C in Re Rec III ( 2023 )

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IN RE REC, III UNPUBLISHED
May 25, 2023
No. 362011
St. Clair Circuit Court
LC No. 20-000773-PP
Before: LETICA, P.J., and BORRELLO and RIORDAN, JJ.
LETICA, P.J., (concurring).
I concur in the analysis rejecting defendant’s ineffective assistance of counsel claim. But
I write separately to explain why I reject defendant’s contention that MCR 3.708(H)(1)1 is
unconstitutional under Const 1963, art 1, § 20.
By way of background, both the United States and Michigan Constitutions afford an
accused in a criminal case a jury trial. See US Const, Am VI (“In all criminal prosecutions, the
accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and
district wherein the crime shall have been committed . . . .”); Const 1963, art I, § 20 (“In every
criminal prosecution, the accused shall have the right to a speedy and public trial by an impartial
jury, which may consist of less than 12 jurors in prosecutions for misdemeanors punishable by
imprisonment for more than 1 year . . . .”) The Sixth Amendment applies to the states through the
Fourteenth Amendment and requires defendants accused of serious crimes to be afforded the right
to trial by jury. See Duncan v Louisiana, 391 US 145, 157-162; 88 S Ct 1444; 20 L Ed 2d 491(1968). In Duncan, the United States Supreme Court “also reaffirmed the long-established view
that so-called ‘petty offenses’ may be tried without a jury.” Baldwin v New York, 399 US 66, 68;
90 S Ct 1886; 26 L Ed 2d 437 (1970). Thereafter, the United States Supreme Court held “that no
offense can be deemed ‘petty’ for purposes of the right to a jury trial where imprisonment for more
than six months is authorized.” Id. at 69. Later still, this Court recognized that the language of
the state Constitution provided broader protection than that afforded by federal Constitution,
1
MCR 3.708(H)(1) provides “[t]here is no right to a jury trial” during a contempt hearing for an
alleged violation of a personal protection order (PPO).
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namely, a defendant was entitled to jury trial, even though the offense was petty and did not permit
incarceration, if the offense was a misdemeanor subject to criminal prosecution. See People v
Antkoviak, 242 Mich App 424, 480-482; 619 NW2d 18 (2000).
As to an accused’s entitlement to a jury trial in a criminal contempt proceeding, however,
our Supreme Court ruled in 1966 that it was “not ready—as the United States Supreme Court has
not been ready—to declare it is a necessary constitutional prerequisite to a criminal contempt
proceeding that a defendant be afforded a jury trial.” Cross Co v United Auto, Aircraft &
Agricultural Implement Workers of America, Local 155, 377 Mich 202, 211; 139 NW2d 694(1966). But, just two years later, the United States Supreme Court declared “that serious contempts
are so nearly like other serious crimes that they are subject to the jury trial provisions of the
[federal] Constitution,” even though, like other petty offenses, petty contempt offenses can “be
tried without honoring a demand for a jury trial.” Bloom v Illinois, 391 US 194, 198; 88 S Ct 1477;
20 L Ed 2d 522 (1968) (emphasis added). Thus, a criminal contempt offense punishable by less
than six months’ imprisonment is a petty offense and the accused is not entitled to a jury trial.
Cheff v Schnackenberg, 384 US 373, 380-381; 86 S Ct 1523; 16 L Ed 2d 629 (1966) (a defendant
sentenced to six months’ imprisonment for criminal contempt was not entitled to a jury trial);
Antkoviak, 242 Mich App at 464 (“Michigan courts . . . apply the federal serious crime versus petty
offense analysis when determining the right to a jury trial” in a criminal contempt proceeding);
Ann Arbor v Danish News Co, 139 Mich App 218, 232-233; 361 NW2d 772 (1984) (there is no
right to a jury trial for petty criminal or civil contempts); People v Goodman, 17 Mich App 175,
178 n 6, 178-179; 169 NW2d 120 (1969) (“Criminal contempt remains a ‘petty’ crime in Michigan,
and a jury trial is not mandatory.”).
To summarize, the Sixth Amendment to the federal Constitution, US Const Ams VI and
XIV, guarantees the right to a jury trial for criminal contempt matters if the punishment imposed
is greater than six months.2 Bloom, 391 US at 198-199. The Michigan Constitution, Const 1963,
art 1, § 20, guarantees the right to a jury trial for both petty and serious violations of criminal
statutes, but does not extend the right to a jury trial to petty criminal contempt proceedings.
Antkoviak, 242 Mich App at 469-472, 481-482.3 See also Brandt v Brandt, 250 Mich App 68, 72;
645 NW2d 327 (2002) (“MCR 3.708(H)(1) specifically explains that a respondent in a contempt
proceeding is not entitled to a jury trial.”).
Although the maximum sentence for an adult who violates a personal protection order is a
93-day jail term and a $500 fine, MCL 600.2950(23), defendant on appeal points to Antkoviak and
urges us to declare that the Michigan Constitution affords a person accused of criminal contempt
2
The United States Supreme Court has not established a line between petty and serious fines for
contempt, but recognized that it had previously held that a $10,000 fine “imposed on a union was
insufficient to trigger the Sixth Amendment right to jury trial.” Int’l Union, United Mine Workers
of America v Bagwell, 512 US 821 837 n 5; 114 S Ct 2552; 129 L Ed 2d 642 (1994), citing Muniz
v Hoffman, 422 US 454, 477; 95 S Ct 2178; 45 L Ed 2d 319 (1975).
3
Defendant’s reliance on Hendershot v Hendershot, 164 W Va 190; 263 SE2d 90 (1980), is not
persuasive in light of Antkoviak and Brandt, which are binding under MCR 7.215(J)(1).
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the right to a jury trial. Defendant, however, fails to recognize that the Antkoviak Court held that
Const 1963, art 1, § 20 requires a jury trial when an accused is criminally charged with a
misdemeanor and explains why this right to a jury trial does not extend to one accused of criminal
contempt. Antkoviak, 242 Mich App at 469-472, 481-482. Given the plain language of our state
Constitution, I see no reason to disagree with Antkoviak or Brandt, nor any reason to reject Danish
News Co and Goodman.4
/s/ Anica Letica
4
In light of my agreement with these decisions, there is no basis to initiate and follow the conflict
provisions of MCR 7.215(J)(2).
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