Michigan Supreme Court Lansing, Michigan

Marilyn Kelly,
Chief Justice

Michael F. Cavanag h

Maura D. Corriga n Robert P. Young, Jr. Stephen J. Markma n Diane M. Hathawa y A lton Thomas Davis,
J ustices 

# Order

October 15, 2010

141309

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant,

v SC: 141309 COA: 290344 Newaygo CC: 2002-007769-FH JUSTIN JAMES SCHULTZ, Defendant-Appellee.

________________ _______________ __________/

On order of the Court, the applicati on for leave to appeal the May 4, 2010 judgment of the Court of Appeals is consid ered, and it is DENIED, because we are not persuaded that the question presented s hould be reviewed by this Court.

C ORRIGAN , J. ( dissenting ).

I respectfully dissent from the Court’s or der denying the prosecution’s application for leave to appeal. I believe that the C ourt of Appeals may have erred in holding that

the trial court abused its discretion in se tting aside the order expunging defendant’s involuntary manslaughter conviction. I woul d grant leave to appeal to consider the

matter.

In 2002, defendant pleaded no contest to in voluntary manslaughter as a result of an altercation in which defendant, after cons uming alcohol at a party, punched the victim who fell down a stairwell and suffered injuries resulting in his death. The trial court sentenced defendant to a term of three ye ars probation in January 2003, and defendant was later discharged from pr obation in January 2006.

In February 2008, the trial court granted defenda nt’s petition under MCL 780.621 to set aside his involuntary manslaughter conviction. Several months thereafter, defendant was arrested and charged with a ggravated assault for punching a man at a wedding reception. According to the prosecutio n, the incident was quite similar to the

2002 incident because defendant had been consuming alcohol and “sucker punched” a

man he did not know. Defendant subsequently pleaded guilty to aggravated assault.2

The prosecution then filed a motion for relief from judgment under MCR 2.612, requesting the trial court to reinstate defend ant’s involuntary manslaughter conviction. The trial court granted the motion unde r MCR 2.612(C)(1)(c), which provides in pertinent part:

(1) On motion and on just terms, th e court may relieve a party or the legal representative of a party from a final judgment, order, or proceeding on the following grounds:

* * *

(c) Fraud (intrinsic or extrinsi c), misrepresentation, or other misconduct of an adverse party.

The trial court reasoned that a failure to grant the prosecution’s motion would “be essentially a fraud on th e public.” Transcript of Motion Hearing, September 30, 2008, p 14. The Court of Appeals revers ed on the basis that the trial court abused its discretion in setting aside the expungement order on th e basis of MCR 2.612(C)(1)(c). The prosecution then sought leave to appeal with this Court.

I agree with the Court of Appeals that the prosecution did not es tablish evidence of fraud, misrepresentation, or other mi sconduct within th e meaning of MCR 2.612(C)(1)(c). However, MCR 2.612(C)(1)(f) perm its a trial court to grant a motion for relief from judgment for “[a]ny other reason justifying relie f from the operation of the judgment.” Further, MCL 780.621 pr ovides, in relevant part:

(1) Except as provided in subsection (2), a person who is convicted of not more than 1 offense may file an application with the convicting court for the entry of an order setting aside the conviction.

* * *

(9) If the court determines that the circumstances and behavior of the applicant from the date of the appli cant's conviction to the filing of the application warrant setting aside the conviction and that setting aside the conviction is consistent with the pub lic welfare, the court may enter an order setting aside the conviction. The setting aside of a conviction under this act is a privilege and co nditional and is not a right . [Emphasis added.]

In my view, the language of MCL 780.621( 9), which sets forth that “[t]he setting

aside of a conviction un der this act is a privilege and conditional and is not a right,” permits a trial court discreti on to reinstate an expunged co nviction. Therefore, under MCR 2.612(C)(1)(f), and in light of the language in MCL 780.621(9), the trial court’s decision to set aside the order expunging defendant’s involuntary manslaughter

conviction was within the range of principled outcomes when considering defendant’sI, Corbin R. Davis, Clerk of the Mi chigan Supreme Cour t, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court.

_______________________________________ __ Clerk October 15, 2010

p1012 3

subsequent conviction of an additional offense in volving assault. See People v

Blackston , 481 Mich 451, 467 (2008). Thus, despite its failure to cite to the appropriate provision of the court rule, the trial court di d not abuse its discretion. Accordingly, I respectfully dissent from this Court’s orde r denying leave to appeal and would grant

leave.