If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports.

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### S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff

- Appellee, UNPUBLISHED May 27, 2021

v No. 352414 Genesee Circuit Court MARK ANDREW SEKELSKY, LC No. 18

- 043474

- FC

Defendant

- Appellant.

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff

- Appellee,

v No. 352415 Genesee Circuit Court MIKADYN MAULAY PAYNE, LC No. 18

- 043472

- FC

Defendant

- Appellant.

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff

- Appell ant ,

v No. 352416 Genesee Circuit Court TREVOR ANTHONY GRAY, LC No. 18

- 043465

- FC

Defendant

- Appell ee

.

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff

- Appellee,- 2

-

v No. 352417 Genesee Circuit Court TREVOR ANTHONY GRAY, LC No. 18

- 043465

- FC

Defendant

- Appellant.

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff

- Appell ant ,

v No. 352475 Genesee Circuit Court ALEXZANDER MILLER, LC No. 18

- 043471

- FC

Defendant

- Appell ee

.

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff

- Appell ant ,

v No. 352476 Genesee Circuit Court MIKADYN MAULAY PAYNE

, LC No. 18

- 043472

- FC

Defendant

- Appell ee

.

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff

- Appellant,

v No. 352477 Genesee Circuit Court MARK ANDREW SEKELSKY, LC No. 18

- 043474

- FC

Defendant

- Appellee.

Before: S TEPHENS , P .J., and S AWYER and B ECKERING , JJ.

S TEPHENS , P. J

. ( dissenting ).- 3

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Given the procedural posture of this case and the timing of the prosecutor’s request for nolle prosequi
, I cannot agree with the majority’s conclusion that the prosecutor did not act in an ultra vires manner.

I. BACKGROUND

At an August 20, 2019 hearing , the court told defendants that they had three options: (1) affirm the plea and be sentenced as an adult th at day, (2) withdraw the plea and have the matter set for trial, or (3) make a new Cobbs proposal in writing. Counsel for defendant Payne argued that the court was violating the separation of powers where MCR 6.301(D) clearly “ state [d] that the prosecutio n is the one that determines whether or not there will be a plea other than to the charged offense and what that charge may be. ” Each defendant moved to withdraw his plea, which the court permitted. 1 The order stated that “[p]ursuant to MCR 6.312, [ 2 ] the Court will allow the People to seek to reinstate any charges reduced or dismissed in accordance with the plea agreement, in the People’s discretion.”

At the next hearing on September 24, 2019, the prosecution declined to revise or reinstate any charges. The parties instead moved to remand the matter to the district court for a preliminary examination on the manslaughter charge. The circuit court said that it did not have authority to remand the matter to district court because each defendant had validl y waived his preliminary examination. The prosecution then orally moved to dismiss the matter without prejudice so that charges could be re filed in juvenile court. The court did not wish to decide the matter until a written motion was filed and additiona l research was conducted. T he court added that the prosecution may wish to reduce the charges to acquire a different set of sentencing guidelines that would not call for a prison sentence. The prosecution later filed a written motion of nolle prosequi in each case, moving to dismiss the criminal c ase s against defendant s as juvenile delinquent s in order to refile and proceed under the jurisdiction of the family division . Defendants each agreed with the prosecutor that resolving this matter through a pro secution in the juvenile court was in their best interests.

The court issued a written opinion in which it addresse d the request to remand, the motion for n olle prosequi

, and its earlier decision to sentence the defendants as adults. The court noted th at the prosecution did not move to dismiss until the rejection of juvenile sentencing, which was “[a] clear case of avoidance of the Court’s sentencing decision.”

1 MCR 6.310(B)(2) provides that a defendant is entitled to withdraw a plea if “ the plea involves a statement by the court that it will sentence to a specified term or within a specified range, and the court states that it is unable to sentence as stated; the trial court shall provide the defendant the opportunity to affirm or withdraw the plea, but shall not state the sentence it intends to impose. ” MCR 6.310(B)(2) pertains to an agreement between the defendant and the trial court and is known as a “ Cobbs ” agreement.

2 MCR 6.312 states, “If a plea is withdrawn by the defendant or vacated by the trial court or an appellate court, the case may proceed to trial on any charges that had been brought or that could have been brought against the defendant if the plea had not been entered.”- 4

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The court’s refusal to grant the prosecutor’s nolle prosequi forms the bas is for these

con solidated appeals.

II. SEPARATION OF P OWERS

I begin my dissent with the points of agreement with the majority, the concurrence, the parties

, and the amici. Those key points of agreement are: 1 ) The pre

- trial nego t iations between the parties were ex tensive and followed the prosecution ’ s initial decision to automatically wa i ve the juveniles to adult court ; 2 ) The court repeatedly declined to agree to juvenile sentencing without a juvenile sentencing hearing ; 3 ) The court conducted that hearing and orally ruled with extensive fact finding that it would not sentence the juveniles as juveniles ; 4 ) The court’s ruling under MCR 6.931(3) and MCL 769.1(4) was subject to appeal un d er an abuse of di s cretion standard but no such appeal was filed nor wa s the ruling a subject of asserted error in this appeal ; and 5 ) The sole purpose of the prosecution’s nolle prosequi motion was to refile the cases in the family division where adult sentencing wa s not an option.

The majority and the concurrence assert tha t the prosecution’s motive for the stipulated motion to dismiss was not ultra vires. Under most circumstances

, I would concur. However in this case where the motion followed an unchallenged ruling by the trial court

, I must disagree. In accord with MCR 6.931, a juvenile sentencing hearing was held over several days between February 2019 and May 2019. 3 The court heard testimony from 13 witnesses concerning whether the juveniles should be sentenced as juveniles or ad ults, including from the officer in charge, adult probation officers, psychologists, juvenile justice workers, the juveniles’ families, and the victim’s family. The media reported on the matter extensively. 4 On July 23, 2019, the court gave its ruling

on the record. The court considered the seriousness of the offense, the juveniles’ culpability, prior delinquency records, the juveniles’ programming history, adequacy of punishment, and dispositional options. 5 The court rejected the parties’ proposal for juvenile sentencing. The court gave the defendants until August 20, 2019, to withdraw their pleas or make additional Cobbs proposals. There was no challenge to the court’s exercise of discretion in declining juvenile sentencing.

3 Hearings were held on February 21, 2019, March 6, 2019, April 18, 2019, May 1, 2019, May 31, 2019, and June 19, 2019. The transcript of the February 21, 2019 hearing has no t been provided. The register of actions reflects that a hearing was noticed for March 6, 2019, but does not reflect the hearing on that date.

4 As three examples, see < https://www.cbsnews.com/news/michigan

- judge

- rejects

-

juvenile

sentencing

- for

- teens

- in

- highway

- rock

- toss

- death/> ; < https://abcnews.go.com/US/teens

- deadly

michigan

- highway

- rock

- throwing

- case

- sentenced/story?id=64516770> ;
< https://www.fox2detroit.com/news/juvenile

- rejection

- judge

- will

- sentence

- 4

- teens

- in

- i

- 75

- rock

throwing

- death

- as

- adults> (a ccessed July 30, 2020).

5 The court wa s required to consider each of these factors in determining whether to sentence a juvenile as a juvenile or an adult offender. MCL 769.1(3).- 5

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I am keenly aware that t he rejection of a m otion to nolle prosequi has been rarely upheld.

The court’s statutory power to veto the prosecutor’s decision to discontinue a criminal proceedin g was not meant to significantly impair the common

- law rule that only the prosecutor could e xercise the power to enter a nolle prosequi. Rather, the statute was enacted primarily to protect defendants by not allowing prosecutors to exercise this power unless the reasons therefor were stated on the record and leave of the court was obtained and re corded. While the statute, by requiring the trial court’s permission, does effect some infringement on the prosecutor’s exclusive common

- law power, the initial decision as to whether or not to enter a nolle prosequi nevertheless remains an executive functi on and a part of the duties of the prosecutor. [ People v Heiler , 79 Mich App 714, 718

- 719; 262 NW2d 890 (1977) quoting People v Nelson , 66 Mich App 60, 64; 238 NW2d 201 (1975).] 6

I cite Grove 7 not because I misperceive it as discussing a nolle prosequi mo tion

, but because it offer s in sight into the purpose and scope of MCL 767.29

. There, the C ourt wrote:
this statute reflects a legislative understanding of the trial judge ’ s role in ensuring that the public ’ s interest in bringing criminals to justice is not defeated by unconstitutional, illegal, or ultra vires acts by the prosecutor. The authority to impose sentence [sic] is vested exclusively in the trial courts. Were the prosecutor and defendant able to compel the trial judge to accept an underlying pl ea in the presence of a sentence recommendation, no matter how severe the departure from the original charge and its sentencing framework, the interests served by the nolle prosequi statute would be defeated. Moreover, like the nolle prosequi statute, the trial judge ’ s authority to decide whether to accept or reject a plea, while reviewable for an abuse of discretion, encourages the prosecutor to carefully consider the relevant facts when initially exercising prosecutorial charging discretion. [ People v Gr ove , 455 Mich 439, 459; 566 NW2d 547 (1997) ].

Both Grove and People v McCartney

, 72 Mich App 580, 585; 250 NW2d 135 (1976)

, emphasize the judge’s role in protecting the public’s interst in reviewing a n olle prosequi motion. As in this case

, the parties in McCartney concurred with the motion and the trial court’s declination was upheld. “ The trial court was particularly interested in seeing that justice was done and in achieving a determination as to ‘whether or not the defendant had served two and a hal f years in

6 MCL 767.29 was intended for the protection of the defendant by preventing repeated dismissals and subsequent reinstitution of the charges against him resulting in “endless vexations” in the prosecution of criminal cases. People v Curtis , 389 Mich 698, 705; 209 NW2d 243 (1973) . See also Rinaldi v United States , 434 US 22, 29 n 15; 98 S Ct 81; 54 L Ed 2d 207 (1977) (“ The principal object of the ‘ leave of court ’ requirement is apparently to protect a defendant against prosecutorial harassment, e. g., charging, dismissing, and re charging, when the Government moves to dismiss an indictment over the defendant's objection. ”).

7 People v Grove , 455 Mich 439, 460; 566 NW2d 547 (1997), superseded by statute on other grounds as stated in People v Franklin ; 491 Mich 916; 813 NW2d 285 (201 2).- 6

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state prison as an innocent man or as a guilty man’. ” Id . at 589 (citation omitted)

. I acknowledge tha t the pr o secution’s independent basis for the motion was not articulated in McCartney , unlike in this case. I do not in any way believe tha t anyone, not the parties nor the trial court , took this case lightly as the opinion asserted was done in McCartney

. Rather, Grove and McCartney are cited to underscore that the tr i al court is not required to automatically grant such a motion .

It is important to focus on when the prosecution asked for dismissal in the instant case

. The trial court twice rejected proposed pleas that included sentencing agreements. No motion was filed after those rejections. Only after the court held a multi

- day hear ing

, made findings of fact

, and reached a conclusion of law under MCL 769.1 and MCR 6.931 was the motion made. A party aggrieved by a judicial decision has the right to appe al that decision. In People v Hazzard

, 206 Mich App 658 ; 522 NW2d 910 (1994)

, s u ch an appeal was successfully prosecuted as it has been in numerous unpublished cases. While the briefs in this case from the prosecutor and the defense disagree with the trial court ’ s decision to decline juvenile status, they did not argue that the judge ’ s fact fin d ing was erroneous. They did not assert an abuse of d iscretion

. Instead

, they attempted to circumvent direct appeal of that decision by filing the n olle prosequi motion to refi le the case as a juvenile petition where adult punishment was not p ossible. The court afforded the defendants their right to withdraw their plea s. T his is

, as was noted in People v Malotunis

, 60 Mich A pp 143 ; 230 NW2d 347 (1975)

, one o f those “situations in which the public interest and the proper administration of justice justify such a decision.” Id . at 148

- 149

. I understand that the only temporal constraint on the prosecutor’s request to abandon prosecution under a nolle prosequi recognize d by law is “upon an indictment”. MCL 767.29; Genesee Co Prosecutor v Genesee Circuit Judge , 391 Mich 115, 120 n 10 ; 215 NW2d 145 (1974)

. However

, the timing in this case supports the tr ial court’s determination that the purpose of the motion was to c ircumvent, rather than appeal a court ruling

. It is that attempt that is ultra vires. I would affirm.

/s/ Cynthia Diane Stephens