People of Michigan v. Kevin Theodore Wilson

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
November 10, 2022
Plaintiff-Appellant,
v No. 358389
Calhoun Circuit Court
KEVIN THEODORE WILSON, LC No. 2020-001489-FH
Defendant-Appellee.
Before: SAWYER, P.J., and MARKEY and SWARTZLE, JJ.
PER CURIAM.
The prosecution appeals as of right the dismissal with prejudice of a possession of child
sexually abusive material charge, MCL 750.145c(4)(a), against defendant. The trial court denied
the prosecution’s motion for a nolle prosequi and motion to remand and dismissed the case with
prejudice. We reverse.
I. FACTUAL BACKGROUND
The facts underlying this appeal are not contested. In June 2020, the prosecution charged
defendant with possession of child sexually abusive material arising from images recovered from
defendant’s personal devices. Defendant waived a preliminary examination. Defendant was
released on bond pending trial.
In July 2021, defendant rejected the prosecution’s plea offer, so a jury trial was scheduled
for August 2021. In advance of trial, the prosecution filed a notice of intent to call several
witnesses, including the lead and secondary detectives who heard defendant’s confession. The
day before trial was scheduled to begin, the prosecution requested an adjournment because two of
its witnesses, the lead and secondary detectives, were going to be unavailable the following week
because of employment training. The trial court concluded that this reason for unavailability was
an insufficient basis for an adjournment and denied the prosecution’s request for an adjournment.
The trial court reasoned that the prosecution can either bring the law enforcement officers back
from training or have the law enforcement officers not attend training because they had a subpoena
for trial.
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The morning of trial, the prosecution informed the trial court that it would not be
proceeding with trial and would be filing a motion for a nolle prosequi. The prosecution decided
to let the law enforcement officers attend training, so it could not proceed, in part, because the law
enforcement officers would not be available for the trial. In the alternative, the prosecution raised
a motion to remand. The trial court pointed out how the prosecution “decided on the eve of trial
that [it] wanted to enhance the charges.”
To begin its ruling, the trial court discussed an unpublished opinion from the Court of
Appeals, which changed how the trial court thought about the prosecution filing a nolle prosequi
on the eve of trial. In discussing the unpublished opinion, the trial court incorrectly stated that it
was a published opinion from this Court. The trial court denied the prosecution’s motion for a
nolle prosequi and motion to remand, and dismissed the case with prejudice. Afterward, the trial
court issued an order that stated “pursuant to [its] decision in this matter” and the unpublished
opinion cited during the trial court’s oral ruling, “this case [is] dismissed WITH prejudice.”
The prosecution now appeals.
II. PRESERVATION OF ISSUE
To properly preserve an issue for appeal, it must be raised before, and addressed and
decided by, the trial court. People v Metamora Water Serv, Inc, 276 Mich App 376, 382; 741
NW2d 61 (2007). The prosecution raised the matter in its motion for a nolle prosequi and its
motion to remand before the trial court. The trial court addressed and denied both the prosecution’s
motion for a nolle prosequi and to remand and dismissed the case with prejudice. The prosecution
has preserved this issue for appeal.
III. STANDARD OF REVIEW
“A trial court abuses its discretion when its decision falls outside the range of reasonable
and principled outcomes.” People v Duncan, 494 Mich 713, 722-723; 835 NW2d 399 (2013). A
trial court necessarily abuses its discretion when it makes an error of law. People v Swain, 288
Mich App 609, 628-629; 794 NW2d 92 (2010). A trial court abuses its discretion when it premises
its decision on a misunderstanding of controlling legal principles or when it fails to exercise
discretion when called on to do so. People v Stafford, 434 Mich 125, 134 n 4; 450 NW2d 559(1990); People v Cress, 250 Mich App 110, 149; 645 NW2d 669 (2002), rev’d on other grounds
468 Mich 678 (2003).
This Court reviews a trial court’s ruling regarding a motion to dismiss, including a motion
for nolle prosequi, for an abuse of discretion. People v Grove, 455 Mich 439, 460; 566 NW2d 547(1997), superseded by court rule on other grounds as stated in People v Franklin, 491 Mich 916;
813 NW2d 285 (2012); People v Adams, 232 Mich App 128, 132; 591 NW2d 44 (1998). This
Court reviews a trial court’s decision regarding a motion to remand to the district court also for an
abuse of discretion. People v Jones, 252 Mich App 1, 4; 650 NW2d 717 (2002).
A trial court possesses the inherent authority to sanction litigants and their counsel;
including the right to dismiss an action. Maldonado v Ford Motor Co, 476 Mich 372, 388; 719
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NW2d 809 (2006). This Court reviews a trial court’s dismissal of a case as an exercise of this
power for an abuse of discretion. Id.IV. ANALYSIS
A. MOTION FOR A NOLLE PROSEQUI
The prosecution states that the separation-of-powers doctrine shields a nolle prosequi
decision from judicial veto unless entering the order would be unconstitutional, illegal, or ultra
vires. The prosecution also states that the trial court made an error of law by believing the
unpublished opinion mandated the denial of the prosecution’s motion for a nolle prosequi.
Between the prosecution not acting in a manner that was unconstitutional, illegal, or ultra vires
and the trial court incorrectly applying legal principles and authority, the prosecution argues the
trial court abused its discretion when it denied the prosecution’s motion for a nolle prosequi. We
agree.
A prosecuting attorney shall not enter a nolle prosequi upon an indictment,
or discontinue or abandon the indictment, without stating on the record the reasons
for the discontinuance or abandonment and without the leave of the court having
jurisdiction to try the offense charged entered in its minutes. [MCL 767.29.]
In regard to the prosecution’s motion to dismiss, the decision is within the prosecution’s
discretion to proceed to trial or to dismiss a case. See People v Morrow, 214 Mich App 158, 165;
542 NW2d 324 (1995). In deciding whether a prosecuting attorney acted properly in proposing to
nolle prosequi, discontinue, or abandon a prosecution, the trial court must review the prosecutor’s
statement of reasons and the evidence filed in the case. Genesee Co Prosecutor v Genesee Circuit
Judge, 391 Mich 115, 121; 215 NW2d 145 (1974). Such a review is a judicial review, searching
the record to determine whether the prosecutor’s decision is in accord with the law, facts, and
reason of the matter. Id. A trial court may not substitute its judgment for that of the prosecuting
attorney as if it were acting in a supervisory capacity. Id.“Unless the prosecution acts in a manner that is unconstitutional, illegal, or ultra vires, the
prosecution’s decision to proceed to trial or dismiss the case is exempt from judicial review
pursuant to the separation of powers doctrine.” Jones, 252 Mich App at 10. A circuit court may
reverse or revise the prosecution’s decisions only if it appears on the record that it has abused the
power confided to it. Genesee Co Prosecutor, 391 Mich at 121.
We are not persuaded that the prosecution abused the power entrusted to it in moving for
a nolle prosequi even if it did so in light of the trial court’s denial of the motion to adjourn trial.
Rather, we find the trial court’s denial of the motion to adjourn the trial to be an abuse of discretion
in this case. First, the reason for the adjournment was eminently reasonable—the need of two
police witnesses to attend training. If recent events have demonstrated anything, it is that proper
police training is a societal good of tremendous value. Any additional police training should be
encouraged, not discouraged or penalized. Second, this is not a case in which there were already
multiple adjournments. We certainly would understand where trial has been adjourned a number
of times and the trial judge finally says “Enough is enough.” But here the trial judge in effect said
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that one adjournment is too much. Once may be enough, but it is certainly not too much where
there is a valid reason for the request.
Further, a nolle prosequi would not have unfairly prejudiced defendant. Had the trial court
simply granted the motion to adjourn, defendant would simply have remained free on bond until
the rescheduled trial. Defendant offers no reason why a short delay in the trial would have
prejudiced his ability to present a defense.
The prosecution further argues that the trial court abused its discretion when denying the
motion for a nolle prosequi because it cited the unpublished opinion, which the trial court
mistakenly believed was a published opinion from this Court. An unpublished opinion is not
binding under the rule of stare of decisis, but when the caselaw is limited, this Court can view
these opinions as persuasive. MCR 7.215(C)(1); People v Green, 260 Mich App 710, 720 n 5;
680 NW2d 477 (2004).
“If a party cites an unpublished opinion, the party shall explain the reason for citing it and
how it is relevant to the issues presented.” MCR 7.215(C)(1). However, if a trial court fails to
exercise its discretion when it has an affirmative obligation to do so, then its abdication to do so
constitutes an abuse of discretion. Stafford, 434 Mich at 134 n 4. For example, a trial court fails
to exercise discretion when it believes something is mandatory because of a mistaken belief about
the law, when, in reality, the decision is discretionary. See People v Green, 205 Mich App 342,
346-347; 205 NW2d 782 (1994).
It is not entirely clear from the record whether the trial court followed the unpublished
opinion because the court found it persuasive or whether it felt obligated to follow the opinion
because of the trial court’s mistaken belief that it was published. Accordingly, even if we were
not persuaded that the trial court abused its discretion in denying the prosecution’s motions, at a
minimum it would be necessary to vacate the trial court’s order and remand the matter to the trial
court for reconsideration in light of the fact that the opinion that it relied upon was unpublished.
B. MOTION TO REMAND
When the trial court denied the prosecution’s motion for a nolle prosequi, the prosecution
argues that the trial court should have then granted its motion to remand. The prosecution neglects
to provide any authority to argue this issue but still argues that the trial court abused its discretion
when it denied the prosecution’s motion to remand. We disagree. The prosecutor’s failure to
provide supporting authority for this argument could be seen as an abandonment of the issue.
People v Matuszak, 263 Mich App 42, 59; 687 NW2d 342 (2004). We will nonetheless address
this issue.
“Jurisdiction of a criminal defendant is acquired by the circuit court upon the filing . . . of
the return of the magistrate before whom [the defendant] had waived preliminary examination, or
before whom the defendant had been examined.” People v Johnson, 427 Mich 98, 107 n 7; 398
NW2d 219 (1986) (quotation marks and citations omitted; alterations by Johnson Court). Once a
circuit court has obtained jurisdiction, it may remand to the district court to enable the prosecution
to present additional evidence. See People v Staffney, 187 Mich App 660, 662; 468 NW2d 238(1991).
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In this case, the trial court denied the prosecution’s motion to remand because of two
reasons: (1) the prosecution had a substantial amount of time to add more charges before bringing
its motion to remand on the eve of trial, and (2) the trial court did not want to give the impression
that defendant was being punished for his decision to not plea, finding that the prosecution’s
motion to remand was raised only after the prosecution brought up the fact that defendant rejected
the prosecution’s plea offer.
The first time the prosecution mentions additional charges is on the day of trial and in the
alternative to its motion for a nolle prosequi. The day after the trial court denied its motion for an
adjournment, the prosecution raised its motion for a nolle prosequi, which, if granted, would
ultimately prevent the trial from continuing, like an adjournment. In the alternative, the
prosecution raised its motion to remand.
When arguing for both motions, the prosecution brought up defendant’s failure to plea.
The prosecution reminded the trial court that “this case was bound over to Circuit Court based on
a plea agreement between the parties and no further charges would be brought if the [d]efendant
would plead as charged for possible time served” but defendant failed to plea. Instead, the trial
court deduced the prosecution wanted “to up the charges now and go back to District Court[,]
punishing [defendant] for not taking the plea agreement.”
While the trial court would be understandably concerned with a situation where a
prosecutor wanted to file additional charges in response to a defendant declining a plea offer, that
is not the case here. It was part of a plea agreement that no additional charges would be filed if
defendant agreed to plead guilty to the charges upon which he was bound over. Because defendant
ultimately did not comply with that plea agreement, the prosecution was free to file any additional
charges that were appropriate.1
V. CONCLUSION
We conclude that the trial court abused its discretion by denying the prosecution’s motion
for a nolle prosequi, denying the prosecution’s motion to remand, and dismissing the case with
prejudice.
Reversed.
/s/ David H. Sawyer
/s/ Jane E. Markey
1
Alternatively, unless there would be an issue of double jeopardy, an issue that is not before us, it
is not clear to us why the prosecution would have needed a motion to remand after the dismissal
rather than merely filing new charges against defendant for the uncharged offenses.
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