Friday, August 18, 2017

Armed Robbery, Using a Computer to Commit a Crime and the Habitual Offender

This post examines a recent decision from the Court of Appeals of Michigan: People v. Washington, 2017 WL 3397494 (2017) (per curiam). The court begins the opinion, as courts usually do, by explaining how and why the prosecution arose:
Defendant, Martell Washington, was convicted by a jury of armed robbery, Michigan Compiled Laws 750.529, assault with intent to do great bodily harm less than murder, Michigan Compiled Laws 750.84, assault by strangulation, Michigan Compiled Laws 750.84(1)(b), using a computer to commit a crime, Michigan Compiled Laws 752l796, unauthorized use of a financial transaction device, Michigan Compiled Laws 750.157n(1), felon in possession of a firearm, Michigan Compiled Laws 750.224f, and second-offense possession of a firearm during the commission of a felony, Michigan Compiled Laws 750.227b and was sentenced as a fourth-offense habitual offender, Michigan Compiled Laws 769.12,  to concurrent prison terms of 37 to 70 years for the robbery, assault, and using-a-computer-to-commit-a-crime convictions and 10 to 15 years for the unauthorized-use-of-a-financial-device and felon-in-possessions convictions as well as a consecutive prison term of 5 years for the felony-firearm conviction. We affirm.
People v. Washington, supra.
The court goes on to explain that
[o]n appeal, defendant first argues that there was insufficient evidence to support the felon-in-possession, Michigan Compiled Laws 750.224f, and felony-firearm, Michigan Compiled Laws 750.227b, convictions. We disagree. This Court reviews a defendant's challenge to the sufficiency of the evidence de novo. People v. Bailey, 310 Mich. App. 703, 713; 873 N.W.2d 855 (2015). When determining whether the prosecution presented sufficient evidence to support a conviction, we view the evidence in a light most favorable to the prosecution to decide whether a rational trier of fact could have found that the essential elements of the crime or crimes at issue were proved beyond a reasonable doubt. People v. Reese, 491 Mich. 127, 139; 815 N.W.2d 85 (2012). Circumstantial evidence, as well as any reasonable inferences that may be drawn therefrom, can constitute sufficient proof of the essential elements of a crime. People v. Brantley, 296 Mich. App. 546, 550; 823 N.W.2d 290 (2012). When reviewing a defendant's challenge to the sufficiency of the evidence, we are required to draw all reasonable inferences and make all credibility determinations in support of the jury's verdict. People v. Nowack, 462 Mich. 392, 400; 614 N.W.2d 78 (2000).
People v. Washington, supra.
The Court of Appeals then explains that in
order to find a defendant guilty of felon-in-possession, a jury must find that he or she possessed a firearm and had been previously convicted of a felony. Michigan Compiled Laws 750.224f; see also People v. Perkins, 262 Mich. App. 267, 270–271; 686 N.W.2d 237 (2004), abrogated in part on other grounds by People v. Smith–Anthony, 494 Mich. 669; 837 N.W.2d 415 (2013). In order to find a defendant guilty of felony-firearm, a jury must find that he or she possessed a firearm during the commission or attempted commission of a felony. Michigan Compiled Laws 750.227b; see also People v. Avant, 235 Mich. App. 499, 505; 597 N.W.2d 864 (1999).
People v. Washington, supra.
The court goes on to explain that
[o]n appeal, defendant does not argue that the prosecution presented legally insufficient evidence to support a conclusion that he had been previously been convicted of a felony or that he participated in the commission of a felony at the relevant time in this case. Instead, he only argues that the prosecution presented legally insufficient evidence to support a conclusion that he possessed a firearm during the commission of the crimes at issue in this case. The term `firearm’ is statutorily defined as follows: `”Firearm” means any weapon which will, is designed to, or may readily be converted to expel a projectile by action of an explosive. Michigan Compiled Laws 750.222(e).

In this case, the prosecution's case relied largely on the testimony of the victim. The victim testified, in relevant part, that defendant threatened him with `[a] silver gun.’ When subsequently asked whether the gun was `a handgun,’ the victim answered affirmatively. This testimony, when viewed in a light most favorable to the prosecution, Reese, 491 Mich. at 139, drawing all reasonable inferences and making all credibility determinations in support of the jury's verdicts, Nowack, 462 Mich. at 400, constitutes legally sufficient evidence to support the jury's guilty verdicts on the felon-in-possession and felony-firearm charges.

Defendant claims on appeal that `there was no evidence from which a jury could reasonably infer that [defendant] possessed a firearm[,]’ but, in our view, the victim's testimony is precisely that. Defendant also claims on appeal that reversal is required because the prosecution did not disprove that the `silver gun’ was not a `handgun designed or manufactured exclusively for propelling by a spring, or by gas or air, BB's not exceeding .117 caliber.’ See People v. Peals, 476 Mich. 636, 640; 720 N.W.2d 196 (2006). However, his position in this regard relies on a previous version of the statutory definition of the term `firearm.’ The current version, which is quoted above, was effective as of July 1, 2015, see 2015 PA 26, and the crimes at issue in this case were committed on July 3, 2015.

Accordingly, we conclude that the prosecution presented sufficient evidence to support the felon-in-possession and felony-firearm convictions.
People v. Washington, supra.
The Court of Appeals then took up an issue relating to the using a computer to commit a crime offense with which Washington was charged and of which the jury found him guilty. People v. Washington, supra. It began by explaining that
[o]n appeal, defendant also argues that the trial court's 37–to–70-year prison sentence for his using-a-computer-to-commit-a-crime conviction, Michigan Compiled Laws 752.796, must be vacated because Michigan Compiled Laws 752.797(3)(d) only allows for a prison term of not more than 7 years under the facts and circumstances of this case. We disagree.

Michigan Compiled Laws 752.prohibits a person from using a `computer program, computer, computer system, or computer network to commit, attempt to commit, conspire to commit, or solicit another person to commit a crime.’ The penalty for violating Michigan Compiled Laws 752.796 is determined based on the maximum sentence for the crime that was committed using the computer, which, in this case, was the unauthorized use of a financial transaction device, Michigan Compiled Laws 750.157n(1). Because Michigan Compiled Laws 750.157n(1) does not set forth a penalty for a violation of its provisions, the applicable prison term is required to be not more than 4 years. See Michigan Compiled Laws 750.503. Consequently, because a 4–year prison term falls between 4 and 10 years, Michigan Compiled Laws 752.797(3)(d) provides that the maximum sentence for a violation of Michigan Compiled Laws 752.796 premised on a violation of Michigan Compiled Laws 750.157n(1) would, ordinarily, be 7 years.
People v. Washington, supra.
The Court of Appeals goes on to explain that
[h]owever, that is not the case here. On appeal, defendant fails to acknowledge that he was sentenced as a fourth-offense habitual offender. See Michigan Compiled Laws 769.12. Consequently, pursuant to Michigan Compiled Laws 769.12(1)(b), the trial court was permitted to sentence defendant, a fourth-offense habitual offender, to a prison term of up to life. While Michigan Compiled Laws 769.12(3) limits a court's authority to impose a sentence such as this in some circumstances, it does not appear that any of those circumstances are present here. Indeed, as indicated above, defendant does not even acknowledge his status as a fourth-offense habitual offender when making this argument on appeal. Furthermore, had the Legislature intended to prohibit the application of the habitual-offender enhancements to circumstances involving Michigan Compiled Laws 750.157n, Michigan Compiled Laws 752.796, or Michigan Compiled Laws 752.797, it certainly could have expressed such an intent. But, it did not. See People v. Allen, 499 Mich. 307, 317–318; 884 N.W.2d 548 (2016). Accordingly, we conclude that defendant is not entitled to resentencing with respect to his using-a-computer-to-commit-a-crime conviction.
People v. Washington, supra.
The Court of Appeals then took up an issue that is, honestly, new to me. The court explains that
Defendant's last argument on appeal challenges the trial court's scoring of offense variable (OV) 1, OV 2, and OV 10. He claims that all three OVs were scored erroneously and that resentencing is required. We disagree.

Under the sentencing guidelines, the circuit court's factual determinations are reviewed for clear error and must be supported by a preponderance of the evidence. Whether the facts, as found, are adequate to satisfy the scoring conditions prescribed by the statute, i.e., the application of the facts to the law, is a question of statutory interpretation, which an appellate court reviews de novo. [People v. Hardy, 494 Mich. 430, 438; 835 N.W.2d 340 (2013) ]
With respect to OVs 1 and 2, defendant argues that each OV was improperly scored because there was insufficient evidence to support a conclusion that he possessed a firearm during the crimes at issue. OV 1 is to be scored at 15 points if a firearm was pointed at or toward a victim, Michigan Compiled Laws 777.31(1)(c), and OV 2 is to be scored at 5 points if the offender possessed or used a firearm (subject to some exceptions not applicable here), Michigan Compiled Laws 777.32(1)(d). Here, as discussed above, the victim expressly testified that defendant possessed a firearm during the crimes at issue. This testimony was sufficient to support the trial court's scoring of OVs 1 and 2, and we reject defendant's argument that `[t]he fact that no shots were fired preponderates in favor of a finding that [defendant] did not possess a pistol within the meaning of OV–1 and OV–2.’

A simple review of the language in Michigan Compiled Laws 777.31(1)(c) and Michigan Compiled Laws 777.32(1)(d) demonstrates that the Legislature did not include a requirement that `shots [be] fired’ in order to score OV 1 at 15 points and OV 2 at 5 points. Accordingly, we conclude that the trial court correctly scored OV 1 and OV 2.
People v. Washington, supra.
The court then took up the issue of the remaining OV, explaining that
[w]ith respect to OV 10, defendant argues that `[t]he evidence show[s] that this was a purely opportunistic crime.’ OV 10 is to be scored at 15 points if `[p]redatory conduct was involved.’ Michigan Compiled Laws 777.40(1)(a), in the commission of the crimes at issue. Defendant claimed at sentencing and again argues on appeal that OV 10 should have been scored at 10, not 15 points. Even if we assume that defendant is correct, however, resentencing is not required.

Defendant, a fourth-offense habitual offender, was sentenced based on an applicable minimum sentence range of 135 to 450 months, which was premised on his placement in OV Level III with a total OV score of 45 points. See Michigan Compiled Laws 777.62. Even if we were to reduce that total OV score by 5 points as requested by defendant, he would remain placed in OV Level III and would, therefore, be subject to the same applicable minimum sentence range. When an alleged scoring error would not impact the appropriate minimum sentence range, resentencing is not required. See People v. Fransisco, 474 Mich. 82, 89 n 8; 711 N.W.2d 44 (2006); see also People v. Biddles, 316 Mich. App. 148, 156; ––– N.W.2d –––– (2016). Accordingly, even if we assume that the trial court erroneously scored OV 10 at 15 points, resentencing is not required.

Affirmed.
People v. Washington, supra.


Wednesday, August 16, 2017

The Text Messages, Criminal Harassment and the Sufficiency of the Evidence

This post examines an opinion from the Appeals Court of Massachusetts:  Commonwealth v. Villaneuva, 92 Mass. App. Ct. 1101 (2017). The court begins the opinion by explaining that
[f]ollowing a jury-waived trial, the defendant was convicted of criminal harassment pursuant to Massachusetts General Laws 265, § 43A(a), based on a series of text messages he sent over a two-hour period to the victim. On appeal, he claims that the evidence was insufficient to prove that he committed three separate acts of harassing conduct over a period of time, as required by the statute. For the reasons that follow, we affirm.
Commonwealth v. Villaneuva, supra.
The court goes on to explain that
[w]e recite the facts in the light most favorable to the Commonwealth.

See Commonwealth v. Latimore, 378 Mass. 671, 677 (1979). On January 1, 2014, the victim, whom we shall call Mary, met the defendant while shopping at a Walmart store in Fairhaven. The two engaged in some polite conversation. At a certain point, the defendant asked Mary if she had a boy friend and then requested her telephone number. Mary gave the defendant the number of her cellular telephone because she felt nervous. The defendant tried the number and Mary's telephone rang. He then asked Mary where she lived. She replied that she lived on Smith Street, but she did not give her full address. That night, the defendant telephoned Mary twice and sent her a number of text messages. Mary sent a text message in response to the telephone calls telling the defendant that she was with her family. She ignored the text messages.

The defendant and Mary had no further contact until January 13, 2014, when the defendant sent Mary the following text messages between 4:24 A.M. and 4:37 A.M.:

4:24 A.M.: `Hey u FAT FucKEN CUNT, when I see u, am fucken ur shitt upp.’
4:25 A.M.: `N when I see ur car, am settin it ON fire too BiTcH, lmfaooooo.’
4:27 A.M.: `Hey When u sit down, without a shirt n bra. Look DOWN at ur Rolls at ur belly n see how many u have, lmfaooo.’
4:28 A.M.: `How many, like 3. Lol, let me stop, cause I can't stop laughin tho.’
4:29 A.M.: `I feel bad for ur ass, cause I don't forgitt faces. So ill be seein u soon.’
4:33 A.M.: `So-yeah I work at a Fish House gittin paid $650.00 per week. N I have my own house by tha South End Beach. I think am doin better then u, with jus ljob tho u fucken CUNT.’
4:35 A.M.: `U must always Smell like FiSh when u wake up. Look at urself ur fat, ur not a model tho. Fat bitches r only good enough for stuffin thea mouth all tha tim with food n COCK too, lol.’
4:37 A.M.: `Peace n goodluck PuTA, lmfaoooo.’
Commonwealth v. Villaneuva, supra.
The court goes on to explain that
Mary did not read the messages until later that morning. At 6:10 A.M., she replied:

`You don't even know me!? I don't know you I don't even know your name! Don't threaten me. Your going to fuck me up and set my car on fire because I don't want to talk to a stranger? Wth is wrong with you? Just delete my number like I thought you did and leave me alone!?’
The defendant responded immediately by sending three more text messages between 6:11 A.M. and 6:13 A.M.:
6:11 A.M.: `Cunt.’
6:12 A.M.: `Smith st. Baby.’
6:13 A.M.: `Well why did u even give me ur numba for?, if am a stranger. U make no sense for a sexy white gurl tho.’
Then, at 6:15 A.M., the defendant sent Mary a photograph of a penis, after which Mary replied:
6:15 A.M.: `K one min your telling me I'm a fat cunt next your calling me sexy. I've never had someone I didn't know what so ever ask for my number so I said ok because I was nervous and I just got back with my bf. You just need to leave me alone I really don't want to be threatened at 4 in the morning.’
The defendant's last communication, also sent at 6:15 A.M., was a photograph of himself smiling.
Commonwealth v. Villaneuva, supra.
The Appeals Court goes on to explain that
Mary testified that she felt scared when she read the defendant's text messages. Due to her fear, she woke up her cousin, with whom she lived, and asked her to sleep with her. She alerted her mother and stepfather and reported the incidents to the police. For the following two months, Mary carried a knife for protection and arranged to have someone accompany her in and out of her house.
Commonwealth v. Villaneuva, supra.
Having explained how the prosecution arose, the Appeals Court took up the defendant’s argument that the evidence presented at trial was not sufficient to establish his guilt beyond a reasonable doubt.  Commonwealth v. Villaneuva, supra.
The Court began its analysis by explaining that
General Laws c. 265, § 43A(a), as amended by St. 2010, c. 92, § 10, prohibits `willfully and maliciously engag[ing] in a knowing pattern of conduct or series of acts over a period of time directed at a specific person, which seriously alarms that person and would cause a reasonable person to suffer substantial emotional distress.’ The defendant claims that his motion for a required finding of not guilty should have been allowed because the Commonwealth failed to prove that he engaged in a series of criminally harassing acts over a period of time. Instead, he claims, the evidence established one continuous act of criminal harassment. The Commonwealth asserts that each one of the thirteen text messages sent by the defendant constitutes a separate and distinct act of harassment.
Commonwealth v. Villaneuva, supra. The Appeals Court began its analysis of the arguments made by both sides to the prosecution by inserting this footnote after the sentence above in which Villaneuva argues that the prosecution had not proven that he engaged in a series of criminally harassing acts over a period of time:
Because the defendant challenges the sufficiency of the evidence on only one element of the offense, we need not address the evidence supporting the remaining elements. It suffices to note that the Commonwealth met its burden of proof on all of the statutory elements. Instead, he claims, the evidence established one continuous act of criminal harassment. The Commonwealth asserts that each one of the thirteen text messages sent by the defendant constitutes a separate and distinct act of harassment.
Commonwealth v. Villaneuva, supra.
The Appeals Court went on to explain that the
statute does not define the meaning of the words, `pattern of conduct or series of acts’ or `over a period of time.’ The Supreme Judicial Court has determined that the phrase, `pattern of conduct or series of acts,’ requires the Commonwealth to prove three or more incidents of harassment. See Commonwealth v. Welch, 444 Mass. 80, 89-90 (2005), overruled on another ground by O'Brien v. Borowski, 461 Mass. 415 (2012); Commonwealth v. McDonald, 462 Mass. 236, 240 (2012). In Commonwealth v. Valentin, 91 Mass. App. Ct. 515, 523 (2017), we interpreted the phrase, `over a period of time,’ to `simply denote[ ] the passage of time.’ We rejected the defendant's contention that his conviction of stalking in violation of a restraining order could not be sustained because each of the alleged acts occurred on the same day. Giving the words, `over the course of time,’ `their usual and accepted meanings,’ Commonwealth v. Zone Book, Inc., 372 Mass. 366, 369 (1977), we `s[aw] no reason to require a particular interval of time between acts. As long as the acts are separate, distinct, and separated by some interval, they occur ‘over a period of time’ within the meaning of the statute.’ 
Commonwealth v. Villaneuva, supra.
The court then began the process of enunciating its ruling on the issues outlined above, explaining, initially, that
[w]e view the evidence and all reasonable inferences that may be drawn therefrom in the light most favorable to the Commonwealth, to determine whether `any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ Commonwealth v. Latimore, 378 Mass. at 677-678.

Here, there was evidence that the defendant sent eight text messages within a span of thirteen minutes. The intervals between each message varied from one to four minutes. With respect to this group of messages, it is clear that each one was separated by `some interval,’ but not so clear that the messages are separate and distinct from each other. We need not resolve this issue, because it matters not whether we treat the first group of texts as one or eight incidents of harassing conduct.

As we have noted, Mary read the first group of text messages and replied to them about one and one-half hours after they were sent. Thereafter, the defendant sent three additional text messages, at least two of which qualify as harassing in nature. He then sent a photograph of a penis. When Mary again responded, the defendant sent a photograph of himself smiling.

Viewing this sequence in the light most favorable to the Commonwealth, the judge could have found beyond a reasonable doubt that the defendant engaged in at least four separate and distinct acts of harassment separated by some interval. Cf. Commonwealth v. Kulesa, 455 Mass. 447, 451 (2009) (`defendant's two telephone calls to the victim's sister’ on one afternoon were sufficient for two of three required acts).
            Judgment affirmed.
Commonwealth v. Villaneuva, supra.            

Monday, August 14, 2017

Aggravated Indecent Exposure, Probation and the Internet Restrictions

This post examines a recent decision from the Court of Appeals of Michigan: People v. Wilson, 2017 WL 3197681 (2017) (per curiam). The court begins the opinion by explaining that
Defendant appeals, by delayed leave granted, certain probation conditions imposed for her guilty plea conviction of aggravated indecent exposure, [Michigan Compiled Laws] 750.335a(2)(b). The trial court sentenced defendant to a five year term of probation, with the first nine months to be served in jail. The trial court imposed additional probation conditions upon defendant and required the payment of specific court costs and fees. We vacate the condition of the defendant's probation restricting her from owning, possessing, or using `any computer or any device capable of connecting to the [i]nternet[,] either directly or indirectly[,] through a third party provider or reside in any residence in which these are present.’ We also remand for a hearing on whether the internet restrictions are warranted and, if so, for the court to tailor those internet restrictions to conform to the purpose behind defendant's individualized order of probation. We affirm in all other respects.

Defendant, 24 years old when she entered her guilty plea, admitted that at some point between 2005 through 2010 (when she was between 14 and 19 years old) she exposed and fondled her breast in front of a young person. The trial court sentenced defendant to a five year probation which included as a condition of probation that defendant not `own, possess, or use any computer or any device capable of connecting to the [i]nternet[,] either directly or indirectly[,] through a third party provider or reside in any residence in which these are present’ unless she first obtains written permission from the field agent. Additionally, the trial court ordered defendant to pay $68 for `State Cost,’ $130 as a crime victim assessment fee, $300 in court costs, $600 as a supervision fee, and $400 as a county probation oversight fee.
People v. Wilson, supra.
The opinion goes on to explain that
[t]hereafter, defendant moved the trial court to correct an `invalid sentence.’ Defendant argued that the complete ban on computer and internet use was an unlawful, overbroad probation condition and was not rationally related to defendant's rehabilitation or the facts of the case. Defendant further sought to have the order for a $400 `county probation oversight fee’ vacated, contending that the trial court lacked the necessary statutory authorization to impose that assessment. The trial court denied defendant's motion. The trial court acknowledged that the computer ban seemed overbearing and was `excessive maybe on some levels,’ but opined that because the county apparently imposed the computer ban as a restriction on all individuals under their supervision for sex offenses, it was not going to `step on the toes of the legislation.’ The trial court further found that the $400 fee is supported through the county and that there was verification as to how the funds were to be used by the county. A panel of this Court denied defendant's delayed application for leave to appeal the above decision. People v. Wilson, unpublished order of the Court of Appeals, entered February 4, 2016 (Docket No. 330799). However, our Supreme Court, in lieu of granting defendant's application for leave to appeal the Court of Appeals' denial, remanded the cases to the Court of Appeals for consideration as on leave granted. People v. Wilson, 500 Mich. 928; 889 N.W.2d 249 (2017).
People v. Wilson, supra.
The Court of Appeals then took up the issue of the probation conditions, explaining that
[w]e review the trial court's decision to set terms of probation for an abuse of discretion. People v. Zujko, 282 Mich. App. 520, 521; 765 N.W.2d 897 (2008). A trial court abuses its discretion only when its decision falls outside the principled range of outcomes. People v. Malinowski, 301 Mich. App. 182, 185; 835 N.W.2d 468 (2013).

A sentencing judge is accorded wide discretion in setting conditions of probation. People v. Miller, 182 Mich. App. 711, 713; 452 N.W.2d 890 (1990). MCL 771.3(3) permits a court to `impose other lawful conditions of probation as the circumstances of the case require or warrant or as in its judgment are proper.’ Thus, only if the conditions are unlawful will the judge's determination be disturbed. Miller, 182 Mich. App. at 713. `While there is no ultimate catalog of legal or illegal terms, and the Legislature did not define what constitutes a ‘lawful’ term of probation, there must be a rational relationship between the restriction and rehabilitation.’ Id. (internal citations omitted).
People v. Wilson, supra.
The court goes on to explain that the
discretion given to the trial court to impose `other lawful conditions of probation’ is `obviously necessary to allow trial judges to tailor sentences to the differing circumstances of those convicted of crimes and to meet the requirement of individualized sentencing.’ People v. Peters, 191 Mich. App. 159, 165; 477 N.W.2d 479 (1991); Michigan Compiled Laws 771.3(3). According to this Court:

`To accomplish the purpose of [probation], an exceptional degree of flexibility in administration is essential. It is necessary to individualize each case, to give that careful, humane[,] and comprehensive consideration to the particular situation of each offender which would be possible only in the exercise of broad discretion. [Peters, 191 Mich. App. at 165, quoting Burns v. United States, 287 U.S.216, 220; 53 S.Ct. 154; 77 L.Ed. 266 (1932)].

`[E]ach judge must decide for himself whether there is a rational relationship between the restriction and rehabilitation.’ People v. Johnson, 92 Mich. App. 766, 768; 285 N.W.2d 453 (1979).’
People v. Wilson, supra.
The Court of Appeals went on to explain that the
challenged probation term restricted defendant from owning, possessing, or using `any computer or any device capable of connecting to the[i]nternet [,] either directly or indirectly[,] through a third party provider or reside in any residence in which these are present’ unless she first obtains written permission from the field agent. According to defendant's probation officer, Bruce Garchow, the condition was imposed on all individuals that are under supervision for sex offenses. Any universal probation condition defeats the aim of rehabilitation where it is not tailored to each individual's offense and rehabilitation. The victim in this matter reported various incidents of sexual assault by defendant, and included a statement that defendant showed him pornographic movies. While pornography can be accessed on the internet, the restriction failed to account for other legitimate, lawful and necessary use of a computer and the internet. Placing a total ban on one's ability to use a computer and the internet for five years, or to reside in any residence where a computer or the internet is present, could pose a significant barrier to a defendant's transition back into society. Moreover, such a broad restriction could prove unworkable in today's high-tech society where some jobs require online applications and even the most basic cell phones are “capable of connecting to the internet.”

In her brief on appeal, as she did before the trial court, defendant outlines several legitimate reasons to use the internet. Specifically, defendant desires to use the internet to research questions and issues related to the parenting of her recently born twins, job hunting, housing, and daycare, and to communicate with her fiancé and to allow her children to do so while he is on military duty. The trial court did not state any reason for the blanket restriction and the prosecution did not explain how the restriction might be related to defendant's rehabilitation. In fact, the trial court was troubled by the overbearing and the excessive nature of the condition, but declined to modify the restriction. A broad blanket restriction on the use of the internet and computers, without regard to a defendant's need for the resources and the state's interest in rehabilitation of the defendant is questionable, particularly when there was nothing to show that the restriction was lawfully and logically related to the nt's defendant's rehabilitation. Miller, 182 Mich. App. at 713; Peters, 191 Mich. App. at 164–165.
People v. Wilson, supra.
The court then goes on to point out that
[f]ederal appellate courts have addressed similar issues regarding computer and/or internet restrictions. For instance, in United States v. Sofsky, 287 F3d 122, 124 (U.S. Court of Appeals for the 2d Circuit 2002), the defendant pleaded guilty to receiving child pornography. A condition of his probation prohibited him from using a computer or the internet without the approval of his probation officer. Id. Quoting United States v. Peterson, 248 F3d 79, 83 (U.S. Court of Appeals for the 2d Circuit, 2001), the court noted that `”‘computers and Internet access have become virtually indispensable in the modern world of communications and information gathering,”’ and that ‘”although a defendant might use the telephone to commit fraud, this would not justify a condition of probation that includes an absolute bar on the use of telephones."' ofsky, 287 F3d at 126. The court vacated the condition and remanded for `entry of a more restricted condition.’ Id. at 127.

Similarly in United States v. Miller, 594 F3d 172 (U.S. Court of Appeals for the 3rd Circuit 2010), the third circuit vacated the trial court's probation condition imposing a lifetime limitation on internet use where the defendant was convicted of child pornography, holding that it was a greater restraint of liberty than is reasonably necessary and that `conditions restricting computer and internet usage for child pornography offenders . . . as they bear on tools that are essential in modern life for legitimate purposes of communication, commerce, and information-gathering, must be narrowly tailored according to the context of the particular offense.’
People v. Wilson, supra.

The Court of Appeals then began the process of articulating its ruling – its decision – in this case:
. . . [W]hile there was a mention at the motion hearing that the police report indicated that the pornography shared with the victim was accessed on the internet, this could not be gleaned from the PSIR or the victim's statement, which indicated only that he had been shown pornography, but did not indicate whether it was on the computer as opposed to a television. In any event, while these facts might provide some basis for a restriction, the trial court did not individualize or tailor the restriction in this case. Rather, the trial court imposed the condition because it was universal, while noting that it was `overbearing’ and `excessive on some levels.’ Given the broadness of the probation condition in this case and the failure to tailor it to defendant's rehabilitation, we vacate the condition and remand to the trial court for a hearing on whether the internet restrictions are warranted and, if so, for the trial court to tailor those internet restrictions to conform to the purpose behind defendant's individualized order of probation.

With respect to defendant's challenge to the $400 `county oversight fee,’ as unauthorized by statute, we note that issues of statutory interpretation are questions of law that we review de novoKoontz v. Ameritech Services, Inc., 466 Mich. 304, 309; 645 N.W.2d 34 (2002). `The right of the court to impose costs in a criminal case is statutory.’ People v. Cunningham, 496 Mich. 145,149; 852 N.W.2d 118 (2014), quoting People v. Wallace, 245 Mich. 310, 313; 222 NW 698 (1929). `Thus, courts may impose costs in criminal cases only where such costs are authorized by statute.’ Id. `[W]hen a criminal defendant is placed on probation, courts may require the probationer to pay expenses specifically incurred in prosecuting the defendant or providing legal assistance to the defendant and the supervision of the probationer.’ Id. (internal quotation marks omitted); Michigan Compiled Laws 771.3(5).
People v. Wilson, supra.
The Court of Appeals goes on to explain that
Michigan Compiled Laws 771.3(2)(c) provides that as a condition of probation, the court may require the probationer to pay costs pursuant to subsection (5). Subsection (5) provides: `If the court requires the probationer to pay costs under subsection (2), the costs shall be limited to expenses specifically incurred in prosecuting the defendant or providing legal assistance to the defendant and the supervision of the probationer.’

During the motion hearing, plaintiff explained that county probation oversight fees are used by the county to cover probation expenses like heat, light, and other utilities. Specifically, plaintiff stated that the statutory purpose for the fee was for the supervision of probationers. Additionally, probation officer Garchow explained that the probation oversight fee was a “standard” fee associated with all probationers, which “goes to cover the office supplies used in the supervision of probationers.” The oversight fee is thus authorized under Michigan Compiled Laws 771.3(2)(c) and (5) as an expense incurred in the supervision of a probationer and the trial court did not err in imposing the fee.
People v. Wilson, supra.
And the court concluded the opinion with these comments:
We vacate the condition of the defendant's probation restricting her from owning, possessing, or using `any computer or any device capable of connecting to the [i]nternet[,] either directly or indirectly[,] through a third party provider or reside in any residence in which these are present’ and remand to the trial court for a hearing on whether the internet restrictions are warranted and, if so, for the court to tailor those internet restrictions to conform to the purpose behind defendant's individualized order of probation. We affirm in all other respects. We do not retain jurisdiction.
People v. Wilson, supra.


Friday, August 11, 2017

The Emails, the Nolo Contendere Plea and Attorney Discipline

This post examines a recent opinion the Supreme Court of Georgia issued in an attorney discipline proceeding:  Matter of Spain, 2017 WL 2822453 (2017) (per curiam). The Court begins the opinion by explaining that
[t]his disciplinary matter is before the Court on the second petition for voluntary discipline filed by Respondent John Michael Spain (State Bar No. 668898) pursuant to Bar Rule 4-227 (b)(2); this Court rejected Spain's first petition for voluntary discipline. See In the Matter of Spain, 300 Ga. 641, 797 S.E.2d 452 (2017). As recited in our opinion on Spain's first petition,
In his petition, Spain, who became a member of the Georgia Bar in 1999, admits that he pled nolo contendere in the State Court of Fayette County, Georgia to one misdemeanor violation of Georgia Code § 16-5-90 (stalking), and one misdemeanor violation of Georgia Code § 16-11-39.1 (harassing communications). He was sentenced to one year of probation on each count to be served consecutively. He states that the charges to which he pled nolo contendere were based on numerous emails that he sent over an approximately two-day period to opposing counsel in a divorce case, in which he is the defendant, and that he was acting pro se at the time, although he has since retained counsel. Spain further admits that the emails included inappropriate threatening language, intimidation and personal attacks directed to opposing counsel, including inappropriate remarks about counsel and members of her family, and ad hominem statements about his wife.
Matter of Spain, supra.
The opinion goes on to explain that Spain
admitted that by virtue of his convictions he had violated Rule 8.4(a)(3) of the Georgia Rules of Professional Conduct, and sought as discipline a Review Panel or public reprimand; the maximum sanction for a violation of Rule 8.4(a)(3) is disbarment. This Court concluded that the suggested discipline of a reprimand, as requested by Spain and supported by the Bar, was insufficient in light of our prior case law on violations of Rule 8.4(a)(3) and rejected Spain's petition.
Matter of Spain, supra.
The Supreme Court goes on to explain that
[i]n the present petition, Spain states that he seeks a suspension of at least 30 days in duration but acknowledges that he would accept a longer suspension, or even disbarment. As in his prior petition,

Spain offers in mitigation that he has no prior disciplinary record and at the time of his misconduct he was suffering from personal and emotional problems related to his marriage, compounded by the divorce which, contrary to his expectations based on a prenuptial agreement, entailed substantial litigation for which his bankruptcy practice provided no helpful experience. Spain states that he has since retained an attorney to represent him in the divorce action and that he has sought professional help for these problems. In addition, he states that he acted in good faith to rectify the consequences of his conduct by entering nolo contendere pleas, and he has cooperated fully with the State Bar in bringing this matter to a voluntary resolution. Finally, he states that his misconduct did not involve his own practice or his own clients, he is deeply remorseful and recognizes that his conduct was contrary to his professional obligations and longstanding personal values, and he wishes that he could reverse his actions.
Matter of Spain, supra.
The Supreme Court goes on to explain that,
[h]owever, in the present petition and a subsequently filed brief in support, Spain elaborates that he seeks to have this Court consider his `actual conduct’ in relation to his fitness to practice law. In furtherance of that goal, Spain recounts the facts that led to the incident underlying his criminal convictions, but his presentation of facts consists mostly of an explanation of the reasons for his email tirade against the victim, rather than an assessment of his conduct.

For instance, Spain asserts in his petition that the victim of his email tirade—opposing counsel in his divorce—was `in violation of certain ethical rules relating to the practice of law,’ that the victim could have and should have provided a variety of testimony in support of his motion to enforce the couple's prenuptial agreement, and that he `hopes never to file a grievance against [the victim] because Petitioner does not believe even a successful grievance would ameliorate his own station in life.’ (emphasis added).

The first section of his supporting brief is given over to a similar, although even more detailed, recitation of the underlying facts. The brief then proceeds to a discussion of some authority, much of it from other states or from federal immigration proceedings, that bears on the question of whether his crimes of conviction constituted offenses involving moral turpitude. The brief ultimately concludes that no authority definitely resolves that question but that, nevertheless, his conduct should be punished under Rule 8.4(a)(3).

Matter of Spain, supra. If you click on the link above to Rule 8.4(a)(3), you will see that Rule 8.4(a)(3) says it is “a violation of the Georgia Rules of Professional Conduct for a lawyer to . . . be convicted of a misdemeanor involving moral turpitude where the underlying conduct relates to the lawyer's fitness to practice law”.
Matter of Spain, supra.
The court goes on to explain that
[i]n the Bar's response, it states that it supports Spain's petition, but believes that a suspension greater than Spain's suggestion of 30 days would be appropriate. The Bar's response reviews the case facts, with particular attention to the details of Spain's emails to the victim, discusses the general law regarding the establishing of a proper level of discipline, and notes that this Court's opinion rejecting Spain's prior petition clarified the range of permissible discipline when an attorney is convicted or found guilty of a crime in violation of Rule 8.4(a)(3). The Bar also notes that, although Spain stridently insists that he is deeply remorseful for his conduct and that he is throwing himself on the mercy of the Court, his filings before this Court focus largely on an attempt to explain the circumstances that led to his email tirade.

The Bar also recognizes that the manner in which Spain goes about this explanation may cause one reasonably to doubt the true extent of his remorse, including whether he considers himself the ultimate victim in all of this—possibly bringing into question the extent to which Spain's professed remorse should be taken in mitigation. The Bar's response does not otherwise contest Spain's asserted factors in mitigation, but does suggest in aggravation of discipline that Spain had a selfish motive in trying to extract a settlement in the divorce proceedings, that he has failed to completely accept responsibility for his conduct, and that he has considerable experience in the practice of law. Finally, the Bar notes that Spain's probation for the convictions that gave rise to this petition is scheduled to end on June 27, 2018, and suggests that a suspension that terminates at the conclusion of Spain's probation may be an appropriate sanction.
Matter of Spain, supra.
The Supreme Court then explains that,
[h]aving reviewed the record, we find that a one-year suspension with reinstatement conditioned upon proof of termination of probation is an appropriate level of discipline in this matter. See In the Matter of Williams, 284 Ga. 96, 663 S.E.2d 181 (2008); In the Matter of Paine, 280 Ga. 208, 210, 625 S.E.2d 768 (2006). Accordingly, Spain's petition for voluntary discipline is accepted and Spain is suspended from the practice of law in this State for one year from the date of this opinion, with his reinstatement conditioned upon acceptable proof, provided to the State Bar's Office of General Counsel, that his probation has been terminated. If the State Bar agrees that the condition has been met, it will submit a notice of compliance to this Court, and this Court will issue an order granting or denying reinstatement. Spain is reminded of his duties under Bar Rule 4-219(c).

Petition for voluntary discipline accepted. One year suspension with conditions for reinstatement.
Matter of Spain, supra.
The opinion goes on to explain that
[a]ll the Justices concur except Blackwell and Peterson, JJ., who concur in part and dissent in part.

Blackwell, Justice, concurring in part and dissenting in part.

I concur in the acceptance of the petition for voluntary discipline, but I am not convinced that a one-year suspension is necessary, and I dissent from the imposition of the suspension.

I am authorized to state that Justice Peterson joins this opinion.
Matter of Spain, supra.