People of Michigan v. Jeffrey Alan Stoltz ( 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
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
July 20, 2023
Plaintiff-Appellee,
v No. 363425
Kent Circuit Court
JEFFREY ALAN STOLTZ, LC No. 18-003731-FH
Defendant-Appellant.
Before: M. J. KELLY, P.J., and SHAPIRO and REDFORD, JJ.
PER CURIAM.
In 2018, a jury convicted defendant of two counts of larceny by conversion of more than
$20,000, MCL 750.362; MCL 750.356(2)(a); and four counts of writing or a delivering an
insufficient funds check of $500 or more, MCL 750.131(3)(c). The trial court sentenced defendant
above the recommended guidelines range and ordered defendant to pay restitution totaling
$287,998.62. Defendant appealed to this Court, and a panel of this Court affirmed defendant’s
convictions but remanded for (1) an evidentiary hearing regarding restitution and (2) resentencing.1
On remand, the trial court imposed the same upward departure sentence, concurrent terms of 6 to
10 years’ imprisonment for his larceny convictions. The trial court resentenced defendant to time
served for his remaining convictions and ordered defendant to pay restitution totaling $205,444.76.
Defendant appeals as of right. For the reasons stated in this opinion, we vacate defendant’s
sentences and the restitution award, and we remand for further proceedings consistent with this
opinion.
I. FACTUAL AND PROCEDURAL BACKGROUND
In defendant’s previous appeal, a panel of this Court summarized the basic facts of this
case as follows:
1
People v Stoltz, unpublished per curiam opinion of the Court of Appeals, issued March 12, 2020
(Docket No. 346713).
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Defendant was a licensed builder, and the sole owner of a construction
company called Emry Custom Homes and Remodeling, LLC. His convictions arise
from his failure to complete work, or refund money, in connection with renovations
on two houses in East Grand Rapids. For the first project, on Hall Street, defendant
received $122,000; and for the second project, on Plymouth Avenue, defendant
received $64,445. Although defendant did some work on the homes, he left the
projects unfinished and used the money for his own purposes, including payment
of old business debts, refunds to past customers, and payment of personal expenses,
including a family vacation, dining, clothing, and other merchandise. In connection
with the projects, defendant also failed to pay some of the suppliers and
subcontractors for work they completed or materials they supplied. He also wrote
at least four checks for insufficient funds of $500 or more, resulting in his
convictions for writing bad checks. Other-acts evidence indicated that, on at least
three other occasions, defendant accepted payment for projects but failed to
complete the work. After the victims in this case reported the matter to police and
a news broadcast aired, defendant left Michigan and moved his family to Illinois.
Defendant testified in his own defense. He delineated his 22 years of
experience as a builder. After a prior career working in sales, defendant started his
own construction company, but did not have any capital, business loans, or line of
credit to fund the company. He acquired customers through friends and his
children’s school. Defendant claimed that he always intended to complete the
construction contracts and did not intend to deprive his customers of their money.
However, he believed that once he was paid by his customers he was entitled to use
those funds as corporate money. Therefore, he paid himself as well as purchased
items necessary to maintain his business, such as gas for his work vehicle, work
clothes, and materials and tools. However, defendant also admitted that non-work
related charges were made by the business. Additionally, he acknowledged that he
lied to his customers about the status of the project, the ordered materials, and
payments to subcontractors.
The defense also presented the expert testimony of Gary Byker, a licensed
builder and self-employed contractor. Byker testified that defendant “massively
underbid” the projects. The jury convicted defendant as charged. [People v Stoltz,
unpublished per curiam opinion of the Court of Appeals, issued March 12, 2020
(Docket No. 346713), pp 1-2.]
At the original sentencing in 2018, the trial court departed upward and sentenced defendant
to 6 to 10 years’ imprisonment for his larceny-by-conversion convictions and 1 to 2 years’
imprisonment for passing bad checks. The trial court also ordered defendant to pay restitution
totaling $287,998.62. Defendant appealed to this Court as of right, raising a variety of challenges
to his convictions and sentences. The panel affirmed defendant’s convictions, but remanded for
an evidentiary hearing on restitution and ordered resentencing. Id. at 12-18.
On remand, the trial court held an evidentiary hearing on restitution. The prosecutor sought
restitution for the victims totaling $205,444.40, which included $100,283.76 for the Plymouth
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Avenue homeowners and $105,160.64 for the Hall Street homeowners. The prosecutor conceded
on remand that various items previously awarded were not compensable as restitution. To support
the restitution request, the prosecutor submitted two charts—one for the Hall Street homeowners
and one for the Plymouth Avenue homeowners—detailing the amounts that they sought in
restitution. At the hearing, the homeowners testified that the charts accurately reflected their
losses. Defendant argued that he performed a significant amount of work on the projects and that
the homeowners had not adequately accounted for the value of this work in their restitution
requests. He relied again on Byker’s trial testimony and previous submissions. Defendant asserted
that the homeowners sought a windfall. At the conclusion of the hearing, the trial court credited
the prosecutor’s proofs and granted the full amount of restitution requested.
In May 2022, the trial court resentenced defendant, again departing upward from the
revised recommended guideline range, to 6 to 10 years’ imprisonment for his larceny-by-
conversion convictions to be served concurrently. The trial court resentenced defendant to time
served for his remaining convictions and gave him credit for time served, 1,396 days. The trial
court articulated its reasons for defendant’s upward departure sentence focusing on defendant’s
numerous lies and acts of deception during the time when the victims were vulnerable because
their homes had been torn apart, and the amount of restitution.
II. ANALYSIS
A. RESTITUTION
1. STANDARD OF REVIEW
We review a trial court’s award of restitution for an abuse of discretion, and the trial court’s
findings of fact are reviewed for clear error. People v Fawaz, 299 Mich App 55, 64; 829 NW2d
259 (2012). “A finding is clearly erroneous if this Court is left with the definite and firm conviction
that a mistake has been made.” People v Matzke, 303 Mich App 281, 284; 842 NW2d 557 (2013)
(quotation marks and citation omitted). “An abuse of discretion occurs when the court chooses an
outcome that falls outside the range of reasonable and principled outcomes.” People v Unger, 278
Mich App 210, 217; 749 NW2d 272 (2008). To the extent review of a restitution award involves
interpretation of the Crime Victim’s Rights Act (CVRA), MCL 780.751 et seq., our review is
de novo. Fawaz, 299 Mich App at 64.
2. RESTITUTION RESTORES WHAT VICTIMS LOST
On appeal, defendant challenges the amount of restitution imposed and asserts that he was
not afforded a fair offset for the work he performed on the victims’ homes. Not all defendant’s
restitution challenges have merit, but we conclude that the trial court abused its discretion by
awarding the victims more than the amounts to which they are entitled.
“Crime victims have a right to restitution under both the Michigan Constitution and
Michigan statutory law.” People v Wahmhoff, 319 Mich App 264, 269; 900 NW2d 364 (2017).
The CVRA provides for a mandatory award of restitution for crime victims under
MCL 780.766(2), as follows:
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Except as provided in subsection (8), when sentencing a defendant
convicted of a crime, the court shall order, in addition to or in lieu of any other
penalty authorized by law or in addition to any other penalty required by law, that
the defendant make full restitution to any victim of the defendant’s course of
conduct that gives rise to the conviction or to the victim’s estate. . . .
Relevant to this case, MCL 780.766(3) provides in relevant part:
(3) If a crime results in damage to or loss or destruction of property of a
victim of the crime or results in the seizure or impoundment of property of a victim
of the crime, the order of restitution shall require that the defendant do 1 or more
of the following, as applicable:
(a) Return the property to the owner of the property or to a person
designated by the owner.
(b) If return of the property under subdivision (a) is impossible, impractical,
or inadequate, pay an amount equal to the greater of subparagraph (i) or (ii), less
the value, determined as of the date the property is returned, of that property or any
part of the property that is returned:
(i) The fair market value of the property on the date of the damage, loss, or
destruction. However, if the fair market value of the property cannot be determined
or is impractical to ascertain, then the replacement value of the property shall be
utilized in lieu of the fair market value.
(ii) The fair market value of the property on the date of sentencing.
However, if the fair market value of the property cannot be determined or is
impractical to ascertain, then the replacement value of the property shall be utilized
in lieu of the fair market value.
Restitution is intended to be remedial and “to shift the burden of losses arising from
criminal conduct—as much as practicable—from crime victims to the perpetrators of the crimes.”
Fawaz, 299 Mich App at 65 (quotation marks and citation omitted). The amount of restitution
must be based on the actual loss suffered by the victim. Id. “The restitution calculation cannot be
premised on speculative or conjectural loss, but, rather, the evidence must support a reasonably
certain factual foundation for the amount.” In re White, 330 Mich App 476, 483; 948 NW2d 643(2019). Moreover, “[r]estitution is not designed to provide a windfall for crime victims, but was
created to ensure that victims are made whole for their losses to the extent possible.” Id. at 480.
The prosecutor bears the burden of establishing the amount of restitution by a preponderance of
the evidence. MCR 6.425(D)(2)(b); Fawaz, 299 Mich App at 65.
“When determining the amount of restitution to award a victim, the focus is consistently
not on what a defendant took, but what a victim lost because of the defendant’s criminal activity.”
In re White, 330 Mich App at 483 (quotation marks and citation omitted). “MCL 780.766(2)
requires a direct, causal relationship between the conduct underlying the convicted offense and the
amount of restitution to be awarded.” People v McKinley, 496 Mich 410, 421; 852 NW2d 770-4-
(2014). Further, restitution is not a substitute for civil damages. People v Orweller, 197 Mich
App 136, 140; 494 NW2d 753 (1992). “A trial court may abuse its discretion by blurring the
distinction between a civil remedy for damages and the criminal penalty of restitution.” People v
Corbin, 312 Mich App 352, 361; 880 NW2d 2 (2015).
a. THE PLYMOUTH AVENUE HOMEOWNERS
Regarding the Plymouth homeowners, the trial court awarded them a total of $100,283.76.
The Plymouth homeowners paid defendant a total of $64,445, and by their calculations, defendant
performed a total of $14,350 worth of work on their home. Crediting defendant for this work, the
Plymouth homeowners sought the return of $50,095. However, they also sought an additional
$50,188.76, which is the amount they paid other contractors to finish their home renovation. The
trial court awarded them the combined amounts. In doing so, the trial abused its discretion by
awarding them more than restitution.
Significant to our conclusions in this regard, in defendant’s previous appeal, the panel
addressed the Plymouth homeowners’ restitution request in a footnote, as follows:
Notably, the Plymouth Ave—who paid defendant approximately $64,000—
requested the return of $50,000 and an additional $59,289.74 to have him pay to
complete the house. “[R]estitution is not intended to provide a windfall for crime
victims but rather to ensure that victims, to the greatest extent possible, are made
whole for their losses.” Corbin, 312 Mich App at 370 (quotation marks and citation
omitted). Absent a more specific explanation for this restitution request, it is
challenging to see how making them whole would involve defendant refunding
their money for work not completed and at the same time paying to complete the
project. [Stoltz, unpub op at 14 n 7.]
The trial court’s award on remand to the Plymouth homeowners totaling $100,283.76, went
beyond restitution. The Plymouth homeowners were not entitled to a refund and payment to
complete the same project, because the goal of restitution is to make crime victims whole for their
losses. Corbin, 312 Mich App at 370. Had defendant performed as promised rather than
converting their payments for his own use, the Plymouth homeowners would have had their home
remodeled for $64,445. Instead, defendant received $64,445 from them but performed only
$14,350 worth of work on their home. Subtracting the work performed from the amount paid, the
Plymouth homeowners were entitled to a refund of $50,095.
Refunding $50,095, however, would be slightly inadequate to compensate the Plymouth
homeowners for their loss because it would not be enough to complete the project, which cost
them $50,188.76. The evidence supports the conclusion that the cost to complete the project
resulted from defendant’s conversion of their funds because, as part of his scheme to obtain money
from the Plymouth homeowners, defendant began work on the Plymouth homeowners’ home,
leaving them in a position such that they had to complete the project. To the extent that the amount
taken by defendant was inadequate to complete the project, the victims are entitled to the additional
$93.76. If no work had begun, returning the money would be restitution in full. The evidence at
trial, however, indicated that defendant tore apart the Plymouth home and left the house in a state
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of disrepair that required completion of the project to make the home safe and habitable again.
Restitution in this case requires compensating the Plymouth homeowners $50,188.76, which
provides for the return of the converted funds, accounts for the work performed by defendant, and
leaves the Plymouth homeowners with the means to complete their remodel. This amount makes
the Plymouth homeowners whole and provides them with what they lost and nothing more. See
In re White, 330 Mich App at 483. This comports with MCL 780.766.
Defendant argues that the trial court erred by failing to fully credit defendant for the work
that he performed on the Plymouth homeowners’ home. Regarding defendant’s work, in
defendant’s previous appeal, the panel concluded that defendant was entitled to a determination of
the value that defendant provided to “the homeowners in the form of services and products, and
that amount, if any, should be offset against the amount of restitution.” Stoltz, unpub op at 14.
The rationale being that funds used by defendant to improve the property were, in effect,
“returned” to the homeowners for purposes of calculating restitution. See United States v Shepard,
269 F3d 884, 887-888 (CA 7, 2001). On remand, relying on the Plymouth homeowners’
calculations, the trial court concluded that defendant performed $14,350 worth of work on the
home, which was, as noted, offset against the refund that defendant was ordered to pay the
Plymouth homeowners. Defendant challenges the $14,350 amount on two bases.
First, relying on the opinions of a defense expert, Byker, defendant asserts that his work
was worth considerably more than $14,350. According to the evidence at the restitution hearing,
the $14,350, however, was calculated based on the value assigned for the work in defendant’s
contract with the Plymouth homeowners. Although not necessarily dispositive on the issue of
value, the contract price is evidence of the value of defendant’s services. See generally Ordon v
Johnson, 346 Mich 38, 49; 77 NW2d 377 (1956) (recognizing that a contract, even a void contract,
may be used as evidence for the purpose of showing the value of services and estimating damages).
The weight to give this evidence, and the credibility of Byker’s testimony on the value of
defendant’s services, were issues for the trial court. See People v Passage, 277 Mich App 175,
177; 743 NW2d 746 (2007). Given the contract price for defendant’s services, the trial court did
not err by crediting the Plymouth homeowners’ calculations and valuing defendant’s work on their
home at $14,350. See id.Second, defendant also contends that the Plymouth homeowners did not fully acknowledge
the work that he performed on their home. According to defendant, a comparison to the Plymouth
homeowners’ own trial testimony supports that he performed additional work for which he was
not credited. Defendant’s argument on this point, however, is cursory to the point of being
abandoned. He does not brief the issue on appeal but refers this Court to his restitution brief in the
trial court, which he asserts provides a list of the work that he performed; this list is, in turn, simply
a long list of string citations to the trial transcript. Defendant leaves it to this Court to actually
conduct a comparison of the Plymouth homeowners’ trial testimony to the work for which he was
given credit at the restitution hearing. It is not enough for an appellant to simply “announce a
position or assert an error and then leave it up to this Court to discover and rationalize the basis
for his claims, or unravel and elaborate for him his arguments, and then search for authority either
to sustain or reject his position.” People v Waclawski, 286 Mich App 634, 679; 780 NW2d 321(2009) (quotation marks and citation omitted). By failing to identify with any specificity work
that he completed for which he was not credited at the restitution hearing, defendant has abandoned
this argument. See id.-6-
Defendant’s other challenges to the restitution awarded the Plymouth homeowners lack
merit, and deferring to the trial court’s factual findings and credibility assessments, the record in
this case supports a restitution award in the amount of $50,188.76. For these reasons, we vacate
the trial court’s restitution award to the Plymouth homeowners and remand for further proceedings
consistent with this opinion.
b. THE HALL STREET HOMEOWNERS
Respecting the Hall Street homeowners, deferring to the trial court’s factual findings and
credibility assessments, the record indicates that they paid defendant $121,905, and on remand,
the trial court awarded restitution to them in the amount of $105,160.64. On remand, the
prosecutor never attempted to calculate the amount that defendant should refund for work not
completed. Given the payment to defendant of $121,905, and given trial testimony from the Hall
homeowners that defendant completed an estimated 40% to 50% of the project—not accounting
for the fact that some work would likely be more expensive than other work—renders the amount
converted by defendant somewhere between $60,952.50 and $73,143. Although the prosecutor’s
briefing and argument were sparse, it appears that the prosecutor believed that a return of the
money under MCL 780.766(3)(a) would be inadequate and that, instead, the measure of restitution
should be the cost to complete the project. Like the Plymouth homeowners, the evidence supports
the conclusion that the cost to complete the project resulted from defendant’s conversion of their
funds because, as part of his scheme to obtain money from the Hall homeowners, defendant began
work on the Hall homeowners’ home, but left them in a position requiring them to complete the
project.2 By the Hall homeowners’ calculations, the “total cost to finish the project” as set forth
in their chart—minus items that are not compensable as restitution—amounts to $76,767.64. As
with the Plymouth homeowners, providing the Hall homeowners restitution in the amount to finish
the project will make them whole—they will receive what they lost in the form of a completed
home. See In re White, 330 Mich App at 483. The record in this case supports restitution in the
amount of $76,767.64.
Defendant correctly points out that the Hall homeowners are not entitled to an additional
$28,393 for “items taken out of scope,” which appear to be miscellaneous items that defendant did
not complete and that the Hall homeowners elected not to have anyone else complete when they
finished their home remodel. Ordering defendant to pay $76,767.64 for completion of the project
makes the Hall homeowners whole by providing them with a habitable home and compensates
them for the amount that defendant converted. Further, from the paucity of evidence presented by
the prosecutor at the restitution hearing, it is not entirely clear how these “out of scope” items were
valued. There was no evidence of estimates from other contractors for these items, and no other
explanation was given for how the Hall homeowners concluded that these items were worth over
2
If no work had begun, returning the money would be restitution in full. In this case, however, as
with the Plymouth homeowners, the evidence at trial supported that defendant began tearing apart
the Hall homeowners’ home, leaving the house in a state of disrepair that required completion of
the project to make the home safe and habitable again. Again, we do not suggest that restitution
in a case involving larceny by conversion in the construction context is always going to involve
paying for completion of the project.
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$28,000. Restitution cannot be “premised on speculative or conjectural loss, but, rather, the
evidence must support a reasonably certain factual foundation for the amount.” In re White, 330
Mich App at 483. The prosecutor failed to provide a factual foundation for these amounts, and
they should have been disallowed. See id.
Defendant also contends respecting the Hall homeowners that the trial court failed to afford
him the full value of the work that he performed as an offset to the restitution awarded. Defendant
argues that the Hall homeowners did not fully acknowledge the work that he performed on their
home and that a comparison to their trial testimony would reveal additional work for which
defendant was not credited. As with the Plymouth homeowners, defendant has abandoned this
argument by failing to adequately brief it and instead leaving it to this Court to wade through his
string cites to the trial transcript to conduct a comparison between the Hall homeowners’ trial
testimony and the restitution request. See Waclawski, 286 Mich App at 679. By failing to identify
with any specificity work that he completed for which he was not credited at the restitution hearing,
defendant has abandoned this argument. See id.Defendant also contends that the Hall homeowners afforded him no value for the work that
he performed and that the trial court, therefore, erred by relying on the Hall homeowners’
calculations rather than crediting Byker’s expert testimony on the value of defendant’s work. One
of the Hall Street homeowners testified, however, that defendant did receive credit for the value
of his work. She explained that defendant’s work was considered by the contractors who bid to
finish the project. In other words, the contractors who bid to finish the project were not redoing
defendant’s work; they started at the state of the project as defendant left it. The record reflects
that the Hall homeowners afforded defendant value for his work by only seeking the costs to finish
items. The weight to give the homeowners’ testimony as compared to Byker’s calculations of
value was an issue for the trial court. See Passage, 277 Mich App at 177. Deferring to the trial
court’s factual findings and credibility assessments, the Hall homeowners are entitled to a total
restitution award of $76,767.64.
B. RESENTENCING
On appeal, defendant argues that he is entitled to resentencing because the trial court
resentenced defendant without obtaining a reasonably updated presentence investigation report
(PSIR). We agree.3
The PSIR “is a vital and necessary component of this effort to prescribe informed,
individualized punishment in felony matters.” People v Triplett, 407 Mich 510, 514; 287 NW2d
165 (1980). It provides information related to “the antecedents, character, and circumstances” of
the individual being sentenced to ensure “that the punishment is tailored not only to the offense,
but also to the offender.” People v Miles, 454 Mich 90, 97; 559 NW2d 299 (1997). Indeed, a
3
Defendant also challenges the reasonableness and proportionality of his sentences. Given our
conclusion that resentencing is warranted under People v Triplett, 407 Mich 510; 287 NW2d 165(1980), we decline to address that issue.
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PSIR is a mandatory component of sentencing; a sentence may not be imposed without the aid of
a PSIR. Triplett, 407 Mich at 514.
Significant to this case, at a resentencing, “a reasonably updated” PSIR must be utilized,
and such a report “must be complete, accurate, and reliable.” Id. at 515. The requirement of a
reasonably updated report is “a necessary corollary to the principle that sentencing must be
individualized and tailored to the particular circumstances of the case and the offender at the time
of sentencing.” Id. Conduct while in prison pending resentencing is among the information that
should be included in an updated PSIR. See id. at 516.
The sentencing court should make every effort to individualize sentences in
order to further the goal of rehabilitation. In this regard a defendant’s conduct while
in prison may shed considerable light on the prospect of rehabilitation. An updated
presentence report which includes prison conduct would describe the defendant’s
most recent behavior and would be a valuable tool in resentencing. Such a
procedure would not be a burden on the probation department since records are kept
at prison which could easily be made available. [Id. (quotation marks and citation
omitted).]
For example, in Triplett, the court resentenced the defendant in 1976 based on a PSIR prepared in
1972. Id. at 512. The only update made to the report in anticipation of the 1976 resentencing was
“the inclusion of a brief cover sheet,” which provided “no further insight into defendant’s conduct
since 1972.” Id. at 513. The defendant objected to the staleness of the report, noting that it had
not been “updated to reflect defendant’s subsequent prison conduct and alleged progress toward
rehabilitation.” Id. at 512. Holding that a reasonably updated PSIR was a requirement for
resentencing, our Supreme Court vacated the defendant’s sentence and remanded for resentencing.
Id. at 515-516.
In this case, the trial court resentenced defendant in May 2022 without utilizing a
reasonably updated PSIR. Under Triplett, this error warrants resentencing. The PSIR in this case
was prepared in anticipation of defendant’s original sentencing in November 2018. The
information, therefore, was 31/2 years old. The only update to the PSIR was a one-page document
amending the amount of restitution and jail credit. As with the update in Triplett, 407 Mich at 512-
513, this document provided “no further insight into defendant’s conduct” in the last few years,
including no information about his conduct while in prison, see id. at 516. In a sentencing
memorandum, defendant specifically objected to the staleness of the PSIR, including the fact that
it omitted information about his conduct while in jail, which defense counsel advised the court had
been positive. See id. at 512; see also People v Crook, 123 Mich App 500, 503; 333 NW2d 317(1983) (remanding for resentencing with an updated PSIR when the defendant’s allocution at
sentencing suggested that there were “various changed circumstances”). Defendant’s behavior
while in prison “may shed considerable light” on his prospects for rehabilitation, and by failing to
consider up-to-date information about defendant’s conduct, the trial court lacked necessary
information to enable it to tailor defendant’s sentence both to the offense and the offender. See
Triplett, 407 Mich at 515-516. Therefore, we vacate defendant’s sentences and remand for
resentencing utilizing an updated PSIR.
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C. REQUEST FOR A NEW JUDGE
Defendant requests that, if we remand for further proceedings, a new judge should be
assigned. Although we do not find evidence of bias or prejudice, on remand the case shall be
assigned to a different judge to preserve the appearance of justice.
When remanding for resentencing, this Court has the authority to order that a different
judge should carry out the resentencing on remand.4 People v Dixon-Bey, 340 Mich App 292, 303;
985 NW2d 904 (2022). To determine whether to reassign a case to a new judge on remand, this
Court considers three factors:
(1) whether the original judge would reasonably be expected upon remand
to have substantial difficulty in putting out of his or her mind previously-expressed
views or findings determined to be erroneous or based on evidence that must be
rejected, (2) whether reassignment is advisable to preserve the appearance of
justice, and (3) whether reassignment would entail waste and duplication out of
proportion to any gain in preserving the appearance of fairness. [People v Walker,
504 Mich 267, 285-286; 934 NW2d 727 (2019) (quotation marks and citation
omitted).]
Applying these factors in this case, we conclude that the circumstances of this case warrant
remand to a different judge. The record indicates that the trial court revisited the issues presented
after remand by this Court and erred as explained previously in this opinion. The trial court could
have difficulty putting aside previously expressed views or findings. Further, preserving the
appearance of justice and fairness outweighs considerations of waste and duplication. See People
v Evans, 156 Mich App 68, 72; 401 NW2d 312 (1986). Our decision to remand to a new judge
neither expresses nor implies “any personal criticism of the trial judge.” See id.4
This authority derives not from the court rules governing recusal and disqualification, i.e.,
MCR 2.003. Instead, this authority is a product of this Court’s power, “in its discretion, and on
the terms it deems just,” to “enter any judgment or order or grant further or different relief as the
case may require” under MCR 7.216(A)(7). Cf. Liteky v United States, 510 US 540, 554; 114 S
Ct 1147; 127 L Ed 2d 474 (1994) (“Federal appellate courts’ ability to assign a case to a different
judge on remand rests not on the recusal statutes alone, but on the appellate courts’ statutory power
to ‘require such further proceedings to be had as may be just under the circumstances,’ 28 USC
§ 2106.”). For purposes of preservation, this means that a request to remand to a new judge, in the
event that there is an error warranting a remand, may be raised in the first instance on appeal. See
United States v Tucker, 78 F3d 1313, 1323-1324 (CA 8, 1996) (concluding that a request for
reassignment in the event of a remand, made for the first time in an appellant’s brief, was a proper
way to raise the issue for the court’s review). In short, defendant properly raised the issue for our
review by raising it in his appellate brief. See id. Even if defendant was required to take some
action in the trial court to preserve this issue, we note that defendant moved several times in the
trial court for the disqualification of the trial judge. See In re Forfeiture of $5300, 178 Mich App
480, 497; 444 NW2d 182 (1989).
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Vacated and remanded to a different judge for further proceedings consistent with this
opinion. We do not retain jurisdiction.
/s/ Michael J. Kelly
/s/ Douglas B. Shapiro
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