 11, 2025 Appellant, 9:30 AM v No. 372484 Oakland Probate Court ELISABETH DERY, Successor Guardian of IS, a LC No. 2021-403561-DD legally protected person, Appellee, and SHALANDA C. LEGGS and HENRY SPAHIU, Other Parties. Before: BOONSTRA, P.J., and REDFORD and MARIANI, JJ. PER CURIAM. In this guardianship proceeding under the Mental Health Code (MHC), MCL 330.1001 et seq., appellant appeals as of right the trial court’s opinion and order modifying the guardianship of appellant’s daughter, IS, which provided that the court removed appellant as a partial coguardian of IS, and it appointed appellee, a professional guardian and IS’s partial coguardian, as sole partial guardian of IS. We affirm because the trial court reached the correct result, albeit under the improper statutory framework. I. FACTUAL BACKGROUND A factual summary regarding the underlying guardianship proceedings was previously provided by a panel of this Court in In re Guardianship of IS, unpublished per curiam opinion of the Court of Appeals, issued January 25, 2024 (Docket No. 367266), pp 1-2: -1- In 2007, when IS was a young child, she was injured in a car accident and suffered a traumatic brain injury resulting in permanent disabilities requiring ongoing care into her early adulthood. In November 2021, shortly after IS’s 18th birthday, [appellant] filed a petition seeking appointment as IS’s plenary guardian. According to [appellant], IS had substantial functional limitations with self-care, mobility, economic self-sufficiency, receptive and expressive language, learning, and capacity for independent living. The probate court ordered an independent evaluation of IS, as required by the MHC, MCL 330.1612(3), and appointed IS an attorney. Following numerous adjournments, on October 6, 2022, the parties signed a temporary stipulated order agreeing that [appellant] and appellee . . . would serve as partial coguardians of IS. The parties also agreed to share guardianship duties in an arrangement designed to maximize IS’s independence. For instance, the order entitled [appellant] to make all of IS’s legal decisions, [appellee] to manage IS’s finances, and IS to determine her own educational and employment pursuits. The order also maintained IS’s current living arrangement and provided that IS and both her parents must be consulted about her medical treatment, with any disputes resolved by [appellee]. On October 17, 2022, the court entered a separate order granting [appellant’s] petition and appointing [appellant] and [appellee] as partial coguardians for a term of five years. This order provided that [appellant] and [appellee] had to file an acceptance of the coguardian appointment. [Appellee], but not [appellant], did so. Nonetheless, the probate court issued letters of guardianship to both individuals stating that they were appointed and qualified to act as partial coguardians of IS. In December 2022, the probate court issued a notice to [appellant] stating that she was not qualified to act as coguardian because she had not filed an acceptance of appointment. [Appellant] was then absent from the 90-day review hearing, during which both [appellee] and IS’s father expressed concerns regarding [appellant’s] conduct. They alleged that [appellant] had isolated IS and barred them from having any contact with IS. The probate court ordered [appellant] to allow IS to meet with [appellee] by January 31, 2023, and that if [appellant] refused to cooperate, a modification of the guardianship might be required. Before the next review hearing, IS’s appointed guardian ad litem (GAL) provided a report to the probate court that recommended removal of [appellant] as partial coguardian. On June 13, 2023, [appellant] was again absent from the review hearing. The GAL, [appellee], and IS’s attorney complained that [appellant] was prohibiting IS from exercising independence despite IS’s academic and personal achievements and that [appellant] purposely thwarted the parties’ efforts to contact or meet with IS. At the conclusion of the hearing, the probate court, on its own motion, removed [appellant] as partial coguardian and appointed [appellee]
City of East Lansing v. Joanne L Danzig
If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports. STATE OF MICHIGAN COURT OF APPEALS CITY OF EAST LANSING, UNPUBLISHED June 11, 2025 Plaintiff-Appellee, 10:22 AM v No. 370806 Ingham Circuit Court JOANNE L. DANZIG, LC No. 24-000188-AR Defendant-Appellant. Before: YATES, P.J., and YOUNG and WALLACE, JJ. PER CURIAM. In this case we once again address an issue that is settled law. “Failing to provide identification upon request by a police officer is not itself a crime or statutory offense in Michigan.” People v Murawski, ___ Mich App ___, ___; ___ NW3d ___ (2023) (Docket No. 365852); slip op at 9. Defendant was part of a group involved in a dispute over a bill at a hotel bar. Hotel staff called the police, and the police briefly detained defendant in an alleged Terry1 stop. Defendant refused to give an officer her identification when she was asked. The officer arrested defendant under East Lansing City Ordinance § 26-52(18), and defendant was charged under the same ordinance. Defendant moved to dismiss the charge in the district court because, she argued, she did not physically resist or obstruct the officer and, therefore, she could not have violated the ordinance. The district court denied her motion, and the circuit court denied her application for leave to appeal. We reverse and remand with the instruction to dismiss defendant’s charge. I. BACKGROUND After officers arrived at the hotel, defendant’s husband was asked for his identification, which he provided. After defendant twice refused to provide her identification to an officer, the officer told defendant that she would be arrested if she did not provide identification. Defendant 1 Terry v Ohio, 392 US 1; 88 S Ct 1868; 20 L Ed 2d 889 (1968). -1- then held out her wrists to allow the officer to arrest her. Defendant was cited for a misdemeanor violation of East Lansing City Ordinance § 26-52(18), which provides that “No person shall . . . [p]hysically obstruct, resist or hinder any member of the police force, any peace officer, or firefighter in the discharge of their lawful duties.” Defendant moved in the district court to dismiss the charge on the grounds that the language of the ordinance required defendant to physically “obstruct, resist or hinder,” and she argued that she physically complied with the arrest. The district court denied her motion. Defendant applied for leave to appeal to the circuit court, and the circuit court denied her request for leave. Defendant now appeals to this Court as on leave granted.2 II. ANALYSIS Defendant argues that her conduct did not rise to the level of physical obstruction, resistance, or hindrance, and, therefore, she was not in violation of the ordinance. “Municipal ordinances are interpreted and reviewed in the same manner as statutes.” City of Grand Rapids v Brookstone Capital, LLC, 334 Mich App 452, 457; 965 NW2d 232 (2020) (quotation marks and citation omitted). Accordingly, the rules governing statutory interpretation apply and our review of the trial court’s interpretation of the ordinance is de novo. Id. The parties disputed in the trial court whether the adverb “physically” modified only the word “obstruct,” or all verbs in the ordinance. The district court agreed with defendant that it modified “obstruct,” “resist,” and “hinder.” On appeal, the prosecution continues to argue that “physically” should only modify “obstruct.” However, our case law leads us to conclude that we must read the ordinance by applying the adverb “physically” to all of the verbs in the series because “ ‘[w]hen several words are followed by a clause which is applicable as much to the first and other words as to the last, the natural construction of the language demands that the clause be read as applicable to all.’ ” Sanford v State, 506 Mich 10, 20 n 18; 954 NW2d 82 (2020), quoting Porto Rico R, Light & Power Co v Mor, 253 US 345, 348; 40 S Ct 516; 64 L Ed 944 (1920). The Michigan Supreme Court has articulated that physical obstruction is present when a police officer is “faced with a situation in which his next act would, more likely than not, involve physical confrontation.” People v Vasquez, 465 Mich 83, 98; 631 NW2d 711 (2001). It does not require actual interference; “[r]ather, any conduct that rises
People of Michigan v. Steven Hamilton Street II
If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports. STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED June 11, 2025 Plaintiff-Appellee, 12:04 PM v No. 362384 Kent Circuit Court STEVEN HAMILTON STREET II, LC No. 20-003725-FC Defendant-Appellant. Before: BOONSTRA, P.J., and REDFORD and MARIANI, JJ. PER CURIAM. Defendant, Steven Hamilton Street II, appeals as of right his jury trial convictions of two counts of first-degree criminal sexual conduct (CSC-I), MCL 750.520b(2)(b) (person less than 13 years old, defendant 17 years old or older); and one count of second-degree criminal sexual conduct (CSC-II), MCL 750.520c(1)(a) (person less than 13 years old). The trial court sentenced defendant as a third-offense habitual offender, MCL 769.11, to serve concurrent prison terms of 25 to 50 years for each CSC-I conviction, and 7 to 30 years for the CSC-II conviction. On appeal, defendant argues that the trial court abused its discretion by admitting certain evidence, that the prosecutor committed prejudicial misconduct, that defendant did not receive effective assistance of counsel, and that the investigating officer mishandled potentially exculpatory evidence. Finding no error requiring reversal, we affirm. I. BASIC FACTS AND PROCEEDINGS The victim, AM, called defendant “Uncle Steve” because of his long-standing friendship with AM’s family, her father in particular. On April 13, 2020, defendant visited AM’s home, where he drank alcohol and smoked marijuana with AM’s father while AM’s mother tended to household tasks. According to testimony at defendant’s trial, the men consumed enough tequila to be described as “very intoxicated.” After the men had eaten, AM’s father fell asleep at the kitchen table, and defendant sat on the couch with AM, who was playing a video game. When AM’s mother finished eating, she went outside to smoke on the porch. She had just lit her cigarette when AM came outside and said that she thought something was wrong with Uncle Steve because he was “messing with his pants.” When AM’s mother asked AM what she meant, AM said that -1- defendant “was trying to undo his pants, he tried to pull my pants down.” AM’s mother recalled AM telling her that defendant pulled down AM’s pants, licked her vagina and asked if it felt good, and lifted up her shirt and touched and licked her breasts. AM’s mother testified that AM was acting “scared” and “nervous and afraid,” as if she “didn’t want to go back inside.” AM was seven years old when these things took place. AM’s mother testified that she went back into the house and confronted defendant as he was preparing to leave, but he denied the allegations and left the house. After AM informed her father of the incident, AM’s parents discussed what would be the right thing to do. AM’s mother took AM to the police station that evening to report the incident. A detective assigned to the case the following day arranged for AM to undergo a forensic interview at the Children’s Advocacy Center (CAC) and a forensic medical examination at the YWCA; both appointments were scheduled for April 15, 2020. During her forensic interview, AM described defendant touching and licking her nipples, licking her vagina, and digitally penetrating her vagina. Stephanie Solis, a registered nurse employed by the Grand Rapids YWCA as the Director of the Nurse Examiner Program, performed AM’s forensic examination, which included collecting swabs of AM’s mouth, vulva, anus, and right breast. Solis sent the swabs in a sexual-assault kit to the Michigan State Police Laboratory for analysis. Defendant was arrested and eventually charged, as indicated. The prosecution extended a plea offer. Defendant rejected the plea offer and went to trial after DNA results showed that defendant’s DNA was on AM’s right breast, along with the DNA of AM and one other contributor, but not on her genitalia. At defendant’s trial, AM testified that she was seven years old when defendant touched her in a way that made her feel uncomfortable and scared. AM recounted that defendant pulled down her pants and used his tongue to lick her vagina underneath her underwear. AM could not remember whether defendant touched any other part of her body. To refresh AM’s memory of the forensic interview, the prosecutor used her laptop and a pair of headphones to show AM a three- minute excerp
People of Michigan v. Patrick Wayne Koger
If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports. STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED June 11, 2025 Plaintiff-Appellee, 12:10 PM v No. 368488 Oakland Circuit Court PATRICK WAYNE KOGER, LC No. 2020-275314-FH Defendant-Appellant. Before: K. F. KELLY, P.J., and O’BRIEN and ACKERMAN, JJ. PER CURIAM. Defendant appeals as of right his jury-trial convictions for third-degree fleeing and eluding a police officer, MCL 257.602a(3)(a); carrying a firearm during commission of a felony (felony- firearm), third offense, MCL 750.227b; felon in possession of a firearm (felon-in-possession), MCL 750.224f; assaulting, resisting, or obstructing a police officer, MCL 750.81d(1); operating under the influence (OUI), MCL 257.625; operating with license suspended or revoked, MCL 257.904(1); and failure to stop after a collision, MCL 257.620. We affirm. I. BACKGROUND This case arises out of a hit-and-run incident on April 22, 2020, in Southfield, Michigan. According to testimony at defendant’s trial, at about 10:50 p.m. on that day, 911-dispatch- supervisor Lauren Richards received a call from Richard Billingslea, who stated that a Crown Victoria had hit his car at the intersection of 9 Mile Road and Telegraph Road, then fled. Billingslea gave the plate of the vehicle and a description of the driver. Billingslea also said that the other driver had pointed a gun at him. Before trial, defendant stipulated to the admission of all of the prosecution’s exhibits, including Billingslea’s 911 call, and that call was played for the jury without objection. Officer Joseph Martinez of the Southfield Police Department responded to Billingslea’s call. At defendant’s trial, Officer Martinez testified that Billingslea told him the same information that Billingslea relayed in his 911 call. After speaking with Billingslea, Officer Martinez drove to a nearby park to write his report. While preparing the report, Officer Martinez saw a Crown Victoria matching the description given by Billingslea drive by. Officer Martinez followed the car -1- and activated the lights of his patrol car, but the Crown Victoria did not pull over. Instead, the Crown Victoria led Officer Martinez on a highspeed chase into a residential neighborhood, where the Crown Victoria eventually went into a ditch. Defendant, the driver of the Crown Victoria, then fled on foot and was tackled by another officer. A different officer searched the Crown Victoria and found a handgun under the driver’s seat. The gun’s serial number was associated with Tina Boston-Smith. Boston-Smith was called as a defense witness at trial. She testified that defendant had driven his Crown Victoria to her house on the afternoon of April 22, 2020. Then later that day, while defendant stayed at Boston-Smith’s house, Boston-Smith took defendant’s Crown Victoria to the store. Boston-Smith—who had a concealed pistol license—took her firearm with her and tucked it underneath the driver’s seat of defendant’s car. After she returned from the store, she left her gun in defendant’s car but did not realize her mistake until the next day. Defendant was convicted as previously stated. This appeal followed. II. HEARSAY AND THE CONFRONTATION CLAUSE Defendant argues that the trial court erroneously allowed Officer Martinez to testify about statements made by Billingslea because the testimony was inadmissible hearsay and violated defendant’s rights under the Confrontation Clause. Defendant alternatively argues that his trial counsel was ineffective for not objecting to Officer Martinez’s allegedly-inadmissible testimony. Neither argument warrants appellate relief. A. PRESERVATION AND STANDARD OF REVIEW “To preserve an evidentiary issue for review, a party opposing the admission of evidence must object at trial and specify the same ground for objection that it asserts on appeal.” People v Thorpe, 504 Mich 230, 252; 934 NW2d 693 (2019). Defendant did not object to Officer Martinez’s disputed testimony during trial, so defendant’s challenge to the substantive admissibility of the officer’s testimony is unpreserved. An unpreserved issue is reviewed for plain error affecting substantial rights. People v Shafier, 483 Mich 205, 211; 768 NW2d 305 (2009); Thorpe, 5
People of Michigan v. Kaine Daniel Hardenburgh
If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports. STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED June 11, 2025 Plaintiff-Appellee, 2:16 PM V No. 364932 Grand Traverse Circuit Court KAINE DANIEL HARDENBURGH, LC No. 2022-014208-FH Defendant-Appellant. Before: MARIANI, P.J., and MALDONADO and YOUNG JJ. PER CURIAM. Defendant appeals as of right his jury-trial conviction of first-degree home invasion, MCL 750.110a(2). We affirm. I. BACKGROUND In July 2022, defendant entered a house that he owned and went into a bedroom, where his ex-girlfriend at the time was asleep in bed with a man she was then dating (“the victim”). Defendant and his ex-girlfriend were the parents of young twins, and they all had formerly lived in the house together. At all times relevant to this case, however, defendant was not permitted to be within 500 feet of the house due to an existing bond order stemming from a domestic violence case between defendant and the ex-girlfriend. The ex-girlfriend was not subject to any such limitation and continued to live in the house. Testimony at trial established that defendant had previously ejected the victim from the house while breaking up a party involving underage drinking, and according to defendant’s theory of the case, he believed he had to enter the house on the day in question in order to protect his children from the victim. When defendant entered the bedroom, the ex-girlfriend and the victim awoke. Defendant climbed onto the bed and struck the victim several times, and then both men left the house. Evidence and testimony at trial indicated that the ex-girlfriend then met defendant later that day in a parking lot to retrieve the children for visitation. When defendant was later interviewed by police, he acknowledged speaking with his ex-girlfriend over the phone on the day of the incident in question but repeatedly denied having any other contact with her that day. Recorded portions of this conversation were played for the jury. Defendant did not testify at trial. -1- The jury found defendant guilty of first-degree home invasion. This appeal followed. II. JURY INSTRUCTIONS Defendant first argues that the trial court erred by improperly modifying the jury instructions regarding the elements of first-degree home invasion and by failing to properly instruct the jury on certain common-law defenses. We disagree. “Claims of instructional error are reviewed de novo.” People v Milton, 257 Mich App 467, 475; 668 NW2d 387 (2003). A defendant has the right to “a properly instructed jury.” People v Mills, 450 Mich 61, 80; 537 NW2d 909 (1995). This means that the trial court “is required to instruct the jury concerning the law applicable to the case and fully and fairly present the case to the jury in an understandable manner.” Id. Furthermore, when a defendant requests an instruction on a theory or defense that has evidentiary support, generally the trial court is required to provide it. Id. at 81; see People v McKinney, 258 Mich App 157, 162-163; 670 NW2d 254 (2003) (explaining that “[j]ury instructions must include all the elements of the charged offenses and any material issues, defenses, and theories that are supported by the evidence”). Nevertheless, jury instructions are reviewed “in their entirety to determine if there is error requiring reversal.” People v McFall, 224 Mich App 403, 412; 569 NW2d 828 (1997). There is no error where the instructions “fairly presented the issues to be tried and sufficiently protected the defendant’s rights.” Milton, 257 Mich App at 475. Moreover, “[t]rial judges should not hesitate to modify or disregard the [criminal jury instructions] when presented with a clearer or more accurate instruction.” People v Richardson, 490 Mich 115, 120; 803 NW2d 302 (2011) (alterations in original). A. PERMISSION As noted, defendant was convicted of first-degree home invasion under MCL 750.110a(2). As is relevant here, the first element of that offense requires that the defendant either: (1) break and enter a dwelling or (2) enter a dwelling without permission. MCL 750.110a(2); see People v Wilder, 485 Mich 35, 43; 780 NW2d 265 (2010). The phrase “without permission” is defined as “without having obtained
People of Michigan v. Dorian Johnson
If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports. STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED June 11, 2025 Plaintiff-Appellee, 2:25 PM v No. 365266 Wayne Circuit Court DORIAN JOHNSON, LC No. 21-002143-01-FC Defendant-Appellant. Before: MARIANI, P.J., and MALDONADO and YOUNG JJ. PER CURIAM. Defendant appeals by right his jury-trial convictions of second-degree murder, MCL 750.317; felon in possession of a firearm, MCL 750.224f; and two counts of carrying a firearm during the commission of a felony, MCL 750.227b. We affirm. I. BACKGROUND Shortly after midnight on July 27, 2020, defendant placed a call for emergency assistance; he told the 911 dispatcher that he had found a woman (the victim) along the side of the road bleeding from her head, and that he had blood all over himself. Defendant drove the victim to a nearby fire station and met with first responders there. The victim was in the front passenger seat of defendant’s car and there was blood in that area of the car. The victim was still alive and was transported to the hospital. Defendant was placed in the back of a police vehicle and briefly questioned. Defendant told the police, as he had told the 911 dispatcher, that he had found the victim near some railroad tracks and brought her to the fire station for assistance. He also identified the victim and explained that there had been an incident or argument involving the victim and another woman earlier that day. As the evidence would later establish, defendant had a romantic relationship with the victim -1- and was also involved with the other woman.1 After the police finished questioning defendant, they placed him under arrest on outstanding traffic warrants. Defendant was questioned again the next day, after he had been taken to the police station and had agreed to waive his constitutional rights. Defendant again told the police that he had found the victim along a road near some railroad tracks. Defendant stated that he and the victim had been at his mother’s house earlier that night. He had left the victim outside of the house as he went inside to use the bathroom, but when he returned, the victim was gone. Defendant explained that he could not call the victim to find her because she had left her phone in his car, and that the victim’s car remained parked outside of the house. Defendant stated that he then decided to drive to a liquor store and, on the way, he saw the victim’s body along the road. Defendant also described again the argument that had occurred earlier that night, explaining that the friend had become upset with defendant because defendant had opted to spend time with the victim rather than the friend. Defendant additionally mentioned that he and the victim had argued earlier in the day, but that it had been “smoothed over” quickly. Eventually, defendant requested a lawyer, and the interview ended. The victim died on July 27, 2020, as a result of a gunshot wound to the back of the head. Her autopsy indicated that the wound was not self-inflicted, and bullet fragments were recovered from her body. A search of the area where defendant stated that he had found the victim uncovered no evidence. A search of defendant’s car revealed a firearm in between the rear seat and the trunk, and a holster in the front center console. A fragment of a bullet was also recovered from the front passenger seat and another bullet fragment was found in the trunk underneath a mat. The bullet fragment found in the trunk was a match to the firearm. A bullet fragment recovered during the victim’s autopsy was consistent with the type of firearm found in defendant’s car. Blood and a possible bullet impact were found on the inside of the front passenger door of defendant’s car, and what appeared to be human tissue was found on the window; blood was not found, however, on the area of the front passenger seat where the victim would have been sitting, nor was blood found on defendant. The medical examiner confirmed that the injury to the victim’s head would have affected her ability to run or crawl; there was also no indication of abrasions on the victim’s legs, hands, or arms. DNA testing showed that DNA found on the trigger and grip of the firearm was a match to defendant’s and the victim’s DNA, but not to the f
People of Michigan v. Danny Darnell White Jr
If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports. STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED June 11, 2025 Plaintiff-Appellee, 2:21 PM v No. 365749 Macomb Circuit Court DANNY DARNELL WHITE JR., LC No. 22-001202-FC Defendant-Appellant. Before: MARIANI, P.J., and MALDONADO and YOUNG, JJ. PER CURIAM. Defendant appeals by right his convictions by a jury of first-degree premeditated murder, MCL 750.316(1)(a); felon in possession of a firearm (felon-in-possession), MCL 750.224f; and two counts of possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b. Defendant was sentenced as a fourth-offense habitual offender, MCL 769.12, to life imprisonment without the possibility of parole for first-degree murder; two to five years’ imprisonment for felon-in-possession; and two years’ imprisonment for each felony-firearm conviction. We affirm. I. FACTUAL BACKGROUND This case arises out of the September 28, 2021 shooting death of the victim. Defendant was a friend of the victim, and the victim regularly sold him marijuana. At the time of the victim’s death, defendant owed the victim $625. A neighbor’s security camera established that at 8:40 p.m. on the night of the murder, defendant’s vehicle pulled in front of the victim’s home. An individual entered the home, then exited at 9:01 p.m. The vehicle then drove away with its headlights off. The next morning, the victim’s body was found in his basement by his children. After conducting a search of the area, police discovered a vape pen in the victim’s hand and two handguns stored in lockboxes in a nearby closet. No other weapons were present. An autopsy revealed that the victim’s cause of death was multiple gunshot wounds, fired from as close as 2½ to 3 feet away from the victim; the manner of death was ruled a homicide. -1- Defendant was subsequently interviewed by police. Initially, defendant denied involvement, but he eventually changed his story and admitted to shooting the victim, explaining that he did so in self-defense. Defendant stated that the victim pointed a large gun at him and threatened to shoot him if he did not pay him the money owed. The interview video was played for the jury during trial. Defendant testified at trial in his own defense. The jury found defendant guilty of first-degree premediated murder, felon-in-possession, and two counts of felony-firearm. Defendant was sentenced as stated. This appeal followed. II. SUFFICIENCY OF THE EVIDENCE Defendant first argues that the evidence presented at trial was insufficient to support his first-degree murder conviction—namely, to establish premeditation and to disprove his claim on self-defense. We disagree. “We review de novo challenges to the sufficiency of the evidence, examining the evidence in a light most favorable to the prosecution to determine whether a rational trier of fact could have found every essential element proved beyond a reasonable doubt.” People v Mitchell, 301 Mich App 282, 289-290; 835 NW2d 615 (2013). “Circumstantial evidence and reasonable inferences arising therefrom may be sufficient to prove the elements of a crime.” People v Nelson, 234 Mich App 454, 459; 594 NW2d 114 (1999). The prosecution “is not obligated to disprove every reasonable theory consistent with innocence to discharge its responsibility; it need only convince the jury in the face of whatever contradictory evidence the defendant may provide.” People v Nowack, 462 Mich 392, 400; 614 NW2d 78 (2000) (quotation marks and citation omitted). “A jury is free to believe or disbelieve, in whole or in part, any of the evidence presented. The jury may choose to believe part of a witness’s testimony and disbelieve another part of the same witness’s testimony.” People v Baskerville, 333 Mich App 276, 283-284; 963 NW2d 620 (2020) (quotation marks, citations, and alteration omitted). “All conflicts in the evidence are resolved in favor of the prosecution. This Court will not interfere with the trier of fact’s determinations regarding the weight of the evidence or the credibility of witnesses.” People v Stevens, 306 Mich App 620, 628; 858 NW2d 98 (2014) (citations omitted). A. PREMEDITATION We do not see merit in defendant’s claim th
Collin McCleary v. CTL Corporation
COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS COLLIN McCLEARY, § No. 08-24-00116-CV Appellant, § Appeal from the v. § 109th District Court CTL CORP., § of Winkler County, Texas Appellee. § (TC# DC20-17766) JUDGMENT The Court has considered this cause on the record and concludes there was no error in the judgment. We therefore affirm the judgment of the court below. We further order that Appellee recover from Appellant all costs of appeal, and that this decision be certified below for observance. IT IS SO ORDERED this 11th day of June 2025. MARIA SALAS MENDOZA, Chief Justice Before Salas Mendoza, C.J., Palafox and Soto, JJ. Palafox, J., concurring without written opinion
Collin McCleary v. CTL Corporation
COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS COLLIN McCLEARY, § No. 08-24-00116-CV Appellant, § Appeal from the v. § 109th District Court CTL CORP., § of Winkler County, Texas Appellee. § (TC# DC20-17766) MEMORANDUM OPINION This case involves the explosion of a pipeline when it became over-pressurized while nitrogen was being pumped into it. Appellant Collin McCleary alleged that the explosion, and his injuries, were caused by the negligence of CTL Corporation. McCleary appeals the trial court’s summary judgment in favor of CTL. I. FACTUAL AND PROCEDURAL BACKGROUND1 DCP Operating Company, LP was constructing the Red Bluff Loop Pipeline in West Texas. It contracted with Holloman Corporation to build the pipeline and with CTL to oversee the construction. Martin Smith was CTL’s chief inspector for the project. 1 The facts are taken from the parties’ pleadings and summary judgment evidence. The facts are largely undisputed; the parties only disagree on whether those facts, as a matter of law, entitle CTL to summary judgment. For the final stages of construction, Holloman hired N2 Solutions, LLC to apply a “nitrogen blanket”—pumping the pipeline with nitrogen to purge it of all oxygen. McCleary, an employee of WestAir Gases & Equipment, delivered the nitrogen to the Wink interconnect station. Using a “Y” connector, an N2 employee pumped the nitrogen from the truck into two segments of the pipeline totaling 110 miles, one branch going east towards the Roberts Ranch connection site and the other going west towards the Orla connection site. The Y connector was equipped with a pressure relief pop-off safety valve (PSV) on one side of the Y connector, the side that led to the Orla branch of the pipeline.2 The Orla segment reached the desired pressure, and someone closed the entry point valve sealing the end of that section of the pipeline. An N2 technician also closed a valve on the Y connector because, as he testified, he did not trust the entry point valve. Closing that second valve isolated the PSV, so that it no longer detected pressure changes. Despite continuous pumping, the pressure reading for the Roberts Ranch segment of the pipeline remained at 0. The only pressure gauge at the Wink interconnect station was digital and required electricity to operate. To get a reading from that gauge, Smith turned on a generator. The generator powered all the equipment at the site, including the pipeline. In his deposition, Smith admitted that he went beyond his job responsibilities (inspecting and overseeing) by turning on the generator and powering up the site. The pipeline was equipped with a safety feature which automatically closes gate valves when low pressure is detected.3 Smith, as well as employees of Holloman and N2, testified that they did not know that the automatic system was installed on the pipeline. When Smith turned on 2 When pressure reaches a designated point, the PSV will release air and make a loud noise to alert the crew that the pressure is approaching its limit. 3 As was explained during oral argument, the safety feature is designed to prevent environmental leakage when the pipeline is operational. It assumes that a low-pressure reading is caused by a breach in the line and automatically closes valves to contain the gas. 2 the generator, the low pressure triggered this automatic system and the gate valves closed. N2 continued to pump nitrogen into what was now only 120 feet of pipeline instead of 110 miles. Because the PSV was isolated, there was no warning that pressure was dangerously high. About ten minutes after turning on the generator, the pipeline exploded. McCleary alleged that the explosion caused him hearing loss and injuries to his back and shoulder. II. PROCEDURAL BACKGROUND McCleary filed a suit for negligence and gross negligence against CTL.4 After discovery was conducted, CTL filed a combined traditional and no-evidence motion for summary judgment. In the no-evidence motion, it argued that McCleary had no evidence of any of the elements of negligence or gross negligence. In the traditional motion, CTL argued that, as a matter of law, two elements of McCleary’s claims (duty and foreseeability) were conclusively negated. McCleary filed a response and summary judgment evidence, to which CTL objected. The trial court sustained CTL’
In re: Fred Tucker
FILED JUN 11 2025 NOT FOR PUBLICATION SUSAN M. SPRAUL, CLERK U.S. BKCY. APP. PANEL OF THE NINTH CIRCUIT UNITED STATES BANKRUPTCY APPELLATE PANEL OF THE NINTH CIRCUIT In re: BAP No. CC-24-1139-GFS FRED TUCKER, Debtor. Bk. No. 2:24-bk-15457-VZ FRED TUCKER, Appellant, v. MEMORANDUM* PNC BANK, N.A., Appellee. Appeal from the United States Bankruptcy Court for the Central District of California Vincent Zurzolo, Bankruptcy Judge, Presiding Before: GAN, FARIS, and SPRAKER, Bankruptcy Judges. Memorandum by Judge Gan. Concurrence by Judge Gan. INTRODUCTION Chapter 13 1 debtor Fred Tucker (“Debtor”) appeals the bankruptcy court’s order granting stay relief to PNC Bank, N.A. (“PNC”) under § 362(d)(1) and in rem relief under § 362(d)(4). * This disposition is not appropriate for publication. Although it may be cited for whatever persuasive value it may have, see Fed. R. App. P. 32.1, it has no precedential value, see 9th Cir. BAP Rule 8024-1. 1 Unless specified otherwise, all chapter and section references are to the Debtor did not obtain a stay pending appeal, and the property was sold to a third party through a nonjudicial foreclosure. Subsequently, the bankruptcy court dismissed the chapter 13 case, and Debtor did not appeal the dismissal order. As a result, we cannot grant effective relief as it pertains to stay relief under § 362(d)(1), and that portion of the appeal is moot. We have previously stated that an appeal from an order entered under § 362(d)(4) is not moot if, as is the case here, Debtor retains possession.2 In his informal brief, Debtor articulates a single argument relating to the stay relief order: PNC did not adequately serve the motion for stay relief on junior lienholders. Debtor lacks standing to assert rights of third parties, and he offers no argument directed to the relief granted against him. Moreover, the court’s decision is amply supported by evidence in the record. Accordingly, we DISMISS the appeal as it pertains to § 362(d)(1), and we AFFIRM it as it pertains to § 362(d)(4). FACTS3 In 1988, Debtor’s mother, Zula Tucker, purchased real property located in Palos Verdes Estates, California (the “Property”). She borrowed Bankruptcy Code, 11 U.S.C. §§ 101–1532. 2 Debtor informed us at oral argument that he remains in the property, and he requested a continuance. That request is DENIED. 3 We exercise our discretion to take judicial notice of documents electronically filed in Debtor’s bankruptcy case and the prior cases involving the Property. See Atwood v. Chase Manhattan Mortg. Co. (In re Atwood), 293 B.R. 227, 233 n.9 (9th Cir. BAP 2003). 2 $375,000, secured by a deed of trust on the Property. Through assignments and mergers, PNC became beneficiary of the deed of trust and holder of the note as of 2009. Ms. Tucker transferred the Property to her living trust, and upon her death in 2012, Debtor became successor trustee and sole beneficiary of the trust. PNC asserts that the loan has been in default since 2014, and it fully matured in 2018. Between 2014 and 2023, Debtor filed six unsuccessful lawsuits in state court seeking to prevent foreclosure. Between May 2023 and July 2024, Debtor and his wife, Ida Hanson, filed four bankruptcy petitions involving the Property. PNC obtained stay relief in Debtor’s first chapter 13 case, which was dismissed with a 180-day bar to refiling. Ms. Hanson then filed two consecutive chapter 13 petitions. She voluntarily dismissed the first case in January 2024. In her second case, Ms. Hanson filed a motion to continue the stay pursuant to § 362(c)(3), and PNC filed a motion for stay relief under § 362(d)(1) and (d)(4). The bankruptcy court granted stay relief, but declined to enter in rem relief under § 362(d)(4) to permit Ms. Hanson and Debtor to close on a reverse mortgage which they stated had been approved. The court dismissed the case in April 2024. Debtor and Ms. Hanson did not obtain the reverse mortgage, and Debtor filed the instant case on the eve of foreclosure, in July 2024. PNC filed a motion for stay relief under § 362(d)(1) and (d)(4) based on Debtor’s failure to make payments and his bad faith efforts to delay foreclosure. It
Jakmian, C. v. City of Phila.
IN THE SUPREME COURT OF PENNSYLVANIA EASTERN DISTRICT CAROLEEN JAKMIAN, : No. 266 EAL 2024 : Petitioner : Petition for Allowance of Appeal : from the Unpublished : Memorandum Opinion and Order v. : of the Commonwealth Court at No. : 665 CD 2023 (Covey, Wojcik, : Ceisler, JJ.), entered on July 16, CITY OF PHILADELPHIA AND : 2024, affirming the Lower Court SOUTHEASTERN PENNSYLVANIA : Order of the Philadelphia County TRANSPORTATION AUTHORITY, : Court of Common Pleas at No. : 201001469 (Schulman, J.), entered Respondents : on June 12, 2023 : CONCURRING STATEMENT JUSTICE DOUGHERTY FILED: June 11, 2025 The petitioner in this case suffered injuries on a Philadelphia street after the front tire of her bicycle became stuck in a SEPTA trolley track that has been out of use since 1992. She filed a civil complaint alleging the “trolley track is an artificial condition, affixed to Commonwealth real estate, that inherently . . . constitute[s] a dangerous condition” within the meaning of the real estate exception to the Sovereign Immunity Act. Petition for Allowance of Appeal at 23, citing 42 Pa.C.S. §8522(b)(4) (explaining that “sovereign immunity shall not be raised to claims for damages caused by . . . [a] dangerous condition of Commonwealth agency real estate”). However, the trial court granted SEPTA’s motion for nonsuit before the case reached the jury. According to the court, “the existence of the real estate itself cannot be the dangerous condition; rather there must be evidence that some derivative condition of the real estate created a dangerous condition.” Trial Court Op., 8/3/23, at 7, citing Snyder v. Harmon, 562 A.2d 307 (Pa. 1989). The court further reasoned that “[u]nless a condition is so plainly dangerous that a lay person can come to that conclusion by merely observing the condition, expert testimony is needed to explain why the condition is defective.” Id. at 9; see id at 10 (noting petitioner “failed to show how a trolley rail would be an obvious danger such that expert testimony was not needed to prove that it was, in fact, dangerous”). Respectfully, I question whether these conclusions accurately reflect the law. First, our decision in Snyder does not support the trial court’s statement that “the real estate itself cannot be the dangerous condition[.]” Id. at 7. In fact, it suggests the exact opposite. In Snyder, we explained the “unambiguous language of Section 8522(b)(4) . . . indicate[s] that a dangerous condition must derive, originate from or have as its source the Commonwealth realty.” 562 A.2d at 311. We certainly did not hold that real estate — or, more accurately, an artificial condition (like a trolley track) affixed to Commonwealth agency real estate (like a highway) — cannot itself pose a dangerous condition as understood by Section 8522(b)(4).1 On the contrary, it is settled that “the Commonwealth may not raise the defense of sovereign immunity when a plaintiff alleges, for example, that . . . an object on Commonwealth realty was the result of a defect in the 1 At trial, petitioner elicited testimony that SEPTA is responsible for the trolley tracks in question, as well as the space “between the rails and 18 inches outside of the rails.” N.T. Trial, 2/6/23, at 140-41; see also N.T. Trial, 2/7/23, at 8, 10-11 (same). Thus, as I see it, the relevant “real estate” includes the portion of the highway over which SEPTA has assumed control. See id. at 148 (explaining “SEPTA’s right-of-way area shall mean the portions of the right-of-way in which the railway tracks owned and operat[ed] by SEPTA are located including the rails and ties, and the space between the rails, and for 18 inches on each side of the rails”). Surely, the tracks themselves constitute “Commonwealth- owned real property,” 42 Pa.C.S. §8522(b)(4), and “[i]t is a well settled tenet of property law that whatever is annexed to the land becomes land.” Cagey v. Commonwealth, 179 A.3d 458, 464 (Pa. 2018). But this does not change the fact that the statute also deems as real estate “highways under the jurisdiction of a Commonwealth agency, except conditions described in paragraph (5) [(relating to potholes, sinkholes or other similar conditions create
Jakmian, C. v. City of Phila.
IN THE SUPREME COURT OF PENNSYLVANIA EASTERN DISTRICT CAROLEEN JAKMIAN, : No. 266 EAL 2024 : Petitioner : : Petition for Allowance of Appeal : from the Order of the v. : Commonwealth Court : : CITY OF PHILADELPHIA AND : SOUTHEASTERN PENNSYLVANIA : TRANSPORTATION AUTHORITY, : : Respondents : ORDER PER CURIAM AND NOW, this 11th day of June, 2025, the Petition for Allowance of Appeal is DENIED. Justice Dougherty files a concurring statement.
Jacklin Romeo, Susan S. Rine, and Debra Snyder Miller v. Antero Resources Corporation (Justice Walker, dissenting)
No. 23-589, Jacklin Romeo, Susan S. Rine, and Debra Snyder Miller v. Antero Resources Corporation FILED June 11, 2025 Walker, Justice, dissenting: released at 3:00 p.m. C. CASEY FORBES, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA This certified question proceeding presents a new wrinkle to a perennial problem: how to calculate the lessor’s royalty payment under the terms of an oil and gas mineral lease. In the underlying case before the district court, the plaintiffs allege that Antero Resources Corporation breached their contracts by deducting post-production costs from their royalty payments; this is one of the most contentious legal issues in the oil and gas industry. “On one side of the spectrum is the established and majority ‘at the well’ approach, while on the other is the minority ‘first marketable product’ approach.”1 Today, the majority of this Court selects neither of those options and expands Wellman2/Tawney’s3 “point of sale” requirement to (1) oil and gas processed and shipped to downstream 1 William T. Silvia, Slouching Toward Babel: Oklahoma’s First Marketable Product Problem, 49 Tulsa L. Rev. 583 (Winter 2013). 2 See Syl. Pt. 4, Wellman v. Energy Res., Inc., 210 W. Va. 200, 557 S.E.2d 254 (2001) (“If an oil and gas lease provides for a royalty based on proceeds received by the lessee, unless the lease provides otherwise, the lessee must bear all costs incurred in exploring for, producing, marketing, and transporting the product to the point of sale.”). 3 See Syl. Pt. 10, Estate of Tawney v. Columbia Natural Res., 219 W. Va. 266, 633 S.E.2d 22 (2006) (“Language in an oil and gas lease that is intended to allocate between the lessor and lessee the costs of marketing the product and transporting it to the point of sale must expressly provide that the lessor shall bear some part of the costs incurred between the wellhead and the point of sale, identify with particularity the specific deductions the lessee intends to take from the lessor’s royalty (usually 1/8), and indicate the method of calculating the amount to be deducted from the royalty for such post- production costs.”). 1 locations as far away as the Gulf Coast of Louisiana, and (2) enhanced byproducts such as natural gas liquids. Because the majority’s holding expands the breadth of an already unsound rule, I respectfully dissent. Oil and gas leases are contracts.4 And under West Virginia law, contracts are to be interpreted to carry out the intent of the parties, as that intent is evidenced by the contract’s language. I would have taken this opportunity to rewrite the certified questions and overrule our holdings in Wellman/Tawney. Tawney was a mistaken decision, an outlier on the day it was decided and one that’s become lonelier with time. Its predecessor Wellman, also wrongly decided, set the stage for what has become two decades of massive judicial revision of oil and gas leases across our State. In Wellman, this Court addressed an action brought by the lessors seeking damages for failure to pay proper royalties.5 Similar to the leases at issue here, the leases in Wellman provided for natural gas royalties of “‘one-eighth (1/8) of the market value of such gas at the mouth of the well[.]’”6 When resolving the question of whether or what expenses were properly deductible, the Court acknowledged the split of authority regarding deduction of post-production costs and the rationale of those states holding that post- 4 Ascent Res. - Marcellus, LLC v. Huffman, 244 W. Va. 119, 125, 851 S.E.2d 782, 788 (2020); see also Phillip T. Glyptis, Viability of Arbitration Clauses in West Virginia Oil and Gas Leases: It Is All About the Lease!!!, 115 W. Va. L. Rev. 1005, 1007 (2013) (“[A] lease is by definition a contract. All rights and protections are controlled by the principles of contract law and depend on the proper construction.”). 5 Wellman, 210 W. Va. at 204, 557 S.E.2d at 258. 6 Id. 2 production costs are not properly deductible from the lessor’s royalty.7 The Court noted that under the implied covenant to market, the lessee embraces the responsibility to get the oil or gas in marketable condition and actually transport it to market.8 Noting simply that like other marketable product rule states, “West Virginia holds that a lessee impliedly covenants th
Jacklin Romeo, Susan S. Rine, and Debra Snyder Miller v. Antero Resources Corporation
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA January 2025 Term FILED _____________________ June 11, 2025 released at 3:00 p.m. C. CASEY FORBES, CLERK No. 23-589 SUPREME COURT OF APPEALS OF WEST VIRGINIA _____________________ JACKLIN ROMEO, SUSAN S. RINE, and DEBRA SNYDER MILLER, Plaintiffs Below, Petitioners, v. ANTERO RESOURCES CORPORATION, Defendant Below, Respondent. ___________________________________________________________ Certified Questions from the United States District Court for the Northern District of West Virginia The Honorable Thomas S. Kleeh, Chief Judge Civil Action No. 1:17-CV-88-TSK-MJA CERTIFIED QUESTIONS ANSWERED _________________________________________________________ Rehearing Granted: December 31, 2024 Submitted Upon Rehearing: April 22, 2025 Filed: June 11, 2025 George A. Barton, Esq. W. Henry Lawrence, Esq. Barton and Burrows, LLC Amy M. Smith, Esq. Mission, Kansas Lauren K. Turner, Esq. Steptoe & Johnson PLLC L. Lee Javins II Esq. Bridgeport, West Virginia Taylor M. Norman, Esq. Bailey, Javins & Carter, L.C. Elbert Lin, Esq. Charleston, West Virginia Hunton Andrews Kurth LLP Richmond, Virginia Howard M. Persinger, III Daniel T. Donovan, Esq. Persinger & Persinger, L.C. Kirkland & Ellis LLP Charleston, West Virginia Washington, D.C. Counsel for Petitioners Counsel for Respondent CHIEF JUSTICE WOOTON delivered the Opinion of the Court. JUSTICE ARMSTEAD, deeming himself disqualified, did not participate in the decision of this case. JUDGE HARDY, sitting by designation. JUSTICE WALKER dissents and reserves the right to file a separate opinion. JUSTICE BUNN dissents and reserves the right to file a separate opinion. SYLLABUS BY THE COURT 1. “‘“A de novo standard is applied by this court in addressing the legal issues presented by a [sic] certified questions from a federal district or appellate court.” Syl. Pt. 1, Light v. Allstate Ins. Co., 203 W.Va. 27, 506 S.E.2d 64 (1998).’ Syllabus Point 2, Aikens v. Debow, 208 W.Va. 486, 541 S.E.2d 576 (2000).” Syl. Pt. 1, Harper v. Jackson Hewitt, Inc., 227 W. Va. 142, 706 S.E.2d 63 (2010). 2. “If an oil and gas lease provides for a royalty based on proceeds received by the lessee, unless the lease provides otherwise, the lessee must bear all costs incurred in exploring for, producing, marketing, and transporting the product to the point of sale.” Syl. Pt. 4, Wellman v. Energy Res., Inc., 210 W. Va. 200, 557 S.E.2d 254 (2001). 3. Except as may be specifically provided by the parties’ agreement, where an oil and gas lease contains an express or implied duty to market, the requirements of Wellman v. Energy Resources, Inc., 210 W. Va. 200, 557 S.E.2d 254 (2001), and Estate of Tawney v. Columbia Natural Resources, L.L.C., 219 W. Va. 266, 633 S.E.2d 22 (2006), extend to the point of sale, not just to the point of marketability or to the first available market. 4. Except as may be specifically provided by the parties’ agreement, royalties are payable to the mineral owner/lessor not only from the producer/lessee’s sale of wet gas i and residue gas but also from the lessee’s sale of any byproducts of the wet gas such as natural gas liquids. 5. “‘The general rule as to oil and gas leases is that such contracts will generally be liberally construed in favor of the lessor, and strictly as against the lessee.’ Syllabus Point 1, Martin v. Consolidated Coal & Oil Corp., 101 W.Va. 721, 133 S.E. 626 (1926).” Syl. Pt. 7, Est. of Tawney, 219 W. Va. 266, 633 S.E.2d 22 (2006). 6. “‘The question as to whether a contract is ambiguous is a questio
Camden-Clark Memorial Hospital, Inc. v. Marietta Area Healthcare, Inc. (Justice Bunn, concurring in part, and dissenting in part)
No. 23-569, Camden-Clark Memorial Hospital Corporation; Camden-Clark Health Services Inc.; West Virginia United Health System, Inc. d/b/a West Virginia University Health System; and West Virginia University Hospitals, Inc. v. Marietta Area Healthcare, Inc.; Marietta Memorial Hospital; and Marietta HealthCare Physicians,FILED Inc. June 11, 2025 released at 3:00 p.m. C. CASEY FORBES, CLERK BUNN, Justice, concurring in part and dissenting in part: SUPREME COURT OF APPEALS OF WEST VIRGINIA I concur with the majority’s answers to the first and second questions certified to this Court from the United States District Court for the Northern District of West Virginia, which recognize a cause of action for negligent supervision and define its elements. Yet, I dissent to the remainder of the majority’s opinion, which unnecessarily answers the district court’s third certified question and ultimately holds that intentional or reckless torts can form the basis for a negligent supervision claim. In answering the second certified question, the majority sets forth straightforward, easily applied elements of negligent supervision, making the majority’s answer to the third certified question unnecessary and superfluous. Likewise, the majority’s addition of a new syllabus point relating to the third certified question is unwarranted. Furthermore, while I concur in the majority’s determination of negligent supervision’s elements, I write separately to caution that negligent supervision is, in essence, a narrow subset of ordinary negligence, requiring the case-by-case factual analysis applicable to all negligence claims. I further emphasize that the factual circumstances in which an employer may be held liable to a plaintiff for negligent supervision, when the employee’s intentional tort caused the plaintiff harm, are likely quite rare. 1 A brief factual recitation and the underlying proceedings is helpful to provide context to my analysis. The respondents, the plaintiffs in the underlying action in federal court, alleged in relevant part1 that the petitioners, defendants in the underlying action, negligently failed to supervise their employees “in the pursuit and assistance in the pursuit” of a separate qui tam action against the respondents. In that negligent supervision count, respondents also asserted that the “initiation and pursuit of the qui tam action and the federal investigation consisted of tortious conduct.” The district court deferred ruling on the petitioners’ motion to dismiss the negligent supervision count and instead certified questions asking this Court whether negligent supervision is a cause of action in West Virginia, to set forth the elements of negligent supervision, and to determine whether a negligent supervision claim survives if the employee engages in an intentional or reckless tort. A. The Majority Erred By Answering Question Three The district court’s third certified question asks “[c]an intentional or reckless torts committed by an employee form the basis for a claim for negligent supervision against the employer?” I would have declined to answer this question, as the answer is unnecessary for the district court’s analysis in the underlying case given the Court’s answer to the second certified question. This Court recently explained, in City of Huntington v. AmerisourceBergen Drug Corp., that a “certified question’s purpose is to ‘determine [the] 1 These allegations are taken from the Second Amended Complaint, the operative complaint in the case pending before the district court. 2 legal correctness’ of certain issues that are ‘critical’ to ‘determine the final outcome of a case.’” ___ W. Va. ___, ___, ___ S.E.2d. ___, ___, 2025 WL 1367333, at *6 (W. Va. May 12, 2025) (quoting Bass v. Coltelli, 192 W. Va. 516, 520, 453 S.E.2d 350, 354 (1994), superseded by statute, W. Va. Code § 58-5-2, as recognized by Smith v. Consol. Pub. Ret. Bd., 222 W. Va. 345, 664 S.E.2d 686 (2008)) (discussing certification of questions by a state court). This Court further held that when answering a certified question from a federal court, “the legal issue must substantially control the case.” Syl. pt. 2, in part, id. The majority’s answer to district court’s third question disregards those restrictions. The majority, in answering the second certified question, provides the district court enou
V.O.S. Selections, Inc. v. Trump
NOTE: This order is nonprecedential. United States Court of Appeals for the Federal Circuit ______________________ V.O.S. SELECTIONS, INC., PLASTIC SERVICES AND PRODUCTS, LLC, dba Genova Pipe, MICROKITS, LLC, FISHUSA INC., TERRY PRECISION CYCLING LLC, Plaintiffs-Appellees v. DONALD J. TRUMP, in his official capacity as Pres- ident of the United States, EXECUTIVE OFFICE OF THE PRESIDENT, UNITED STATES, PETE R. FLORES, Acting Commissioner for United States Customs and Border Protection, in his official ca- pacity as Acting Commissioner of the United States Customs and Border Protection, JAMIESON GREER, in his official capacity as United States Trade Representative, OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE, HOWARD LUTNICK, in his official capacity as Secretary of Commerce, UNITED STATES CUSTOMS AND BORDER PROTECTION, Defendants-Appellants ______________________ 2025-1812 ______________________ Appeal from the United States Court of International Trade in No. 1:25-cv-00066-GSK-TMR-JAR, Judge Gary S. 2 V.O.S. SELECTIONS, INC. v. TRUMP Katzmann, Judge Timothy M. Reif, and Senior Judge Jane A. Restani. ------------------------------------------------- STATE OF OREGON, STATE OF ARIZONA, STATE OF COLORADO, STATE OF CONNECTICUT, STATE OF DELAWARE, STATE OF ILLINOIS, STATE OF MAINE, STATE OF MINNESOTA, STATE OF NEVADA, STATE OF NEW MEXICO, STATE OF NEW YORK, STATE OF VERMONT, Plaintiffs-Appellees v. PRESIDENT DONALD J. TRUMP, UNITED STATES DEPARTMENT OF HOMELAND SECURITY, KRISTI NOEM, Secretary of Homeland Security, in her official capacity as Secretary of the Department of Homeland Security, UNITED STATES CUSTOMS AND BORDER PROTECTION, PETE R. FLORES, Acting Commissioner for United States Customs and Border Protection, in his official capacity as Acting Commissioner for U.S. Customs and Border Protection, UNITED STATES, Defendants-Appellants ______________________ 2025-1813 ______________________ Appeal from the United States Court of International Trade in No. 1:25-cv-00077-GSK-TMR-JAR, Judge Gary S. Katzmann, Judge Timothy M. Reif, and Senior Judge Jane A. Restani. ______________________ ON MOTION ______________________ V.O.S. SELECTIONS, INC. v. TRUMP 3 Before MOORE, Chief Judge, LOURIE, DYK, PROST, REYNA, TARANTO, CHEN, HUGHES, STOLL, CUNNINGHAM, and STARK, Circuit Judges. 1 PER CURIAM. ORDER The United States’s motions for a stay of the United States Court of International Trade’s rulings enjoining cer- tain Executive Orders imposing tariffs, the Plaintiffs-Ap- pellees’ oppositions, and the United States’s reply were presented to all circuit judges of this court in regular active service who are not recused or disqualified. Both sides have made substantial arguments on the merits. Having considered the traditional stay factors, see Fed. R. App. P. 8; Nken v. Holder, 556 U.S. 418, 426 (2009), the court con- cludes a stay is warranted under the circumstances. See also Trump v. Wilcox, 605 U.S. ___, 145 S. Ct. 1415, 1415 (2025) (per curiam) (“The purpose of . . . interim equitable relief is not to conclusively determine the rights of the par- ties, but to balance the equities as the litigation moves for- ward.” (quoting Trump v. Int’l Refugee Assistance Project, 582 U.S. 571, 580 (2017)). The court also concludes that these cases present issues of exceptional importance war- ranting expedited en banc consideration of the merits in the first instance. Accordingly, IT IS ORDERED THAT: (1) The motions for a stay pending appeal are granted. (2) All motions for leave to file briefs amicus curiae re- garding the stay motions are granted. (3) These consolidated cases will be heard en banc un- der 28 U.S.C. § 46 and Federal Rule of Appellate Procedure 1 Circuit Judge Newman did not participate. 4 V.O.S. SELECTIONS, INC. v. TRUMP 40(g). The court en banc shall consist of all circuit judges in regular active service who are not recused or disqualified in accordance with the provisions of 28 U.S.C. § 46(c). (4) Within two business days from the issuance of this order, the parties are directed to jointly file a proposed ex- pedited briefing schedule. The proposed briefing schedule should allow for this court to hold oral argument on July 31, 2025 at 10:00 A.M. in Courtroom 201. If the parties cannot agree upon a schedule, the joint submission should include the parties’ alternative proposals.
People v. Jackson
2025 NY Slip Op 50949(U)
People v. Hernandez
2025 NY Slip Op 25135
People v. Jackson
2025 NY Slip Op 50949(U)
People v. Hernandez
2025 NY Slip Op 25135
Fabian Grey v. Angelica Alfonso-Royals
USCA4 Appeal: 23-1910 Doc: 54 Filed: 06/10/2025 Pg: 1 of 17 PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 23-1910 FABIAN GREY, Plaintiff – Appellant, v. ANGELICA ALFONSO-ROYALS, Acting Director, United States Citizenship and Immigration Services, Defendant – Appellee. Appeal from the United States District Court for the District of South Carolina, at Beaufort. David C. Norton, District Judge. (9:18-cv-01764-DCN) Argued: September 27, 2024 Decided: June 10, 2025 Before NIEMEYER, THACKER, and RUSHING, Circuit Judges. Affirmed by published opinion. Judge Rushing wrote the opinion, in which Judge Niemeyer and Judge Thacker joined. ARGUED: Bradley Bruce Banias, BANIAS LAW LLC, Charleston, South Carolina, for Appellant. Victor Manuel Mercado-Santana, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. ON BRIEF: Brian M. Boynton, Principal Deputy Assistant Attorney General, William C. Peachey, Director, Samuel P. Go, Assistant Director, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. USCA4 Appeal: 23-1910 Doc: 54 Filed: 06/10/2025 Pg: 2 of 17 RUSHING, Circuit Judge: Appellant Fabian Grey, a citizen of Jamaica and lawful permanent resident in the United States, applied for naturalization. After substantial delay in a decision on his application, Grey filed this lawsuit asking the district court to declare him eligible for naturalization and order the United States Citizenship and Immigration Services (USCIS) to naturalize him. Grey also sought documents from USCIS under the Freedom of Information Act (FOIA) and amended his lawsuit to request court action compelling USCIS to produce those documents. The district court ultimately granted summary judgment to USCIS on both claims. USCIS produced substantial documentation responding to Grey’s FOIA request, and the court determined the agency was entitled to withhold or redact certain documents under the statute’s law enforcement exemption. As for naturalization, the court concluded Grey was ineligible for citizenship because he lied under oath during his deposition in this case. Grey appealed each ruling, and we affirm. I. Grey first entered the United States in 2004 on a work visa. Two years later, he married a United States citizen, and eventually he became a lawful permanent resident. On February 17, 2016, Grey applied for naturalization. USCIS conducted his naturalization interview in September 2017 and a home visit in June 2018. During the home visit, Grey became concerned that USCIS suspected him of marriage fraud. Having received no decision from the agency on his application, Grey filed this lawsuit against the director of USCIS on June 27, 2018. Grey asked the district court to declare him eligible for naturalization and order USCIS to naturalize him pursuant to 8 2 USCA4 Appeal: 23-1910 Doc: 54 Filed: 06/10/2025 Pg: 3 of 17 U.S.C. § 1447(b). Around the same time, Grey also submitted a FOIA request to USCIS, seeking information about his immigration file and documents related to the agency’s methods and practices for investigating marriage fraud. When USCIS did not respond to his inquiry for two months, Grey amended his complaint to add a claim seeking an order compelling USCIS to respond to his pending FOIA request pursuant to 5 U.S.C. § 552(a)(4)(B). A. The parties began discovery, and in August 2020 USCIS deposed Grey. During the deposition, USCIS asked about a criminal charge from 2016 for misprision of a felony. Grey’s description of the events underlying that charge caused USCIS to dig deeper into the matter. During his deposition, Grey recounted that on February 18, 2016, he was sitting in his car in the parking lot that he routinely used before ferrying by boat to work. Grey testified that when he exited his car, he saw Darnell Williams, one of his coworkers, lying on the ground. Because Williams was a frequent prankster, Grey at first thought he was j
United States v. Ibarra
Case: 24-50910 Document: 54-1 Page: 1 Date Filed: 06/10/2025 United States Court of Appeals for the Fifth Circuit United States Court of Appeals ____________ Fifth Circuit FILED No. 24-50910 June 10, 2025 Summary Calendar Lyle W. Cayce ____________ Clerk United States of America, Plaintiff—Appellee, versus Cristobal Ibarra, Defendant—Appellant. ______________________________ Appeal from the United States District Court for the Western District of Texas USDC No. 5:24-CR-27-1 ______________________________ Before Wiener, Ho, and Ramirez, Circuit Judges. Per Curiam: * Cristobal Ibarra appeals his guilty plea conviction for possessing a firearm as a felon, in violation of 18 U.S.C. § 922(g)(1). At the time he committed the § 922(g)(1) offense of which he was convicted, Ibarra had multiple prior felony convictions, including a 2014 Arizona conviction for aggravated assault and a 2018 conviction for misconduct involving weapons. _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 24-50910 Document: 54-1 Page: 2 Date Filed: 06/10/2025 No. 24-50910 Ibarra argues that § 922(g)(1) exceeds Congress’s authority under the Commerce Clause and violates the Second Amendment, both facially and as applied to him, in light of the test set forth in New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1 (2022). The Government has filed an opposed motion for summary affirmance or, in the alternative, an extension of time to file a merits brief. Summary affirmance is appropriate if “the position of one of the parties is clearly right as a matter of law so that there can be no substantial question as to the outcome of the case.” United States v. Holy Land Found. For Relief & Dev., 445 F. 3d 771, 781 (5th Cir. 2006) (quoting Groendyke Transp., Inc. v. Davis, 406 F.2d 1158, 1162 (5th Cir. 1969)). The Government is correct that Ibarra’s constitutional challenges are foreclosed. See United States v. Diaz, 116 F.4th 458, 471-72 (5th Cir. 2024), petition for cert. filed (U.S. Feb. 18, 2025) (No. 24-6625); United States v. Bullock, 123 F.4th 183, 185 (5th Cir. 2024); United States v. Traxler, 764 F.3d 486, 489 (5th Cir. 2014); United States v. Alcantar, 733 F.3d 143, 145-46 (5th Cir. 2013); see also United States v. Schnur, 132 F.4th 863, 867-70 (5th Cir. 2025). Because Diaz, Bullock, Traxler, and Alcantar are clearly dispositive, we affirm the district court’s judgment without further briefing. See United States v. Bailey, 924 F.3d 1289, 1290 (5th Cir. 2019). The motion for summary affirmance is GRANTED, the alternative motion for an extension of time is DENIED as moot, and the judgment of the district court is AFFIRMED. 2
United States v. Gonzales
Case: 24-10772 Document: 58-1 Page: 1 Date Filed: 06/10/2025 United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit No. 24-10772 FILED June 10, 2025 Summary Calendar ____________ Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee, versus Willie Gonzales, Defendant—Appellant. ______________________________ Appeal from the United States District Court for the Northern District of Texas USDC No. 2:23-CR-93-1 ______________________________ Before Wiener, Ho, and Ramirez, Circuit Judges. Per Curiam: * The Federal Public Defender appointed to represent Defendant- Appellant Willie Gonzales has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and United States v. Flores, 632 F.3d 229 (5th Cir. 2011). Gonzales has not filed a response. We have reviewed counsel’s brief and the relevant portions of the _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. Case: 24-10772 Document: 58-1 Page: 2 Date Filed: 06/10/2025 No. 24-10772 record reflected therein. We concur with counsel’s assessment that the appeal presents no nonfrivolous issue for appellate review. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the appeal is DISMISSED. See 5th Cir. R. 42.2. 2
Torres v. Goldstein
Case: 24-11021 Document: 47-1 Page: 1 Date Filed: 06/10/2025 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit ____________ FILED June 10, 2025 No. 24-11021 Lyle W. Cayce ____________ Clerk Ruth Torres, Plaintiff—Appellant, versus Bonnie Lee Goldstein, In Official Capacity 44th District Court Judge Dallas; Raymond G. Wheless, In Official Capacity, Presiding Judge First Administrative Judicial Region; Robert D. Burns, In Official Capacity, Chief Justice, Fifth Court of Appeals-Dallas; Amanda L. Reichek, In Official Capacity, Chief Justice, Fifth Court of Appeals-Dallas; Ken Molberg, In Official Capacity, Chief Justice, Fifth Court of Appeals- Dallas; Dennise Garcia, In Official Capacity, Chief Justice, Fifth Court of Appeals-Dallas; Robbie Partida-Kipness, In Official Capacity, Justice Place 2 Fifth Court of Appeals-Dallas; Honorable Dale Tillery, In Official Capacity, 134th District Court Judge Dallas, Defendants—Appellees. ______________________________ Appeal from the United States District Court for the Northern District of Texas USDC No. 3:24-CV-1843 ______________________________ Case: 24-11021 Document: 47-1 Page: 2 Date Filed: 06/10/2025 No. 24-11021 Before Smith, Graves, and Engelhardt, Circuit Judges. Per Curiam: * Ruth Torres, proceeding pro se, filed a civil rights complaint against several members of the Texas judiciary seeking injunctive, declaratory, and monetary relief. Torres alleged that the defendants violated her constitu- tional rights by issuing improper rulings and orders in a lawsuit initiated against her in retaliation for being a whistleblower, as well as in related legal proceedings. The district court dismissed the complaint as frivolous and for failure to state a claim upon which relief may be granted. See 28 U.S.C. § 915(e)(2)(B). Torres moves to proceed in forma pauperis (“IFP”) on appeal, which constitutes a challenge to the district court’s certification that any appeal would not be taken in good faith because Torres will not present a nonfrivolous appellate issue. See Baugh v. Taylor, 117 F.3d 197, 202 (5th Cir. 1997). As an initial matter, Torres does not present a nonfrivolous issue for appeal regarding her contention that the district court failed to conduct de novo review as demonstrated by the court’s failure separately to provide find- ings and conclusions for overruling her objections to the magistrate judge’s report and recommendation. Rather, the record reflects that in accepting the report and recommendation, the district court conducted the requisite de novo review. See Fed. R. Civ. P. 72(b)(3). In addition, the district court’s decision to consider sua sponte the applicability of the judicial immunity doctrine does not present a non- frivolous issue for appeal. See Boyd v Biggers, 31 F.3d 279, 284 (5th Cir. 1994). Further, Torres’s conclusory assertions, without more, that judicial immun- ity does not apply because the defendants’ actions were without jurisdiction _____________________ * This opinion is not designated for publication. See 5th Cir. R. 47.5. 2 Case: 24-11021 Document: 47-1 Page: 3 Date Filed: 06/10/2025 No. 24-11021 and they were disqualified “due to ultra-vires acts/or crime-fraud excep- tion,” does not arguably state a constitutional violation. See Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990). Rather, her allegations all stem from orders the defendants issued in litigation involving Torres. See Davis v. Tar- rant Cnty., 565 F.3d 214, 221-22 (5th Cir. 2009). Further, Torres does not challenge the district court’s conclusion that she could not bring a private criminal action against the defendants. Nor does she challenge the decision denying her leave to amend her complaint. Thus, these claims are deemed abandoned. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993); Brinkmann v. Dallas Cnty. Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir. 1987). Torres also maintains that the district court abused its discretion in denying her motion for appointment of counsel. However, Torres’s numer- ous filings in the district court and this court indicate that she has the
Morrow v. Jones
Case: 23-40546 Document: 107-1 Page: 1 Date Filed: 06/10/2025 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit ____________ FILED June 10, 2025 No. 23-40546 ____________ Lyle W. Cayce Clerk James Morrow, Plaintiff—Appellant, versus O’Neal Jones, Jr., in his Official Capacity as the current Mayor of the City of Tenaha, Defendant—Appellee. ______________________________ Appeal from the United States District Court for the Eastern District of Texas USDC No. 2:08-CV-288 ______________________________ Before Haynes, Willett, and Oldham*, Circuit Judges. Don R. Willett, Circuit Judge: This is an appeal of an attorney-fee award in a class action. Because the class did not receive notice of the motion for attorney fees as required by Federal Rule of Civil Procedure 23(h), we VACATE and REMAND. _____________________ * Judge Oldham concurs in the judgment only. Case: 23-40546 Document: 107-1 Page: 2 Date Filed: 06/10/2025 No. 23-40546 I This case originated in 2008 as a class action against various City of Tenaha and Shelby County officials under 42 U.S.C. § 1983 for violations of the Fourth and Fourteenth Amendments. Plaintiffs alleged that the City and County Defendants had “developed an illegal ‘stop and seize’ practice of targeting, stopping, detaining, searching, and often seizing property from individuals who are or appear to be, members of a racial or ethnic minority or their passengers.” The parties negotiated a settlement agreement, which primarily consisted of a consent decree. The consent decree required Defendants to follow procedures for a period of years to ensure that Defendants’ future policing practices did not result in the same or similar illegal traffic stops alleged in the lawsuit. The consent decree also imposed a court-appointed monitor who oversaw compliance and produced quarterly compliance reports. The parties then reviewed these reports before they were submitted to the district court. Under the consent decree, the parties also agreed that Defendants would pay fees and expenses directly to class counsel. The original consent decree was entered in 2013, and it was amended and extended in 2019. The amended consent decree expired in July 2020. Plaintiffs filed a motion to extend the consent decree for a second additional term, but in September 2020, the district court denied the motion and found “that the purposes of the Consent Decree ha[d] been fulfilled.” The next month, the County Defendants settled their remaining obligations to Plaintiffs, leaving only the City Defendants remaining in this appeal. While the case proceeded in district court, class counsel filed four motions for attorney fees. The district court granted the first three of these motions, awarding a total of $324,773.90 in attorney fees and expenses for the period between September 2013 and March 2020. 2 Case: 23-40546 Document: 107-1 Page: 3 Date Filed: 06/10/2025 No. 23-40546 In their fourth motion for attorney fees, Plaintiffs requested $88,553.33 for unpaid fees between April 1, 2020 and December 31, 2020. This work included hours spent by attorneys Timothy Garrigan and David Craig pursuing and recovering attorney fees, monitoring Defendants’ compliance with the consent decrees, negotiating a settlement with the County Defendants, and other matters. The district court initially denied the fourth motion for fees as untimely, but, on appeal, we vacated that decision and remanded the case.1 On reconsideration, the district court awarded $16,020 in attorney fees. In calculating the lodestar,2 it reduced Garrigan’s and Craig’s hourly rates. It then found that the only hours reasonably expended in connection with the City Defendants were 50 percent of the hours related to recovering attorney fees and 80 percent of the hours related to monitoring Defendants’ compliance. Finally, the district court held that this was not an “exceptional” case that warranted a
American Multi-Cinema v. National CineMedia
Case: 24-20386 Document: 102-1 Page: 1 Date Filed: 06/10/2025 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit ____________ FILED June 10, 2025 No. 24-20386 Lyle W. Cayce ____________ Clerk In the Matter of National CineMedia, L.L.C. Debtor, Cinemark Media Incorporated; Cinemark USA, Incorporated, Appellants, versus National CineMedia, L.L.C., Appellee, __________________________________________________ In the Matter of National CineMedia, L.L.C. Debtor, Cinemark USA, Incorporated, Appellant, versus National CineMedia, L.L.C., Case: 24-20386 Document: 102-1 Page: 2 Date Filed: 06/10/2025 Appellee. ______________________________ Appeal from the United States District Court for the Southern District of Texas USDC Nos. 4:23-CV-2414, 4:23-CV-2485 ______________________________ Before Jones, Southwick, and Oldham, Circuit Judges. Per Curiam: * This court has carefully considered this appeal in light of the briefs, oral argument, and pertinent portions of the record. Having done so, we substantially adopt the analysis of the district court’s opinion, which affirmed the bankruptcy court’s rulings. 1 Accordingly, the Most Favored Nations (“MFN”) clause in Cinemark’s Exhibitor Services Agreements (“ESA”) with the debtor National CineMedia LLC (“NCM”) was not triggered by Regal’s entry into a Network Affiliate Transaction Agreement (“NATA”) with NCM. The MFN clause in Cinemark’s ESA provided it the right to match the terms of an “agreement, amendment or extension” between Regal and NCM “which amends any term” of Regal’s ESA. Regal, while itself a debtor in bankruptcy, terminated its ESA with NCM through a Termination Settlement Agreement (“TSA”). Regal then entered into the NATA with NCM. The TSA did not amend any term of Regal’s ESA because it _____________________ * Pursuant to 5th Circuit Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Circuit Rule 47.5.4. 1 This court reviews the NCM bankruptcy court’s “Settlement Order” under Bankruptcy Rule 9019 for abuse of discretion. In re Moore, 608 F.3d 253, 257 (5th Cir. 2010). No abuse occurs unless the court made an error of law or clear error of fact. In re Yorkshire, LLC, 540 F.3d 328, 331 (5th Cir. 2008). Case: 24-20386 Document: 102-1 Page: 3 Date Filed: 06/10/2025 terminated the ESA, whereas “amend” contemplates modification of an ESA’s term that nevertheless preserves the agreement’s existence. The NATA did not amend any term of Regal’s ESA because the TSA had terminated Regal’s ESA, and the ESA must exist for the NATA to amend any of its terms. The MFN clause in Cinemark’s ESA was not triggered. 2 The judgments of the bankruptcy and district courts are AFFIRMED. _____________________ 2 NCM and AMC, the other party to the appeal, agreed to dismiss the appeal as to AMC by a joint motion for dismissal.
J.G.G. v. Donald J. Trump
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT ____________ No. 25-5217 September Term, 2024 1:25-cv-00766-JEB Filed On: June 10, 2025 J.G.G., et al., Appellees v. Donald J. Trump, in his official capacity as President of the United States, et al., Appellants BEFORE: Katsas, Rao, and Walker, Circuit Judges ORDER Upon consideration of the emergency motion for a stay pending appeal and an administrative stay, it is ORDERED that those portions of the district court’s order entered on June 4, 2025, granting in part appellees’ motion for a preliminary injunction, granting in part their motion for class certification, and ordering appellants to file a notice by June 11, 2025, be administratively stayed pending further order of the court. The purpose of this administrative stay is to give the court sufficient opportunity to consider the emergency motion for a stay pending appeal and should not be construed in any way as a ruling on the merits of that motion. See D.C. Circuit Handbook of Practice and Internal Procedures 33 (2024). It is FURTHER ORDERED that appellees file a response to the emergency motion by 5:00 p.m. on Monday, June 16, 2025. Any reply is due by 5:00 p.m. on Wednesday, June 18, 2025. Per Curiam FOR THE COURT: Clifton B. Cislak, Clerk BY: /s/ Lynda M. Flippin Deputy Clerk
William Patrick Guess v. Priam Sharma
If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports. STATE OF MICHIGAN COURT OF APPEALS WILLIAM PATRICK GUESS, UNPUBLISHED June 10, 2025 Plaintiff-Appellant, 11:59 AM V No. 368978 Oakland Circuit Court PRIAM SHARMA, SAINT MARTINUS LC No. 2023-202288-CK UNIVERSITY, and ST. MARTINUS ADMINISTRATIVE SERVICES, LLC, Defendants-Appellees. Before: MALDONADO, P.J., and M. J. KELLY and RIORDAN, JJ. PER CURIAM. Plaintiff, William Guess, appeals as of right the trial court’s opinion and order granting summary disposition in favor of defendants, Priam Sharma, Saint Martinus University (SMU), and St. Martinus Administrative Services, LLC, under MCR 2.116(C)(7) and (C)(10). For the reasons stated in this opinion, we affirm. I. BASIC FACTS Guess is a medical student who alleges that he suffers from attention-deficit/hyperactivity disorder (ADHD). In 2013, he enrolled in SMU’s medical school, which is located in Curacao, an island country located in the southern Caribbean Sea. From July 2014 through August 2016, Guess attended classes in Curacao. He then returned to Michigan, where he continued his medical education through SMU by using his professors’ class slides and taking examinations at a hospital associated with SMU. SMU was aware of Guess’s diagnosis of ADHD and gave him extra time to complete his school-administered examinations as an accommodation. Despite the accommodation, Guess -1- struggled academically, repeatedly failing and retaking multiple classes.1 Guess took his last course at SMU in February 2018. In 2019, while still enrolled at SMU, Guess participated in preparatory examinations through SMU that served to ready students for testing by the National Board of Medical Examiners. After twice taking the preparatory examination with no accommodations for his ADHD, Guess sat for a third preparatory examination. He expected that he would receive accommodations, but none were provided. SMU canceled a fourth preparatory examination because of the unpaid balance on Guess’s account with SMU. Around this time, Guess attempted to enroll at Washington University of Health and Science, a medical school in Belize, who conditionally accepted him on the basis of his unofficial SMU transcript showing a grade point average (GPA) of 2.15. SMU delayed releasing an official transcript because of a claimed outstanding balance owed by Guess. In July 2019, Guess brought a claim against SMU and OPMC in federal court, alleging a failure to accommodate under the Americans with Disabilities Act (ADA), 42 US 12101 et seq., and breach of contract. The federal court, however, summarily dismissed his claims. See Guess v St Martinus Univ, unpublished opinion of the United States District Court for the Eastern District of Michigan, issued April 13, 2021 (Case No. 2:19-cv-12159), pp 13-21. During the federal litigation, SMU finally released Guess’s official transcript. The transcript revealed a GPA of 0.82, which precluded his enrollment at Washington University of Health and Science. In response, Guess amended his complaint to add allegations related to the allegedly improper calculation of his GPA on his official transcript. Later, he moved for leave to file an amended complaint, seeking to add a claim for retaliation under the ADA based upon the discrepancies between his GPA on his unofficial transcript and his official transcript, a claim for promissory-estoppel, and two new contract claims. In its opinion summarily dismissing Guess’s case, the court also denied the motion to amend. Id. at 13. Thereafter, the Sixth Circuit affirmed the dismissal of Guess’s claims. Guess v St Martinus Univ, unpublished opinion of the United States Court of Appeals for the Sixth Circuit, issued April 26, 2022 (Case No. 21-1478), p 1. Guess then commenced the instant action in the Oakland Circuit Court, asserting claims of tortious interference with a business relationship or expectation, and retaliation under the Persons with Disabilities Civil Rights Act (PWDCRA), 37.1101 et seq., and seeking specific performance of a contractual agreement. The trial court, however, granted defendants’ motion for summary disposition on the basis of res judicata and collateral estoppel stemming from the federal suit. The court further held that Guess had failed to submit evidence sufficient to create a genuine issue of m
People of Michigan v. Marty Ray Mitchell
If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports. STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED June 10, 2025 Plaintiff-Appellee, 10:26 AM v No. 373722 Cheboygan Circuit Court MARTY RAY MITCHELL, LC No. 2022-006430-FH Defendant-Appellant. Before: MARIANI, P.J., and MALDONADO and YOUNG, JJ. PER CURIAM. Defendant pleaded guilty to operating while intoxicated, third offense (OWI-III), MCL 257.625(1); MCL 257.625(9)(c), and was sentenced to serve three to five years’ imprisonment. Defendant appeals by leave granted,1 challenging his sentence. We vacate defendant’s sentence and remand for resentencing. I. FACTUAL AND PROCEDURAL BACKGROUND On August 21, 2022, two officers conducted a traffic stop of defendant. During the stop, the officers detected a strong smell of marijuana coming from inside of defendant’s truck and saw that defendant had “watery, glassy, bloodshot eyes.” Defendant also admitted to the officers that he did not have insurance for the truck. The officers cited defendant for having no insurance but offered him 10 minutes to procure it to avoid having the vehicle towed. When the officers returned to defendant’s truck, defendant stated that he had not gotten insurance. Defendant then rolled up his window and drove off with the officers in pursuit. Defendant subsequently stopped at a local park but refused to get out of his truck when the officers repeatedly ordered him to do so. The officers called for backup and additional officers arrived shortly thereafter, but defendant continued to refuse to get out of his truck. Following a 30-minute standoff, the officers ultimately broke defendant’s window to forcibly remove him from the truck. As the officers attempted to 1 People v Mitchell, unpublished order of the Court of Appeals, entered January 21, 2025 (Docket No. 373722). -1- remove defendant from the truck, he kicked at them and refused to let go of the steering wheel. It ultimately took four officers to remove defendant from the truck, put him in restraints, and arrest him. A search of defendant’s truck revealed two bottles of liquor, a fanny pack containing marijuana residue, a marijuana pipe, and a half-smoked marijuana joint. Defendant’s subsequent blood draw was positive for THC at a level indicating recent use. Following his arrest, defendant was charged as a fourth-offense habitual offender, MCL 769.12, with OWI-III; fourth-degree fleeing and eluding, MCL 750.479a(2); operating a motor vehicle without security, MCL 500.3102; transportation or possession of an open container of alcohol in a motor vehicle, MCL 257.624a; and five counts of resisting or obstructing a police officer, MCL 750.81d(1). Pursuant to a plea agreement, defendant pleaded guilty to OWI-III in exchange for dismissal of all other charges and withdrawal of the notice to enhance his sentence based on his fourth-habitual status. The trial court departed upward from the advisory minimum sentencing guidelines range of one to two years’ imprisonment and sentenced defendant as described. Defendant subsequently applied for leave to appeal to this Court, which was granted. II. DEPARTURE SENTENCE Defendant argues that he is entitled to resentencing because the trial court imposed an unreasonable and disproportionate upward departure from his advisory minimum sentencing guidelines range. While defendant has not shown error in the trial court’s threshold decision that a departure sentence was warranted, we agree with defendant (and the prosecution) that the court did not sufficiently justify the extent of its departure sentence. We therefore vacate defendant’s sentence and remand for resentencing. “A sentence that departs from the applicable guidelines range will be reviewed by an appellate court for reasonableness.” People v Lockridge, 498 Mich 358, 392; 870 NW2d 502 (2015). Whether the trial court imposed a reasonable sentence is reviewed for an abuse of discretion. People v Steanhouse, 500 Mich 453, 476; 902 NW2d 327 (2017). “An unreasonable sentence amounts to an abuse of discretion and a sentence is unreasonable if the trial court failed to follow the principle of proportionality or failed to provide adequate reasons for the extent of the departure from the sentencing guidelines.” People v Sherrill, ___ Mich App ___, ___; ___ NW
People of Michigan v. Jennifer Lee Witz
If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports. STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED June 10, 2025 Plaintiff-Appellee, 3:19 PM v No. 372258 Baraga Circuit Court JENNIFER LEE WITZ, formerly known as LC No. 2023-001735-FH JENNIFER LEE KLOPSTEIN, Defendant-Appellant. Before: BOONSTRA, P.J., and REDFORD and MARIANI, JJ. PER CURIAM. In this interlocutory appeal, defendant, Jennifer Lee Witz, appeals by leave granted 1 the trial court’s order denying her motion to dismiss a charge against her. Defendant was charged with delivery of methamphetamine, MCL 333.7401(2)(b)(i). Defendant asserts she was entrapped. Defendant’s charge stems from her communications with an undercover officer and her attempted sale of methamphetamine to him. As part of their communications leading up to the attempted sale, the officer offered defendant a fabricated employment application. On appeal, defendant argues the trial court clearly erred by denying her motion to dismiss because the officer entrapped her into the attempted sale by the condition of the potential employment. For the reasons stated in this opinion, we disagree and affirm. I. BACKGROUND A detective deputy with the Upper Peninsula Substance Abuse Enforcement Team learned, from confidential informants and local law enforcement officers in Baraga County, that defendant and her partner had been selling methamphetamine out of their home. The officer used a social media application to communicate with defendant without telling her that he was a law enforcement officer. Once the officer verified that it was defendant using the account, he asked if 1 People v Witz, unpublished order of the Court of Appeals, entered January 17, 2015 (Docket No. 372258) (O’BRIEN, J., would have denied leave to appeal). -1- she had any stimulants. In response, defendant told the officer that she could get methamphetamine. The officer asked to buy methamphetamine several times while they exchanged messages about defendant’s personal life and relationship issues. During their conversation, defendant mentioned that she quit her job several months earlier and was unemployed. The officer offered to give defendant a job application for his friend’s company, explaining that his friend was looking for someone with a driver’s license to haul materials and pick up supplies. The job and application were fictitious, but defendant believed they were real. The officer later offered to meet with defendant and give her an application, and he further asked defendant if she could bring any Adderall or methamphetamine to sell him. Defendant told the officer that she could sell him a gram of methamphetamine and arranged to meet with him within a couple hours. When defendant met with the officer and attempted to sell him the methamphetamine, the officer arrested her. Defendant’s conversation with the officer began less than 48 hours before her arrest, and the officer was not familiar with defendant outside of his investigation. After she was bound over, defendant moved to dismiss the charge on the basis that she had been entrapped. She argued that she was unemployed and that the officer engaged in reprehensible conduct by promising her help with finding a job in exchange for selling him drugs. The trial court found that defendant did not meet her burden to establish entrapment, noting that the officer was not the instigator of defendant’s criminal activity and the officer’s behavior was different from that in cases when entrapment did occur. The trial court emphasized that the officer did not appeal to defendant as a friend, he did not promise her employment, and he did not try to convince defendant that her conduct was legal. In light of the evidence presented at defendant’s preliminary examination and motion hearing, the trial court denied defendant’s motion to dismiss on entrapment grounds. This appeal followed. II. STANDARD OF REVIEW This Court has recently clarified the proper standard of review for claims of entrapment. “[F]actual findings are reviewed for clear error, questions of law are reviewed de novo, and the trial court’s ultimate ruling on the issue of entrapment is reviewed for clear error.” People v Jade, ___ Mich App ___, ___; ___ NW3d ___ (2024) (Docket No. 365951); slip op at 6. Clear e