St. Joseph Michigan Criminal Defense Blog

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Family Law Attorney in Cass County

Michigan Supreme Court to Clarify Issues Regarding Motions to Change Schools

Family Law Attorney in Cass County
After years of ambiguity, the Michigan Supreme Court is poised to hear multiple cases that may offer clarity on several issues when parents are unable to agree on changes to a child’s school district. If you or someone you know is contemplating a move that would require changing a minor child’s school district, Contact the Peter J. Johnson Law Office, PLLC, a leading family law attorney in Cass County.

In situations where two parties share legal custody of a minor child, a move by one party to a new location often means that he or she will have to file a motion to change the minor child’s school district. Sometimes, this places the trial court in a difficult position because the judge must determine whether the move will adversely affect what’s known as the “established custodial environment,” and must also evaluate whether the move will be in the child’s best interests. Both of these determinations are fact-intensive and losing parties frequently file appeals to contest the court’s ruling.

However, at present, there is no guarantee that the Michigan Court of Appeals will hear such an appeal. Under Michigan law, the Michigan Court of Appeals is a court of limited jurisdiction, meaning that it can only preside over certain cases in certain circumstances. The most common types of acceptable are called “appeals by right”. Appeals by right are usually rooted in either a law or a court rule that authorizes the party to appeal a certain kind of decision. However, in family law cases, there are very few accepted grounds for appeals by right, and accordingly, the Michigan Court of Appeals frequently dismisses appeals for lack of jurisdiction.

The lack of an appeal by right for motions to change school districts has recently been the focus of several court cases. In Ozimek, the parties, who were never married, shared legal and physical custody of their child. After a year under this arrangement, the Plaintiff sought to move to another town, and filed a motion to change her son’s school from one in Allen Park to one in Livonia. Even after mediation, the parties could not agree on the change to the new school, and the trial court, after holding evidentiary hearings, ultimately denied the motion, finding that the move would adversely affect the Defendant’s ability to exercise parenting time.

Before the Michigan Court of Appeals could review the denial of the motion, it was required to first determine whether it could even hear the appeal, and ultimately, it determined that it did not have jurisdiction. In justifying its decision, the Michigan Court of Appeals noted that Michigan court rules had been changed in 1994 in order to decrease the backlog of appeals. While the revised court rule still empowered the Michigan Court of Appeals to hear appeals regarding post-judgment orders affecting the custody of a minor child, the court interpreted this exception narrowly because of the restrictive language of the 1994 revisions. Although it acknowledged that school decisions are a significant component of legal custody (the rights of parents to be involved in important decisions in their child’s life), the word custody in the rule in question was traditionally interpreted only to apply to physical custody (how time with the child is divided between the parents).

However, later in its opinion, the Michigan Court of Appeals also acknowledged that in another Michigan Court of Appeals case issued only four months earlier, it had arrived at the exact opposite conclusion when it found that legal custody was included within the rule. Given this ambiguity, the Michigan Court of Appeals also made the unusual move of explicitly urging the Michigan Supreme Court to “weigh in on the issue,” and asking supporters of an expanded rule to focus their efforts on the Michigan Supreme Court as well.

Recently, the Michigan Supreme Court has taken this advice to heart. In February, it agreed to preside over the appeal on Ozimek and in another substantially similar case, and it has requested that the parties make oral arguments on the topic of whether a motion to change schools can be considered a post-judgment order affecting the custody of a minor child. However the Michigan Supreme Court rules, there will likely be significant policy ramifications. For decades, the unwillingness of the Michigan Court of Appeals to hear appeals on this topic has frustrated parents because it limits the recourse they can seek from an adverse ruling. For its part, the Michigan Court of Appeals seems to prefer the status quo. In the Ozimek opinion, it stated that such a bottleneck is necessary in order for it to avoid being deluged by a large number of domestic cases spanning a diverse array of issues.

Family law in Michigan is a constantly evolving landscape. One of the most important decisions that you can make to ensure you prevail in a family law dispute is hiring a lawyer who is up to date on recent, critical developments in his area of practice. If you or someone you know is involved in a family law dispute, contact the Peter J. Johnson Law Office, PLLC, a leading family law attorney in Cass County today at 269.982.1100 or visit www.AttorneyPeterJohnson.com for further information.

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drug crime

Prosecution Must Show Intent to Deliver Drugs Within a School Zone

drug crime
According to a recent opinion issued by the Michigan Court of Appeals, a defendant cannot receive enhanced sentencing for delivering drugs in a school zone unless the prosecution establishes that he or she actually intended to deliver drugs within the school zone itself. If you or someone you know has been charged with a drug crime, contact Peter J. Johnson Law Office, PLLC, a leading criminal attorney in Berrien County at 269.982.1100 or visit http://www.AttorneyPeterJohnson.com.

Enhanced Penalties for Delivering Drugs in a School Zone

Under Michigan law, criminals who deliver drugs within 1,000 feet of school property are subject to significantly harsher sentences. Specifically, such a conviction will result in a minimum sentence of two years in prison, and the judge has discretion to sentence the offender to a maximum sentence of up to three times longer than the normal maximum.

Phrasing of the Statute Requires Intent

However, the phrasing of the Michigan school zone statute is unclear as to what exactly must be shown: Does the prosecution have to establish that a defendant actually intends to deliver drugs within the school zone or is the mere fact that a defendant possesses drugs and drug dealing paraphernalia within the zone sufficient for these penalties? This ambiguity was at issue in People v. English, a recent Michigan Court of Appeals case. In that case, the police raided the defendant’s home and discovered a significant amount of drugs and drug dealing paraphernalia. Because the defendant’s home was located within 1,000 feet of a school, the prosecution sought enhanced penalties for delivering drugs within a school zone. However, the defendant argued the language of the school zone statute required the prosecution to demonstrate that he actually intended to deliver the seized drugs within the school zone, a burden that the prosecution clearly had not met.

In its holding, the Michigan Court of Appeals found that the defendant’s interpretation made the most grammatical sense given the phrasing of the statute. Although the prosecution argued that such an interpretation was not intended by the Michigan legislature, the Michigan Court of Appeals found no such violation. And because the prosecution failed to establish the defendant’s intent to deliver the drugs within a school zone, a conviction could not be sustained.

Having an attorney who understands recent legal developments and their implications for your case can be the difference between an acquittal and a conviction. If you or someone you know has been charged with a drug crime, contacted Peter J. Johnson Law Office, PLLC, a leading criminal attorney in Berrien County at 269.982.1100 or visit http://www.AttorneyPeterJohnson.com.

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crime of larceny

Homeowner’s Removal of Fixtures from Foreclosed House During Redemption Period Was Not a Crime

crime of larceny
In a recent decision, the Michigan Supreme Court found that a homeowner cannot be charged with larceny for the removal of fixtures from his foreclosed home. If you or someone close to you has been charged with the crime of larceny, contact Peter J. Johnson Law Office, PLLC, a leading criminal attorney in Cass County.

Facts of the Case

In the 2016 case of People v. March, the defendant’s father had given his son power of attorney in order to manage his affairs after he moved into an assisted living facility. However, the defendant fell behind on his father’s mortgage payments, and eventually the lender foreclosed on the home, which was then sold to a new owner at a sheriff’s sale. However, the sale also triggered Michigan’s redemption period, which gave the defendant and his father 6 months to redeem the house by paying the balance of the mortgage.

Ultimately, the defendant and his father did not redeem the house during this period. However, when the new owner took possession of the house, he noticed that several important fixtures, such as sinks, cabinets, and air conditioners were not in the house, and the police later determined that the defendant had removed these items during the redemption period. The defendant was arrested and charged with larceny for the theft of the fixtures.

What Is “the Property of Another”?

At trial, the defendant successfully argued that he could not be convicted of larceny, because that property required the perpetrator to take “the property of another,” and the court found that the defendant still retained ownership of the home and its fixtures during the redemption period. Although the trial court dismissed the larceny charge, the Michigan Court of Appeals later reversed this decision, finding that the new owner of the house was also the “owner” of the fixtures because his consent was necessary before the property could be taken.

The case was appealed to the Michigan Supreme Court, which ultimately ruled in favor of the defendant. In its decision, the Michigan Supreme Court noted that there was no Michigan statute that explicitly defined what larceny was, and therefore, the crime could only be defined by using the common law, the principles established from previous cases and judicial customs. Under this reasoning, a person was only guilty of larceny if he or she took the “property of another.” In defining this phrase, the Michigan Supreme Court applied common law principles and held that for something to be the “property of another,” someone other than the defendant must hold the right to “possess the property to the exclusion of the defendant at the time of the taking.” Because the defendant still retained ownership of the fixtures during the redemption period, the new owner did not have exclusive control over them, and thus, the defendant could not be found guilty of larceny for their removal.

If you or someone you know has been charged with larceny, it is important to retain an experienced attorney who understands the nuances of the offense and who can help you raise the defense that could make the difference between a conviction and acquittal. For more information, contact the Peter J. Johnson Law Office, PLLC, a leading criminal attorney in Cass County at 269.982.1100 or visit http://www.AttorneyPeterJohnson.com.

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Armed Robbery

Defendant With “Bulging Pockets” Guilty of Armed Robbery

Armed Robbery

In a new case, the Michigan Court of Appeals found that there was sufficient evidence to convict a Defendant of Armed Robbery, even though he did not actually have a weapon or even claim to have one. If you or someone you know has been charged with the crime of Armed Robbery, contact Peter J. Johnson Law Office, PLLC, a leading criminal defense attorney in Van Buren County.

Facts of the Case

In People v. Henry, the Defendant was accused of walking into a Halo Burger restaurant and demanding that employees give him all of the money in the till. Although the employee who handed over the money admitted that the Defendant never claimed to have a weapon, she said that she complied with his demand because the pockets of his hoodie were “bulging forward,” his hands were inside them, and she “wasn’t taking any chances.”

At trial, the main point of contention was the language of the Michigan Armed Robbery statute. This statute essentially defined Armed Robbery as being Robbery (i.e. theft through the threat or use of force) where the perpetrator either (1) actually possesses a dangerous weapon, or (2) engages in conduct that would lead that would lead someone to reasonably believe that something that they have is a dangerous weapon, or (3) represents, either orally or otherwise, that they have a dangerous weapon. Based on this definition, the Defendant tried to argue that the statute required that the victim’s belief that the perpetrator had a dangerous weapon must be reasonable. Under this logic, the Defendant could not have been found guilty, because the victim’s belief that he had a weapon was not reasonable.

Changes to Michigan Armed Robbery Law

The Michigan Court of Appeals was not persuaded by this argument. In its opinion, it held that the language of the statute does not require that the victim have a reasonable belief that the perpetrator actually possesses a dangerous weapon in all circumstances. The Court of Appeals noted that in 2004, the Armed Robbery statute was amended in response to a series of cases where the Defendant was acquitted because the victim’s belief that the perpetrator had a dangerous weapon was not reasonable. The amended version of the statute allowed convictions where the perpetrator makes a representation “either orally or otherwise” that he or she has such a weapon.

Turning to the facts of the case, the Court of Appeals noted that while the Defendant’s hands were in his pockets, they were “bulging forward,” and that this conduct led the Halo Burger employees, reasonably or unreasonably, to believe that he might have a weapon. For the Court of Appeals, this meant that the Defendant’s conduct qualified as a representation that he had a dangerous weapon, which fell within the class of non-verbal representations contemplated by the phrase “or otherwise” within the statute.

Having an experienced lawyer on your side can make a critical difference in prevailing in a criminal trial or in negotiating for a plea deal with the prosecution. If you or someone you know has been charged with Armed Robbery, contact the Peter J. Johnson Law Office, PLLC, a leading criminal defense attorney in Van Buren County at 269.982.1100 or visit www.AttorneyPeterJohnson.com.

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Home Invasion in Michigan

Breaking Into a Room Within a Home is Not Home Invasion

Home Invasion in Michigan

A new opinion from the Michigan Court of Appeals has clarified the parameters of what constitutes a “dwelling” for the purposes of the charge of Home Invasion in Michigan. If you or someone you know has been charged with the crime of Home Invasion, contact Peter J. Johnson Law Office, PLLC, a leading criminal defense attorney in Berrien County.

Home Invasion in Michigan

In 1994, Michigan passed legislation that transformed the common law crime of Burglary (also known as “breaking and entering”) into the offense of Home Invasion, which was further subdivided into Home Invasion in the First, Second, and Third Degrees. The difference between the degrees of Home Invasion depends on the circumstances that exist during the commission of the offense.

For example, both First and Second Degree Home Invasion requires that the Defendant either intended to commit an assault, a larceny, or a felony within the dwelling, or that the Defendant committed one of those crimes while entering, present within, or leaving the dwelling. However, for First Degree Home Invasion to exist, one of two additional circumstances must also exist; either the Defendant must have been armed with a dangerous weapon, or another person must have been lawfully present within the dwelling during the offense. In contrast, for Third Degree Home Invasion, all that is required is that, at the time the Defendant entered, he or she must have either intended to commit a misdemeanor within the dwelling, or that he or she committed a misdemeanor while entering, present within, or leaving the dwelling.

Is a Room Within the Home a “Dwelling”?

In People v. Bush, the Defendant was accused of First Degree Home Invasion. Although he had received lawful permission to enter into the home, the Defendant later forced his way into a room within that home in order to assault one of the residents who had locked him out. At trial, the issue was whether the Home Invasion statute’s definition of a “dwelling” also covered each of the individual rooms within a home, and the trial court ultimately sided with the prosecution in finding that it did.

However, the Michigan Court of Appeals overruled this decision. In doing so, it noted that Michigan law defined a “dwelling” to mean “a structure or shelter that is used permanently or temporarily as a place of abode.” Because Michigan law did not also define the words “structure,” “shelter,” or “abode,” the Court of Appeals consulted the dictionary definitions for these terms, and it found that these terms all referred to the entirety of a structure, rather than to individual rooms within the structure. And because the Court of Appeals did not see any indication in the language of the statute that the Legislature intended for individual rooms to be covered, it found that such rooms should not be included.

If you or someone you know has been charged with Home Invasion in any degree, retaining an experienced attorney who understands the nuances of the offense can be the difference between an acquittal and a conviction. For further information, contact Peter J. Johnson Law Office, PLLC, a leading criminal defense attorney in Berrien County, at 269.982.1100 or visit www.AttorneyPeterJohnson.com.

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