Mr. Cole was charged with two counts of criminal sexual conduct (“CSC”)—second degree.  The victim was under the age of 13 at the time of the offense.  In its Cobbs evaluation, the trial court agreed that if the defendant plead guilty to two counts of CSC-second degree, the court would not exceed the five-year minimum prison term, which would run concurrently.  No mention was made in the Cobbs evaluation of the mandatory lifetime electronic monitoring.  At the plea hearing, the prosecution noted that the statutory maximum term of imprisonment for this offense is 15 years in prison.  Neither the prosecutor nor the trial court informed the defendant that he would be subject to electronic monitoring. 

Defendant entered a guilty plea and was sentenced to serve concurrent five-to-fifteen year prison terms.  Additionally, the defendant was sentenced to lifetime electronic monitoring pursuant to MCL 750.520c(2)(b).  The defendant subsequently filed a motion seeking to withdraw his guilty plea arguing that his plea was not knowing and voluntary because he was not aware that he would be subject to mandatory lifetime electronic monitoring.  The trial court denied defendant’s motion.  The Court of Appeals reversed the trial court’s ruling holding that lifetime electronic monitoring is not a collateral consequence of defendant’s conviction, but rather part of the sentence itself.  As such, defendant had a right to be informed of this possible punishment before entering a plea.  The prosecutor sought leave to appeal, which was granted.

The Supreme Court affirmed the Court of Appeals’ opinion ruling that lifetime electronic monitoring for CSC-first and second degree convictions is part of the sentence itself.  Accordingly, both the due process clause and MCR 6.302 require that the trial court inform the defendant that he or she will be subject to monitoring at the time the defendant enters a guilty or no contest plea. 

In reaching this conclusion, the Court recognized that the trial court’s duty in this matter does not fall under the explicit instructions found in MCR 6.302 (B)–(D).  Rather, the Court looked to MCR 6.302(A) and noted that a plea must be “understanding, voluntary and accurate”.  Similarly, the Due Process Clause of the United States Constitution requires that a where a defendant waives his or her constitutional rights—which occurs when a defendant forgoes trial in lieu of entering a guilty or no contest plea—that waiver must be knowing and intelligent.  The defendant must be aware of the consequences of his or her actions.  The Cole Court concluded that MCR 6.302(A) is premised on the Due Process Clause and requires that a defendant be advised of the direct consequences of his or her actions for the plea to be understanding and voluntary.

The Court agreed with the Court of Appeals and concluded that lifetime electronic monitoring for CSC-first and second degree offenses is a part of the sentence, not a collateral consequence of a defendant’s conviction.  The Court noted that the mandatory lifetime electronic monitoring requirement is found in the penalty section of the CSC-first and second degree statutes.  Further, these monitoring provisions, as well as MCL 750.520n(1), state that the trial court “shall sentence” the defendant to lifetime monitoring.  Indeed, the CSC-second degree statute explicitly notes that lifetime electronic monitoring is “[i]n addition to the penalty imposed under subdivision (a) and (b)”. MCL 750.520c(2)(b).  In sum, the Court concluded that a plain reading of these statutes reveals that the Legislature intended for lifetime electronic monitoring to be part of the defendant’s sentence.  According, due process and MCR 6.302(A) require that the defendant be advised at the time of his or her sentencing that he or she will be subject to lifetime electronic monitoring.

Finally, the Court vacated its October 26, 2011 order which had granted application for leave to appeal in In re Mortimore Estate, Case No. 143307. After reviewing the briefing and hearing oral argument from the parties, the Court determined that the questions presented no longer needed to be reviewed.  Mortimore concerns the burden of proof needed to rebut a presumption of undue influence in a will contest proceeding.  The Court of Appeals opinion concluded that the proponent of the will bears the burden of overcoming the presumption of undue influence.  Justice Young, joined by Justices Markman and Mary Beth Kelly, dissented from this May 25, 2012 order.  In the dissent, Justice Young notes that he would have granted the application for leave to appeal and vacated the Court of Appeals opinion clarifying that the burden of proof in an undue influence should rest with the contestant of the will.  Justice Young also wrote that the proponent of the will should only need to introduce “substantial evidence” sufficient to create a question of fact concerning undue influence.  The trier of fact would then consider all of the evidence, and all reasonable inferences flowing from that evidence, to determine if undue influence occurred.

In Buie, Defendant James Buie appealed from multiple convictions of criminal sexual conduct for the rapes of an adult woman and two minors, ages nine and thirteen.  Medical personnel obtained DNA from the victims, and determined that Buie’s DNA was a match.  At trial, two DNA experts for the prosecution testified separately via two-way video conference.  Just before the first expert testified, Buie’s counsel made the following statement in regard to usage of video:  “[M]y client has—wanted to question the veracity of these proceedings, so I’ll leave that to the Court’s discretion.”  The court allowed the testimony and the jury convicted Buie. 

Buie appealed.  First, he claimed that he objected to the trial court’s use of video testimony and its use violated his constitutional right to confront witnesses against him.  Second, Buie asserted that the video testimony violated MCR 6.006(C).  The Michigan Court of Appeals remanded the case for an evidentiary hearing to determine (1) whether there was “good cause” to use video testimony as MCR 6.006(C) requires; and (2) whether the video testimony was “necessary to further an important public policy” under Maryland v Craig, 497 U.S. 836 (1990).  Following the evidentiary hearing, the Court of Appeals reversed Buie’s convictions, and held that the video testimony violated MCR 6.006(C) and Buie’s right to confrontation.  The prosecution appealed. 

The Michigan Supreme Court reversed.  The Court held that defense counsel could waive a defendant’s right to confrontation provided the defendant did not object on record.  Defense counsel’s decision to waive is presumptively reasonable for strategic reasons.  Allowing defense counsel this ability, absent an express objection from the defendant, prevents the defendant from later claiming that he did not condone the waiver if an unfavorable result occurs.  In reaching this conclusion, the Supreme Court overturned the Michigan Court of Appeals’ decision in People v Lawson, 335 N.W.2d 43 (1983), which had held that the defendant must personally waive the right to confrontation. 

Here, Buie’s counsel waived the right to confrontation by not objecting on the record to the video testimony explicitly.  The Court reasoned that it must confine the review of waiver to the trial record and could not base its decision on testimony obtained in the evidentiary hearing ordered by the Court of Appeals.  It found that defense counsel’s statement in regard to the video testimony did not constitute a valid objection because it expressed deference to the court’s discretion, which was akin to acquiescence.  Further, counsel’s statement did not contain the word “objection.”  Finally, defense counsel did not voice any additional qualms when the court allowed video testimony from the second DNA expert.  

The Supreme Court also held that the trial court did not violate MCR 6.006(C) because, for the reasons explained above, Buie acquiesced to the video testimony.  The “good cause” requirement in MCR 6.006(C) does not require the more stringent Craig standard when the defendant acquiesces to the use of alternate testimony.  Hence, the trial court satisfied “good cause” when it determined that the video testimony would be more convenient, cost effective, and efficient.

Justice Cavanagh and Justice Marilyn Kelly dissented and agreed with the Court of Appeals’ application of the Craig standard.  Further, they believed that defense counsel’s statement sufficiently showed Buie’s objection to the video testimony.  The dissenters would have vacated Buie’s convictions and remanded for a new trial.

Justice Hathaway authored the majority opinion in Department of Environmental Quality v. Worth Township, which remanded the matter for consideration of the township’s remaining arguments.  Chief Justice Young was the lone dissenter.  At issue here was a battle of statutory interpretation. NREPA contains a provision, MCL 324.3109(2), providing that:

“The discharge of any raw sewage … into any waters of the state shall be considered prima facie evidence of a violation of this part by the municipality in which the discharge originated unless the discharge is permitted by an order or rule of the [DEQ].  …”

The Court of Appeals interpreted the statute to mean that this created a rebuttable presumption that municipalities could overcome to avoid any NREPA responsibility.  The Supreme Court’s six-member majority agreed with the dissent in the Court of Appeals, which held that “prima facie evidence” created a rebuttable presumption of a violation of NREPA itself that the discharge was, in fact, injurious and thus a violation in the first place, but that the municipality remained responsible for any violation.

Two groups, Michigan Townships Association and Citizens Voice for Property Owners, Inc., each wrote amicus curiae briefs.

In Rao, Defendant Malini Rao sought a new trial after a conviction of second degree child abuse. Rao’s children were removed from her care by Child Protective Services after one of the children, age 3, exhibited multiple rib fractures and bruising and cuts on her face.  Pediatric expert witnesses testified that abuse was the only explanation for the child’s injuries.  Rao admitted to striking her child, but not to “beating” her.  The jury convicted Rao of second-degree child abuse under MCL 750.136b(3).

In a motion for new trial, Rao had argued that newly discovered evidence, in the form of additional x-rays, showed that the child’s injuries were not due to abuse but to a medical disorder.  This evidence, Rao argued, provided grounds for a new trial under the Cress test.  The trial court rejected the motion, and Rao appealed.  The Michigan Court of Appeals agreed with Rao’s interpretation of Cress and remanded the case for an evidentiary hearing to determine if the new evidence would have affected the outcome of the original trial.

Under the Cress test, a defendant has the burden of proving four factors: (1) “the evidence itself, not merely its materiality, was newly discovered; (2) the newly discovered evidence was not cumulative; (3) the party could not, using reasonable diligence, have discovered and produced the evidence at trial; and (4) the new evidence makes a different result probable on retrial.” Cress, 486 Mich. at 692.  In an opinion authored by Justice Markman, the Supreme Court reversed the Court of Appeals and held that Rao failed to carry her burden on parts one and three of the test.  First, the evidence was not newly discovered.  The record showed that both Rao and her counsel were aware of the possibility of additional x-rays at the time of the original trial.  Rao could have obtained those x-rays, but declined to do so for strategic or other reasons.  The Supreme Court also rejected the Court of Appeal’s interpretation of “newly discovered” evidence.  To succeed under Cress, the defendant must have been wholly unaware of the new evidence at the time of trial – mere unavailability of evidence or unawareness of its implications is insufficient.  Hence, Rao’s argument that the x-rays were unavailable at the time of trial was inadequate.  Second, the Court found that Rao did not exercise “reasonable diligence” in discovering and producing the new evidence.  Rao was aware of the possibility of obtaining additional x-rays, but did not even take the minimum step of moving the trial court to allow such x-rays.  Inaction of this sort does not provide grounds for a new trial.

 Justice Hathaway dissented, stating that she agreed with the Court of Appeals’ interpretation of Cress and would have remanded the case for an evidentiary hearing under part four of the test.  Justice Marilyn Kelly joined in the dissent.

In Brantley, Defendant Hawk Henry Brantley was convicted of first-degree criminal sexual conduct (CSC I) under MCL 750.520b(1)(e) and larceny from a person under MCL 750.357.  The Defendant raised four issues, three of which posed little problem for the court.  The court rejected the defendant’s arguments that the prosecution failed to present sufficient evidence and that the jury verdict was against the great weight of the evidence.  The court also corrected a sentencing error made by the trial court.  The trial court mistakenly added 10 points for offense variable 10 at sentencing, which stemmed from the court improperly classifying the relationship between Brantley and the victim as a “domestic relationship” under MCL 777.40(1)(b).

The defendant’s fourth issue, however, divided the court.  The defendant asserted that the trial court erred in ordering him to submit to lifetime electronic monitoring, and the issue centered on interpreting MCL 750.520n(1).  The crux of the issue presented was whether the defendant must be 17 years of age or older and the victim must be less than 13 years old in order to qualify for lifetime monitoring.  Judge Jansen, writing for herself and Presiding Judge Whitbeck, held that the age qualification only applied to CSC II and that in all cases of CSC I the defendant was required to submit to lifetime monitoring.  Judge Kelly dissented, stating the plain language of the statute made the age qualification applicable to both CSC I and CSC II convictions.

 The court affirmed the defendant’s convictions but vacated the sentence for the CSC I conviction and remanded for resentencing.