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                            MARCH 2010

                  N e ws & Views
                                                          Council Meeting
                                                          March 16, 2010
                                                     Lexington Hotel - Lansing

                                   March’s meeting will be held in the Hemingway Room of Christie’s
  2009-2010 OFFICERS               Bistro, the hotel restaurant. The hotel is located at 925 South
                                   Creyts Road, immediately off I-496. Social hour begins at 6:00
  CHAIR                            p.m., with dinner and the meeting starting at 6:30 p.m.
  Opolla Brown
                                   Only a few meetings remain in the current term:
  Kenneth M. Malkin
  Bay City                                                April 20
  SECRETARY                                               May 18
  Stephen M. Taratuta                                     June 15
  TREASURER                        Please check for date confirmations in future newsletters. Council
  David E. Gilbert                 members will also receive email notices of monthly meetings.
  Elaine M. Spiliopoulos                             5th Spring Conference
  Ann Arbor                                             June 11-12, 2010
                                             Bavarian Inn Lodge – Frankenmuth, MI

                                   Save the date! The biennial golf conference will begin at 10:00 a.m.
                                   on Friday, June 11, and end at noon on Saturday, June 12, 2010. The
                                   conference format allows plenty of time for golfing in the
                                   afternoon and evening on Friday, and in the afternoon on Saturday.
                                   Tee times will be available at The Fortress Golf Course.

                                   State Bar of Michigan Criminal Law Section members will receive
                                   special hotel rates at Bavarian Inn Lodge in Frankenmuth.

                                   The conference is still in the planning stages but more information,
                                   including topics and presenters, will be posted in future newsletters
                                   and sent out to members via email.

                                   For further information about the conference, or for questions,
                                   contact Graham Tealll: (313)549-0249 or gteall@hotmail.com.

                                                                                  Page 1 of 8
                           MARCH 2010

Mid-Winter Ski Conference at Shanty Creek Resort

                                                     Tim Baughman (l), Chief of Research Training &
                                                     Appeals for the Wayne County Prosecutor’s Office,
                                                     answered questions following his review of last
                                                     year’s high-impact court decisions with help from
                                                     Criminal Law Section Council Member M. Jon
                                                     Posner (r).

Timothy McMorrow, Chief Appellate Attorney for
the Kent County Prosecuting Attorney’s Office,
shared his thoughts on discovery in state criminal

                                                     Steve Fishman (l), a private criminal defense
                                                     attorney based in Detroit, and Assistant US
                                                     Attorney Graham Teall (r) discussed the basics of
                                                     federal criminal discovery.

Licensed Private Investigator Patricia E. Hubbard
wrapped up the conference with her presentation
on understanding the role of licensed private
investigators in criminal cases.

                                                                                Page 2 of 8
                                MARCH 2010

                        Can A Conviction Be Set Aside
                When The Conviction Results In License Sanctions?


                                        Michael J. Nichols*

Under MCL 780.621, et seq., a conviction may be set aside (or “expunged”) if it is not a prohibited
offense. The statute, of course, does not establish the right to set aside a conviction but enables a
defendant to petition the court to set aside a conviction once five years passes from the date of
sentencing or the last day of incarceration. Under the statute, the trial court is required to focus on
the circumstances and the behavior post-conviction of the petitioner in deciding whether to expunge
the offense. The nature of the offense has nothing to do with whether to grant the request so long as
it is not a prohibited offense under the statute. People v Boulding, 160 Mich App 156 (1986).

Most criminal sexual conduct (CSC) offenses, specifically those found at 520c-g (including attempts) of
the penal code, are convictions that cannot be expunged. Additionally, a conviction for which the
maximum penalty is life is prohibited from the set aside provision. Finally, a traffic offense is prohibited
from being set aside. The third area of prohibited convictions has been a battleground in the last few
years between the attorney general’s office and the defense bar.

The Attorney General has been filing statements in opposition to petitions to set aside convictions in
some cases in which the conviction resulted in an abstract to the Michigan Secretary of State
(controlled substance offenses and negligent homicide, for example), arguing that the plain meaning of
the motor vehicle code expressly prohibits setting aside convictions that are abstracted. The problem
here is that the expungement statute defines terms like “victim,” “assaultive crime” and “serious
misdemeanor,” but not “traffic offense.” There is some guidance for the definition of traffic offense in
People v Martinez, 211 Mich App 147, 149 (1995) (citing MCL 762.11), where the court adopted the
definition of traffic offense as a violation of the vehicle code.

However, there is a section of the motor vehicle code that has prompted the attorney general’s office
to take a peculiar position on petitions to set aside convictions that are abstracted to the Michigan
Secretary of State, regardless of whether they are found in the vehicle code. The section at issue is
MCL 257.732. It requires that the court maintain and abstract certain convictions to the Secretary of
State. In subsection 22, the statute provides that the court shall not order the expunction of any of the
enumerated offenses in that statute.

MCL 257.732, however, is a records-keeping statute. Further, it directly contradicts MCL 780.621,
which only prohibits the three types of convictions listed above from the set aside rule. Moreover, in
Martinez, the Court of Appeals adopted the definition of “traffic offense” as one that is found under the
motor vehicle code. Finally, in reviewing the statute, it is clear that the legislature is only prohibiting a
court from ordering the SOS from “ordering the expunction” of its records. The statute says nothing
that prohibits the court from ordering the state police from expunging the petitioner’s certified
criminal history.

In Gratiot County, a petitioner sought to set aside a negligent homicide conviction under the penal
code. The trial court overruled the objection of the attorney general that the set aside statute did not

                                                                                       Page 3 of 8
                                 MARCH 2010

prohibit the relief at all. The provision relied on by the attorney general’s office in opposing the
petition, MCL 257.732, was simply a provision that the Secretary of State had to maintain its records
according to law and could not expunge the conviction from the petitioner’s master driving record.

Keep in mind that the set aside statute requires the court to examine the “circumstances” and
“behavior of the defendant” post-conviction in making its decision so long as the conviction is one that
qualifies under the statute. One final practice tip: a citizen can petition for an expungement as many
times as he or she wants, there is no bar in the statute from following the old axiom: “if at first you
don’t succeed, try, try again.”

*Michael J. Nichols is co-chair of the Ingham County Bar Association Criminal Law Section. He is the
author of the Michigan OWI Handbook published by Thomson West. Mr. Nichols is a member of the
National College of DUI Defense, the National Association of Criminal Defense Lawyers, the Criminal
Defense Attorneys of Michigan and the State Bar of Michigan Criminal Law Section. He can be reached
at mnichols@nicholslaw.net or 517.432.9000.

Michigan Public Defense Update
Editor’s Note: The Criminal Law Section has long advocated for reform of our system for appointing counsel to
indigent defendants. The Michigan Campaign for Justice provided us with the following information:

Wrongful Imprisonment: A Forum to Raise Awareness & Take Action
Join the Michigan Campaign for Justice, Just Justice, Cooley Law School Innocence Project, Birmingham
Unitarian Church Social Justice Committee, Michigan Unitarian Universalist Social Justice Network, and
MOSES for the forum on Monday, March 21, 2:00-4:00 p.m. Donna McKneelen, Director of the Cooley
Law School Innocence Project, will discuss what she and her colleagues are doing to address the
problem and what other states are doing. Ken Wyniemko, a prisoner released with help from the
Innocence Project, will participate in the forum. Learn about legislation - HB4790 and HB4791 -
introduced to compensate individuals proven to be wrongly imprisoned. Find out what you can do
about the problem, and how to help restore some justice for the wrongly imprisoned in Michigan. The
forum will be held at Birmingham Unitarian Church, 38651 Woodward Avenue, Bloomfield Hills, MI
48304. The event is free of charge, but donations are gratefully accepted. For more information,
contact Just Justice: (586)553-4790.

Recent Amendments to Court Rules
The following amendments were recently adopted by the Michigan Supreme Court:
Rules 6.425 and 6.610
The amendments increase the time within which a court is required to provide copies of the pre-
sentence report to the prosecutor, defense counsel, or the unrepresented defendant, to at least two
business days before the day of sentencing. If the report is not made available at least two days before
sentencing, the prosecutor or defense attorney, or the unrepresented defendant, is entitled to an
adjournment to prepare any necessary corrections, additions, or deletions to present to the court. The
revisions of these rules also prohibit the inclusion of specific information in the report about the victim
or witness, and require that the court instruct those who review the report that they are precluded
from making a copy of the report and must return their copy to the court before or at the defendant’s
sentencing. The confidentiality provision is based on MCL 791.229. Effective May 1, 2010.

                                                                                       Page 4 of 8
                              MARCH 2010

United States Supreme Court - Cert Granted
Abbott v United States, No. 09-479* (January 25, 2010): Review was granted to determine
whether the term “any other provision of law” of 18 USC 924(c) includes the underlying drug
trafficking offense or crime of violence and, if not, whether it includes another offense for possessing
the same firearm in the same transaction.

Gould v United States, No. 09-7073* (January 25, 2010): Review was granted to determine
whether a mandatory minimum sentence provided by 18 USC 924(c)(I)(A) applies to a count when
another count already carries a greater mandatory minimum sentence.

*The cases were consolidated for oral argument.

United States Supreme Court - Opinions
Wood v Allen, No. 08-9156 (January 20, 2010): Petitioner Holly Wood broke into the home of his
ex-girlfriend and fatally shot her in the head and face. He was charged with capital murder during a
first-degree burglary, and was appointed counsel. Two of his court-appointed attorneys had significant
trial experience, but the third had only been admitted to the bar five months when he was appointed.
Following a jury trial, the petitioner was convicted of capital murder and sentenced to death. His direct
appeal to the state court of appeals and supreme court were unsuccessful. He sought state post-
conviction relief arguing, among other things, that he was mentally retarded and not eligible for the
death penalty. He also argued that his trial attorneys were ineffective because they failed to investigate
and present evidence of his mental deficiencies during the penalty phase. Following several evidentiary
hearings, the court denied the claims, finding that the petitioner had not shown he was mentally
impaired. It also concluded that the petitioner had not established that his counsel’s performance was
deficient or that any deficiency prejudiced his defense. It made a factual finding that counsel had made
a strategic decision not to present evidence of the alleged mental-deficiency. The appellate court
affirmed. Petitioner then sought federal habeas relief under §2254. The court rejected all but his
ineffective-assistance-of-counsel claim, concluding that the state court’s finding that counsel made a
strategic decision was an unreasonable determination of the facts. The court further held that counsel’s
performance was deficient and had prejudiced the petitioner, and that the state court’s contrary
holdings were an unreasonable application of federal law under Strickland v Washington, 466
US 668 (1984). The United States Court of Appeals for the Eleventh Circuit, in a divided opinion,
reversed. It held that the state court’s rejection of the ineffective assistance claim was neither an
unreasonable application of clearly established law nor based on an unreasonable determination of the
facts. The United States Supreme Court affirmed in an opinion authored by Justice Sotomayor. It held
that the state court’s conclusion that counsel made a strategic decision not to pursue or present
evidence of his mental deficiencies was not an unreasonable determination of the facts in light of the
evidence presented in the state-court proceedings. Justice Stevens filed a dissenting opinion, which was
joined by Justice Kennedy.

United States Supreme Court - Summary Orders
Presley v Georgia, No. 09-5270 (January 19, 2010): Petitioner Eric Presley was convicted of a
cocaine trafficking offense following a jury trial in DeKalb County, Georgia. Before jury selection
began, the trial court noticed a lone courtroom observer, and instructed the man to leave the

                                                                                    Page 5 of 8
                               MARCH 2010

courthouse because prospective jurors were about to enter. Upon questioning the man, the court
learned he was the petitioner’s uncle. The petitioner’s trial attorney objected to the exclusion of the
public from the courtroom, but the court explained there was not enough room for everyone to sit in
the audience. Following his conviction, Petitioner unsuccessfully moved for a new trial on the basis that
the public was excluded from voir dire. The appeals court held there was no abuse of discretion. The
Supreme Court of Georgia affirmed, with two justices dissenting, finding that trial courts need not
consider alternatives to closure absent an opposing party’s proffer of some alternatives. The United
States Supreme Court, in a per curiam summary order, disagreed. It held that the right to a public trial
in criminal cases extends to jury selection and, in particular, voir dire of potential jurors. The majority
reaffirmed that trial courts are required to consider alternatives to closure even when they are not
offered by the parties because the public has a right to be present whether or not any party has
asserted the right.     Indeed, trial courts are obligated to take every reasonable measure to
accommodate public attendance at criminal trials. Accordingly, the judgment was reversed and the
cause remanded. Justice Thomas dissented, joined by Justice Scalia.

Wellons v Hall, No. 09-5731 (January 19, 2010): Petitioner Marcus Wellons was convicted of rape
and murder, and was subsequently sentenced to death. Following the trial, defense counsel learned that
the jury and judge had engaged in unreported ex parte communications, the jurors and a bailiff planned
a reunion, and some jurors gave the trial judge and the bailiff inappropriately-shaped chocolates.
Petitioner raised the issues on direct appeal but, due to the undeveloped record, was denied relief by
the Georgia Supreme Court. He sought state habeas relief, but the court held that the matter had
already been decided on appeal. His federal habeas petition, seeking discovery and an evidentiary
hearing, was similarly found to be procedurally barred. The United States Court of Appeals for the
Eleventh Circuit affirmed. The United States Supreme Court, in a per curiam summary order, found the
appeals court’s decision to be in error. The lower court never considered, on the merits, whether the
petitioner’s allegations and the undisputed facts warranted discovery and an evidentiary hearing.
Accordingly, the judgment was vacated, and the cause remanded for further consideration in light of
Cone v Bell, No. 07-1114 (April 28, 2009) (holding that federal habeas review is not barred when a
state court declines to review the merits of a petitioner’s claim on the ground that it has done so
already). Justice Scalia dissented, joined by Justice Thomas. Justice Alito separately dissented, joined by
Chief Justice Roberts.

Recent State Cases
People v Dimoski, No. 286876 (Mich App; December 17, 2009): Defendant Slobodan Bobby
Dimoski was charged with fraudulent use of a building contract fund and larceny by conversion of
property valued at or more than $20,000. He ultimately pled guilty to fraudulent use of a building
contract fund, and was ordered to pay restitution to the complaining witness in the amount of
$120,000. The complainant later obtained a civil judgment against the defendant, based on the same
conduct, in the amount of $104,224.31. The defendant successfully moved to reduce the restitution by
the amount of the civil judgment, arguing that failure to reduce the restitution order would result in a
windfall for the complainant. The Michigan Court of Appeals disagreed, holding that criminal restitution
should not be reduced by the amount of an outstanding civil judgment. In reversing the trial court’s
decision, it noted that the complaining witness had not received a double recovery because she had not
collected on the civil judgment. Instead, she merely increased the potential that the defendant would
have to pay for his wrongdoing. Thus, the trial court could not modify the restitution order until the
defendant satisfied the judgment.

                                                                                     Page 6 of 8
                               MARCH 2010

People v Dowdy, No. 287689 (Mich App; February 2, 2010): Defendant Randall Lee Dowdy was
convicted of several counts of first-degree criminal sexual conduct and was required to comply with
the Sex Offenders Registration Act (SORA). The trial court dismissed charges for failure to comply
with the reporting requirements because he was homeless. The Michigan Court of Appeals, on remand
from the Michigan Supreme Court, affirmed in a published per curiam opinion. The court first noted
that the law provides for registering and reporting by individuals convicted of specified crimes where
those individuals have either a domicile or residence. The word “domicile” is “a person’s true, fixed,
principal, and permanent home, to which that person intends to return and remain even though
currently residing elsewhere.” Even though “domicile” and “residence” are often used interchangeably,
in general and under the Act, “residence” does not include the intent to make a residence a permanent
home. Thus, a person may have many residences but only one domicile. The issue on appeal focused on
whether the defendant has a residence for purposes of SORA. Under the plain language of the Act, the
term “residence” refers to a place, dwelling, or abode, where an individual has a “regular place of
lodging.” The Court of Appeals explained that the “provisional location where a homeless person
happens to spend the night does not fall within the ambit of these definitions.” Though it acknowledged
the legislature’s intent to provide for public safety by requiring the location of convicted sex offenders,
the court concluded that it is solely within the province of the legislature to require compliance by a
homeless person by including a provision regarding reporting requirements for the homeless.

People v Gipson, No. 287324 (Mich App; January 28, 2010): Defendant Ted Floyd Gipson was
charged with multiple felonies for the beating death of his drug supplier. Following a jury trial, he was
convicted of first-degree felony murder and armed robbery. On appeal, the defendant argued that the
trial court improperly admitted both evidence of a tattoo he obtained shortly after the victim’s death
and statements he made to the police during a custodial interrogation. The tattoo, which the defendant
sought to exclude on the basis that it was irrelevant and unfairly prejudicial, depicted a chalk outline of
a dead body underneath the words “Murder 1.” The defendant also argued that he did not voluntarily,
knowingly, and intelligently waive his constitutional right against self-incrimination because he was under
the influence of drugs and alcohol and because the police coerced him with threats against his mother.
The Michigan Court of Appeals, in a published opinion, affirmed. It held that the tattoo evidence was
relevant to the issues of the defendant’s intent and culpability in the victim’s death, and because the
defendant was allowed to offer alternative explanations for the tattoo and because the prosecution
submitted significant other evidence of guilt without unduly focusing on the tattoo, the probative value
was substantially outweighed by any danger of unfair prejudice. It further held that, under the totality
of the circumstances, the trial court did not err in finding that the defendant’s statements were
voluntarily, knowingly and intelligently made. The trial court’s finding that the officers -- who both
denied threatening the defendant’s mother and who both denied that the defendant appeared to be
under the influence -- were credible was entitled to great deference. Accordingly, the judgment was

People v McCauley, No. 281197 (Mich App; January 19, 2010): Following a jury trial, Defendant
Dedrick Lavonz McCauley was convicted of first-degree felony murder, second-degree murder, three
counts of assault with intent to commit murder, and possession of a firearm during the commission of a
felony. The defendant rejected a proposed plea agreement because he insisted that he did not shoot
the victim. However, his attorney did not advise him that he still could be convicted of murder under
the theory of aiding and abetting. During a post-trial hearing, the defendant testified that he would not
have rejected the plea offer had he known he could have been convicted even if he had not fired the
fatal shot. The trial court found that counsel had rendered ineffective assistance. The Michigan Court
of Appeals, in a published opinion, agreed. It determined that the appropriate remedy was to

                                                                                     Page 7 of 8
conditionally vacate the convictions and allow the prosecutor to reinstate the original plea offer, or
overcome a presumption of vindictiveness if a less-favorable plea was offered. If the prosecution met
its burden, the parties could negotiate a new plea. If the prosecution did not, and refused to reinstate
its original plea offer, the defendant’s convictions would be vacated in full. If the defendant refused to
accept the original plea offer, the convictions would be reinstated.

People v Perrault, No. 288540 (Mich App; January 19, 2010): Defendant Michael James Perrault was
convicted of possession with intent to deliver marijuana. On direct appeal, he alleged that the trial
court erred in refusing to suppress evidence obtained by a warrantless search of his vehicle. A tip line
received an anonymous tip about drug trafficking at a high school. The tipster stated that he had been
friends with the drug dealer, but had given up drugs and now wished to report his former friend and
other major drug dealers, one of whom was the defendant. The tipster gave detailed information about
his former friend, but the defendant was simply described as a male caucasian junior who sells
marijuana from school, his vehicle and a local park. The tip line turned the information over to local
police, who forwarded it to the assistant principal. The school liaison officer never corroborated the
tip, and later testified that he had no information about the defendant or his involvement with drugs
other than the anonymous tip. More than a week after receiving the anonymous tip, the defendant’s
vehicle was searched without his consent, though he was present during the search. Marijuana was
found, and the defendant was arrested. He moved to suppress the evidence, but the trial court denied
the motion, finding that the anonymous tip alone was sufficient to constitute reasonable suspicion given
the level of detail. The Michigan Court of Appeals disagreed. It found that the tip alone did not provide
a sufficient basis to form the necessary reasonable suspicion for the search of the defendant’s vehicle,
and the search was based on nothing more than the tip. Accordingly, the cause was reversed and

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