PEOPLE OF THE STATE OF MICHIGAN v. RONALD EDWARD OWENS, JR.
No. 352908
STATE OF MICHIGAN COURT OF APPEALS
July 8, 2021
FOR PUBLICATION Saginaw Circuit Court LC No. 10-033976-FC
Before: JANSEN, P.J., and M. J. KELLY and RONAYNE KRAUSE, JJ. JANSEN, P.J.
If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports.
I. FACTUAL AND PROCEDURAL BACKGROUND
This is the third appeal in this matter. This Court previously summarized the facts of this case as follows:
Cornelius Owens (Cornelius) was shot twice in the legs on April 24, 2009. Cornelius and another witness—Maurice Harris—identified the shooter as Dyterius Roby, although Cornelius believed defendant [and his brother, codefendant Steven Owens] were behind the shooting. The prosecution presented evidence that in February 2009, a drug raid occurred at [defendant‘s] residence, and the police confiscated drug residue and paraphernalia, and approximately $60,000 hidden in air vents throughout the home. At a subsequent drug raid at [defendant‘s] residence in November, the police found a substantial amount of crack cocaine, $2,100 hidden in the walls, and drug packaging material.
Cornelius, a member of the same gang as defendant[ and Steven], participated in a DVD called “Prison Talk” in which he referenced certain gang affiliations and spoke negatively about [defendant and Steven]. After the February drug raid and the DVD, Cornelius began to hear rumors that [defendant and Steven] thought he was the snitch that led to the raid. Cornelius claimed that Steven called him a snitch and [defendant] yelled out “don‘t speak to the wire,” which again was a reference to Cornelius being a “snitch,” “rat” or the “police.” About a week before the shooting, Cornelius confronted [defendant and Steven] at a fish fry. Cornelius and other men pointed guns at [defendant and Steven], but the confrontation deescalated with no shots fired.
After Cornelis was shot, he eventually identified Roby as the shooter. Yet, Cornelius testified that both [defendant] and Steven approached him and offered him money and cocaine to recant his identification. Cornelius met with Roby‘s attorney and did as [defendant and Steven] asked, but after speaking with the police again, Cornelius admitted to the perjury scheme. A taped telephone call with Steven was admitted at trial, in which Steven discussed the scheme with Cornelius.
* * * [Defendant] was convicted of conspiracy to assault with intent to do great bodily harm less than murder[,
MCL 750.84 ], assault with intent to do great bodily harm less than murder[,MCL 750.84 ], bribing, intimidating, or interfering with a witness in a criminal case[,MCL 750.122(7)(b) ], and inciting or procuring one to commit perjury[,MCL 750.425 ]. [People v Owens, unpublished opinion of the Court of Appeals, issued April 10, 2014 (Docket No. 307117); slip op at 2-3.]
Defendant was sentenced, as a second-offense habitual offender,
This Court previously affirmed defendant‘s convictions and sentences. This Court concluded that defendant‘s convictions were not against the great-weight of the evidence presented by the prosecution. Owens, unpub op at 11-14. Relevant to this appeal, when considering defendant‘s assault and conspiracy convictions, this Court reasoned that a rational trier of fact could have found defendant guilty beyond a reasonable doubt because $60,000 was seized from defendant‘s home after a drug raid, Cornelius testified that defendant and Steven called Cornelius a snitch, and Cornelius was shot one week after he confronted defendant and Steven at a fish fry. Id. at 13. This Court also reasoned that the shooter had been in frequent contact with Steven, and defendant had deposited money into the shooter‘s jail account. Id.
Considering the witness interference and procuring perjury convictions, this Court concluded that evidence supported convicting defendant beyond a reasonable doubt because Cornelius testified that both defendant and Steven offered him money and cocaine to lie about who shot him. Id. at 13-14. Defendant accompanied Cornelius to meet with the shooter‘s attorney, where Cornelius recanted his confession. Id. at 14. Additionally, during a telephone conversation, Steven coached Cornelius to testify that he was confused about the shooter‘s identity. Id.
Defendant filed a petition for writ of habeas corpus with the United States District Court for the Eastern District of Michigan. The United States District Court stayed defendant‘s habeas proceedings to allow defendant to exhaust an additional challenge to his sentences in state court based upon the Michigan Supreme Court‘s decision in People v Lockridge, 496 Mich 358; 870 NW2d 502 (2015).
On February 27, 2017, defendant moved in the trial court for relief from judgment under
On September 30, 2019, in a 49-page opinion and order, the United States District Court for the Eastern District of Michigan granted, in part,
On October 8, 2019, the trial court vacated defendant‘s assault with intent to do great bodily harm less than murder and conspiracy to commit assault with intent to do great bodily harm less than murder convictions. On October 14, 2019, defendant in propria persona filed a successive motion for relief from judgment. Defendant argued that, after two of his convictions were vacated, his prior record variables (PRVs) and offense variables (OVs) were drastically different. Because the convictions had been vacated, the facts of those convictions could not be relied on to increase defendant‘s sentencing variables. Defendant asserted that he was entitled to relief on the basis of good cause under
The prosecution responded that the trial court should deny defendant‘s successive motion for relief from judgment because defendant had not established an exception to warrant granting the motion. The United States District Court for the Eastern District of Michigan‘s decision was a legal determination, not evidence of any fact related to defendant‘s case. Further, a request for resentencing was not a form of relief on which new evidence could be asserted because the test for newly discovered evidence relied on whether the evidence made a different result probable on retrial. The prosecution also argued that, although defendant had not argued that the habeas order was a change in the law, an individual ruling was not a change in the law. Relying on Black‘s Law Dictionary (11th ed), the prosecution noted that “the law” represented a body of laws, the aggregate of legislation, or the body of custom and practice. It did not include the application of law to an individual case. Finally, the prosecution argued that the trial court did not have the authority to recharacterize defendant‘s motion or sua sponte grant defendant relief.
In an order entered January 15, 2020, the trial court granted defendant‘s motion for relief from judgment because of a retroactive change in the law of defendant‘s case and because his prior sentence was based on guidelines that considered elements of his vacated convictions. It ordered resentencing. The trial court determined that newly discovered evidence did not support defendant‘s motion. The court rule did not define newly discovered evidence, though it clarified that that evidence included scientific evidence. The court determined that the word “evidence” did not include a judicial opinion. However, the trial court determined that defendant‘s vacated convictions were a retroactive change in law occurring after his first motion for relief from judgment.
The trial court rejected the prosecution‘s argument that a change in law could not include a change in the law of defendant‘s case. It reasoned that the definition of “law” in Black‘s Law Dictionary (11th ed) and Merriam-Webster were both very broad. The court found that interpreting the word “law” to include the law of the case was consistent with the purposes of
Additionally, the court noted that under
On February 5, 2020, the prosecution moved for reconsideration. The trial court denied the prosecution‘s motion. This appeal followed.
II. STANDARD OF REVIEW
On appeal, the prosecution argues that the trial court erred by sua sponte recharacterizing the arguments defendant made in his second motion for relief from judgment, filed in propria persona. The prosecution also argues that the trial court erred by finding that the change in the law of defendant‘s case constituted a “retroactive change in the law.”2
III. ANALYSIS
First, we address the prosecution‘s argument that the trial court should not have granted defendant‘s motion for relief from judgment on the basis of a change in law when defendant only argued that he was entitled to relief from judgment on the basis of new evidence. To accept the prosecution‘s argument would require this Court to read language into two court rules:
which concerns a preliminary showing, not the ultimate burden; and
This Court applies the same legal principles when interpreting court rules as it does to interpreting statutes. Williams, 483 Mich at 232. When interpreting a court rule, this Court first considers the rule‘s plain language. Id. If the plain language is clear, this Court will not engage in further construction or interpretation. Id. This Court generally gives words their plain and ordinary meanings. People v Morey, 461 Mich 325, 330; 603 NW2d 250 (1999). This Court will not add language to an unambiguous court rule. See People v Petit, 466 Mich 624, 633; 648 NW2d 193 (2002).
(1) Except as provided in subrule (G)(2), . . . one and only one motion for relief from judgment may be filed with regard to a conviction. The court shall return without filing any successive motions for relief from judgment. . . .
(2) A defendant may file a second or subsequent motion based on a retroactive change in law that occurred after the first motion for relief from judgment or a claim of new evidence that was not discovered before the first such motion. . . .
Accordingly, before a trial court may consider a successive motion for relief from judgment, the defendant must make a threshold showing that the motion is brought on the basis of a retroactive change in law, that there is new evidence that was not discovered before the first motion, or that there is a significant possibility
We conclude that the prosecution‘s argument lacks merit because
The context of the court rules in general supports that
In this case, the trial court “recognize[d] that [d]efendant was not able to adequately legally articulate his argument as to why his changed circumstances should allow the Court to reconsider his situation. . . .” It opined that defendant had asserted that an exception in
Generally, a trial court may address an issue sua sponte if the court provides the parties with notice and an opportunity to be heard on the issue. Lamkin v Hamburg Twp Bd of Trustees, 318 Mich App 546, 550; 899 NW2d 408 (2017). See also People v Curtis, 389 Mich 698, 711; 209 NW2d 243 (1973). In this case, the prosecution was not deprived of notice and an opportunity to be heard regarding whether defendant was entitled to file a successive motion for relief from judgment on the basis of a retroactive change in law. Indeed, defendant asserted that the United States District Court‘s decision to grant him relief on his habeas corpus petition was the basis for his claim for relief. The prosecution responded that defendant had not established a retroactive change in law or newly discovered evidence. The prosecution argued in part that the order granting in part habeas relief to defendant was not a change in the law by the definition of “law,” and that a change in law did not mean the change in the application of law in an individual case. The prosecution had notice and the opportunity to be heard concerning whether a change in law supported defendant‘s motion. Thus, we cannot conclude that the trial court abused its discretion by recharacterizing defendant‘s arguments and then granting relief on that basis.
We next address the prosecution‘s argument that the trial court erred by concluding that the order granting defendant habeas relief constituted a retroactive change in the law of defendant‘s case that warranted relief under
For purposes of subrule (G)(2), “new evidence” includes new scientific evidence. This includes, but is not limited to, shifts in science entailing changes:
(a) in a field of scientific knowledge, including shifts in scientific consensus;
(b) in a testifying expert‘s own scientific knowledge and opinions; or
(c) in a scientific method on which the relevant scientific evidence at trial was based.
We conclude that the trial court erred by holding that the order granting defendant habeas relief was a “retroactive change in law” for the purposes of
In this case, the trial court determined that defendant‘s vacated convictions were a retroactive change in law. It reasoned that the definition of law was broad in both legal and general dictionaries. The trial court separately considered the word “retroactive,” and concluded that it has a broad meaning. It found that interpreting the word “law” to include the law of the case was consistent with the purposes of
However, because the term “retroactive change in law” is a legal term of art, the trial court erred by breaking apart the words that comprise this phrase and by not construing this phrase consistent with its legal meaning. A large body of law is devoted to determining whether a change in law applies retroactively to a criminal case on collateral review. See, e.g., People v Barnes, 502 Mich 265, 267-269; 917 NW2d 577 (2018); People v Maxson, 482 Mich 385, 387-392; 759 NW2d 817 (2008). This body of law specifically focuses on whether a change in law should be applied in the context of
The definitions of the word “retroactive” support this interpretation. Retroactive means “extending in scope or effect to matters that have occurred in the past.” Black‘s Law Dictionary (11th ed). Retroactivity is “[t]he quality, state, or condition of having relation or reference to, or effect in, a prior time; specif., (of a statute, regulation, ruling, etc.) the quality of becoming effective at some time before the enactment, promulgation, imposition, or the like, and of having application to acts that occurred earlier.” Black‘s Law Dictionary (11th ed). Black‘s Law Dictionary provides the following note concerning retroactivity:
” ‘Retroactivity’ is a term often used by lawyers but rarely defined. On analysis it soon becomes apparent, moreover, that it is used to cover at least two distinct concepts. The first, which may be called ‘true retroactivity,’ consists in the application of a new rule of law to an act or transaction which was completed before the rule was promulgated. The second concept, which will be referred to as ‘quasi-retroactivity,’ occurs when a new rule of law is applied to an act or transaction in the process of completion . . . . [Quotation marks and citation omitted.]
The law of the case doctrine “provides that an appellate court‘s decision regarding a particular issue is binding on courts of equal or subordinate jurisdiction during subsequent proceedings in the same case.” People v Herrera, 204 Mich App 333, 340; 514 NW2d 543 (1994). The law of the case doctrine concerns specific
However, we further conclude that the trial court‘s error was harmless. This Court will not modify a decision of the trial court on the basis of a harmless error.
In this case, the trial court ruled that a newly released judicial decision was not “evidence” because “evidence” could not include a judicial opinion. The trial court erred by not considering the legal definition of new evidence and applying new evidence rules to defendant‘s request for relief. Evidence is “[s]omething (including testimony, documents, and tangible objects) that tends to prove or disprove the existence of an alleged fact; anything presented to the senses and offered to prove the existence or nonexistence of a fact[.]” Black‘s Law Dictionary (11th ed).3 The explanatory note provides that evidence broadly means anything from which an inference can be drawn, or that establishes or disproves an alleged fact. Black‘s Law Dictionary (11th ed). A defendant may challenge the factual accuracy of information on which the sentencing court relies, and the trial court must resolve such challenges. People v Waclawski, 286 Mich App 634, 689; 780 NW2d 321 (2012). Additionally, the trial court makes findings of fact to support offense variable scores at sentencing. People v Osantowski, 481 Mich 103, 111; 748 NW2d 799 (2008). A federal court‘s decision that defendant should not have been found guilty of things on which his OV scores were based tends to disprove the factual accuracy of the PSIR and would affect the trial court‘s factual findings at sentencing. Therefore, it falls within the definition of “evidence.”
The language of
A trial court may grant a defendant a new trial on the basis of newly discovered evidence, but this does not negate the parties’ responsibility to “use
(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. [Id. at 313 (quotation marks and citations omitted).]
This four-part test applies regardless of whether a defendant is seeking a new trial or relief from judgment under
Although the prosecution argues that this test cannot apply to a request for resentencing,
although the test is usually focused on evidence produced at trial, and therefore whether that would make a different result probable on retrial, when a defendant‘s requested relief is resentencing, the prejudice portion of the test would be whether the party could not have produced the evidence at sentencing and that the evidence would make a different result probable on resentencing.
The order from the United States District Court for the Eastern District of Michigan vacating defendant‘s assault and conspiracy convictions falls within this test, as applied to defendant‘s requested relief. The fact that defendant should not have been convicted of any assault offenses, and because his sentences for his other convictions relied on the now-vacated assault and conspiracy convictions, constitutes newly discovered evidence. This evidence was not cumulative, defendant could not have produced the evidence at the time of sentencing, and the new evidence would make a different result probable on resentencing. Thus, the trial court erred by failing to find that defendant‘s successive motion for relief from judgment should have been granted on the basis of newly discovered evidence, that evidence being the habeas relief granted to defendant by the United States District Court for the Eastern District of Michigan.
Briefly, we note that as an alternative ground to affirm, defendant argues that the trial court did not abuse its discretion by granting his successive motion for relief from judgment because good cause warranted granting relief. However, where good cause or actual prejudice are not independent bases to grant relief from judgment, Swain, 288 Mich App at 632, this argument lacks legal support.
Defendant also argues as an alternative ground to affirm that the high possibility that he was actually innocent warranted granting relief from judgment. Again, we reject this argument because whether defendant was actually innocent of assault is a separate issue from whether defendant was actually innocent of witness intimidation or procuring perjury, which were the convictions on which he sought relief from judgment. Furthermore, the United States District Court did not find that defendant was actually innocent, but rather that the prosecution had not introduced sufficient evidence to support his assault charges. “Actual innocence” generally entails some new evidence
On the basis of the foregoing, we affirm, and further conclude that the trial court shall continue the appointment of appellate counsel for resentencing.
/s/ Kathleen Jansen
/s/ Michael J. Kelly
/s/ Amy Ronayne Krause