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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UNPUBLISHED

September 19, 2017

v No. 331489

Oakland Circuit Court

JAMES ORDELL KEYS III, LC No. 2003-193893-FH

Defendant-Appellant.

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 331490

Oakland Circuit Court

JAMES ORDELL KEYS III, LC No. 2004-198075-FH

Defendant-Appellant.

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee,

v No. 331493

Oakland Circuit Court

JAMES ORDELL KEYS III, LC No. 2004-198098-FH

Defendant-Appellant.

Before: GADOLA, P.J., and METER and FORT HOOD, JJ.

PER CURIAM.

These consolidated appeals come before this Court pursuant to an order of the Michigan 

Supreme Court remanding all three cases for consideration as on leave granted. 500 Mich 878; 

886 NW2d 439 (2016). Defendant pleaded guilty to violations of probation with respect to all 

three appeals. The trial court revoked defendant’s probation and sentenced him in all three cases 
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to 4 to 20 years’ imprisonment for delivery or manufacture of less than 50 grams of a controlled 

substance, MCL 333.7401(2)(a)(iv), in Docket No. 331489 to two to five years’ imprisonment

for third-degree fleeing and eluding, MCL 750.479a(3), two to four years’ imprisonment for 

malicious destruction of police property, MCL 750.377b, and in Docket No. 331493 to two to 

four years’ imprisonment for delivery or manufacture of marijuana, MCL 333.7401(2)(d)(iii), 

with all sentences to be served concurrently. We affirm.

I. PROCEDURAL HISTORY

In Docket No. 331489, defendant pleaded guilty on September 8, 2004 to delivery or 

manufacture of less than 50 grams of a controlled substance, MCL 333.7401(2)(a)(iv); thirddegree fleeing and eluding, MCL 750.479a(3); malicious destruction of police property, MCL 

750.377b; possession of marijuana, MCL 333.7403(2)(d); and operating a vehicle without a 

license, MCL 257.904. In Docket No. 331490, defendant pleaded guilty to delivery of less than 

50 grams of a controlled substance, MCL 333.7401(2)(a)(iv); and possession of marijuana, MCL 

333.7403(2)(d). In Docket No. 331493, defendant pleaded guilty to delivery or manufacture of 

less than 50 grams of a controlled substance, MCL 333.7401(2)(a)(iv); delivery of marijuana, 

MCL 333.7401(2)(d)(iii); and driving while license suspended – second or subsequent offense, 

MCL 257.904(3)(b). On September 22, 2004, defendant was sentenced to concurrent terms of 

273 days in jail for each of the offenses (other than the operating a vehicle without a license for 

which defendant was sentenced to a concurrent 90-day term in jail), and to two years’ probation. 

Probation orders were entered on October 7, 2004. As a condition of probation, defendant was 

to refrain from violating any criminal law, report to his probation officer monthly (or as often as 

the probation officer directed), and make monthly payments towards restitution, costs, and fees.

On September 19, 2005, defendant’s probation officer filed a Report of Nonpayment of 

Restitution indicating that defendant had failed to pay an arrearage of $832 in restitution. The 

Report further stated:

The defendant has been unemployed since his release from treatment. He has 

made no payments toward costs and is currently being violated [sic] for new 

criminal behavior and non payment.

On October 14, 2005, an appearance notice was filed in the trial court directing defendant to 

appear in court on October 26, 2005 for a violation of probation arraignment. The hearing was 

adjourned and bench warrants were subsequently entered on April 3, 2006 indicating that 

defendant had failed to appear as ordered for a violation of probation hearing on November 9, 

2005.

Defendant was apprehended in Wayne County in November of 2014 on unrelated 

criminal charges. Ultimately, he pleaded guilty to probation violations, acknowledging that he 

had failed to report and had been convicted of new criminal activity, and was sentenced. 

Subsequently, he brought a motion seeking to correct what he characterized as an invalid 

sentence, which was denied. These consolidated appeals followed.

II. TRIAL COURT’S JURISDICTION
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Defendant first claims that the trial court lacked jurisdiction to revoke his probation, 

asserting that probation revocation proceedings did not commence before defendant’s term of 

probation expired. We disagree.

MCL 771.4 provides, in pertinent part, as follows:

It is the intent of the legislature that the granting of probation is a matter of 

grace conferring no vested right to its continuance. If during the probation period 

the sentencing court determines that the probationer is likely again to engage in 

an offensive or criminal course of conduct or that the public good requires 

revocation of probation, the court may revoke probation. All probation orders 

are revocable in any manner the court that imposed probation considers 

applicable either for a violation or attempted violation of a probation condition 

or for any other type of antisocial conduct or action on the probationer’s part for 

which the court determines that revocation is proper in the public interest. 

[Emphasis supplied.]

As this Court observed in People v Glenn-Powers, 296 Mich App 494, 502; 823 NW2d 

127 (2012), citing People v Johnson, 210 Mich App 630, 634; 534 NW2d 255 (1995): 

“Probation is a matter of legislative grace. . . . Because it is a matter of grace, a defendant has no 

vested right to its continuance and the probation order remains at all times revocable and 

amendable.” (Footnotes omitted.) This Court summarized in People v Ritter, 186 Mich App 

701, 705-706; 464 NW2d 919 (1991):

Revocation of probation is not a part of a criminal prosecution. It deprives 

the defendant of only conditional liberty which is properly dependent on 

observance of the terms of the probation order, rather than the absolute liberty to 

which every citizen is entitled. The defendant is a probationer only because he 

has been convicted of a crime. He is not entitled to the full range of due process 

rights associated with a criminal trial. Due process requires only that the 

revocation proceedings be conducted in a fundamentally fair manner. [Citations 

omitted.] 

In Ritter, the defendant was sentenced to a three-year term of probation on August 17, 

1982. He pleaded guilty on July 31, 1985 to a violation of that probation and it was extended for 

an additional two years. On January 30, 1987, the court issued a petition and bench warrant for 

the defendant’s arrest based on allegations that he had violated the terms of his probation by 

failing to report to his probation officer and by failing to pay costs, attorney fees, and restitution. 

He subsequently left the state and was convicted of a crime in South Carolina. An amended 

petition and bench warrant were filed on October 26, 1988, reciting the original allegations as 

well as that he had been convicted of a felony in another state. The defendant returned to 

Michigan and was found guilty on December 6, 1988 of violating his probation. On January 6, 

1989, the court sentenced him to prison for the underlying conviction. Id. at 704-705. On 

appeal, the defendant claimed that the sentencing court lacked jurisdiction to revoke his 

probation and impose a sentence on the underlying felony conviction since it lost jurisdiction 
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over him when his term of probation expired on August 13, 1987. Id. at 705. This Court 

disagreed:

The original petition and bench warrant against defendant alleging 

violation of the terms of his probation were issued by the sentencing court on 

January 30, 1987, more than seven months before defendant’s probation expired. 

Michigan courts have traditionally held that the sentencing court retains 

jurisdiction to revoke a defendant’s probation if probation revocation 

proceedings are commenced within the probation period and are pending when it 

expires. [Ritter, 186 Mich App at 706 (emphasis added; citations omitted).]

The defendant further claimed that MCL 771.4 did not allow the trial court to revoke 

probation beyond the statutory five-year period set forth in MCL 771.2(1). Ritter, 186 Mich App 

at 706-707. This Court again disagreed and observed:

If adopted, defendant’s interpretation of [MCL 771.4]1 can only result in 

the absurd consequence that any defendant who violates the terms of his probation 

may do so with impunity so long as he manages to evade apprehension until the 

maximum statutory period of probation [set forth in MCL 771.2] expires. We 

cannot conceive that the Legislature intended such a result and will not construe 

MCL 771.4 to require it. We must construe the statute sensibly in order to avoid 

absurd or unjust results. . . .

Rather, we adopt a construction of the statute which best harmonizes the 

overall context of the probation statutes and the end sought to be achieved. . . . A 

convicted defendant has no vested right in the continuance of his probation if he 

violates its conditions. . . . The probation statutes confer upon the sentencing 

court a broad range of discretionary power in handling all aspects of the 

probationary process. Defendant presents no persuasive reason for limiting the 

court’s discretion in the area of probation revocation, nor do we discern such a 

reason. Therefore, we conclude that MCL 771.4 must be construed to authorize 

the sentencing court to revoke a defendant’s probation, limited only by the 

requirement that the decision to revoke be based on violations which occur during 

the probationary period.

Our conclusion is reinforced by MCR 6.445(A) which authorizes the 

sentencing court to issue a summons to appear or an arrest warrant upon “finding 

probable cause to believe that a probationer has violated a condition of 

probation.” Thus, we may logically construe the statutory phrase [in the 

predecessor version of MCL 771.4] “[i]f during the period of probation it appears 

to the sentencing court’s satisfaction” to require only that during the probation 

 1 While Ritter involved a predecessor version of MCL 771.4, any revisions to the statutory 

language are not dispositive in our analysis. 
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period the court find that probable cause exists to believe that the defendant has 

violated his probation in order to justify issuance of a petition to revoke probation 

and a warrant for the defendant’s arrest. As discussed above, a petition was filed 

against defendant on January 30, 1987, for violations of the probation order which 

occurred in November and December 1986. Therefore, we conclude that the trial 

court had jurisdiction to revoke defendant’s probation in October 1988 despite the 

fact that his probation expired on August 13, 1987. [Ritter, 186 Mich App at 707-

708 (citations and footnote omitted).]

This Court’s decision in Ritter was consistent with People v Hodges, 231 Mich 656; 204 

NW 801 (1925), where a few weeks before the defendant’s term of probation was to expire, the 

sheriff filed an application to have it revoked because the defendant had violated his probation 

by being convicted of a criminal offense. The revocation proceeding was adjourned to a date 

just past the expiration date of the defendant’s probation. After the defendant was sentenced on 

the original charge, he moved to set aside the sentence, arguing that it was imposed after the term 

of probation had expired. Id. at 657-658. Responding to the defendant’s claim that the 

revocation order was not actually entered until after the expiration of the original term of 

probation, our Supreme Court stated:

If no action had been taken during the period of probation a more serious question 

would be presented. But here the petition to revoke the probation was filed within 

the period of probation and we think it must be held that the filing of this petition 

within the period of probation gave the court jurisdiction which was not lost by a 

reasonable delay incident to a hearing upon it. Had objection been made to an 

adjournment the court could then have passed sentence and no question could 

have been raised to its validity. . . . The fact that a witness was ill, or time was 

given defendant to prepare for a hearing, or the work of the court necessitated a 

delay, or for other good reason an adjournment was necessary, did not oust the 

court of jurisdiction to act upon a petition seasonably filed. [Hodges, 231 Mich at 

660-661 (citation omitted).]

In People v Wakefield, 46 Mich App 97, 98; 207 NW2d 461 (1973), the defendant was 

placed on a two-year term of probation for a misdemeanor offense for which the possible 

probationary period could not exceed two years. A notice of probation violation was filed three 

days after the two-year period expired and a hearing was promptly held, but nothing else 

happened until approximately six years later after the defendant was arraigned on a warrant. Id. 

at 98-99. Despite the defendant’s protests that he had paid the costs owed and that the delay in 

proceeding against him had violated his rights, the court found that he had violated his probation 

and sentenced him to prison. Id. at 99. Noting that proceedings against him for violating 

probation had not been filed until three days after the probationary period had ended, this Court 

reversed the defendant’s sentence and declared:

Absent a showing that revocation proceedings were pending at the end of 

the two-year period of probation, we are constrained to rule that the trial court lost 
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jurisdiction of the defendant and could not thereafter sentence him to prison. [Id. 

at 100.]

In People v Valentin, 220 Mich App 401; 559 NW2d 396 (1996), aff’d 457 Mich 1 

(1998), the juvenile defendant was sentenced to probation. He was later convicted of a crime

and his probation was revoked. This Court, citing Ritter, determined that the failure to hold a 

commitment review hearing - a failure that violated statutory and court rule requirements - did 

not deprive the trial court of jurisdiction to revoke the defendant’s probation where the probation 

revocation proceedings commenced before the defendant’s term of probation expired. Id. at 407-

408.

Additional caselaw subsequent to Ritter supports that decision. In People v Glass, 288 

Mich App 399, 400; 794 NW2d 49 (2010), the defendant pleaded guilty in May of 2004 and was 

sentenced in July of 2004 to a two-year term of probation. In February of 2008, he was found 

guilty of violating the terms of his probation and sentenced to prison. Id. The trial court claimed 

it had jurisdiction to revoke the defendant’s probation based on People v Marks, 340 Mich 495; 

65 NW2d 698 (1954), where our Supreme Court had determined that a trial court possessed 

authority pursuant to the predecessor to MCL 771.2 to modify a term of probation any time 

during the statutory five-year period that could have been imposed pursuant to the statute. Glass, 

288 Mich App at 401-402. However, this Court held that the Marks decision was not applicable 

because the trial court had not, as in Marks, altered or amended the defendant’s term of 

probation, but instead had revoked the probation, and caselaw had declared “that a probation 

revocation must occur, or must at least have been commenced, during the probation period.” Id. 

at 403. This Court noted that MCL 771.4 provides that “[i]f during the probation period the 

sentencing court determines that the probationer is likely again to engage in an offensive or 

criminal course of conduct or that the public good requires revocation of probation, the court 

may revoke probation.” Glass, 288 Mich App at 403-404, citing MCL 771.4. The Glass Court

also considered the application of Hodges, Ritter, Wakefield, and Valentin, and concluded:

The authorities we have examined . . . lead us to the inexorable conclusion 

in this case that the circuit court lacked jurisdiction to revoke defendant’s 

probation and impose a prison sentence. The circuit court sentenced defendant to 

a two-year probation period that expired on June 23, 2006. The court did not sign 

the bench warrant for defendant’s arrest for violating the conditions of his 

probation until February 20, 2007, at the earliest, and the court clerk did not file 

the warrant until March 2, 2007. Because defendant’s probation period had 

already expired well before any probation revocation proceedings had 

commenced, the circuit court did not possess jurisdiction to revoke defendant’s 

probation and sentence him to imprisonment. [Glass, 288 Mich App at 408.]

Thus, the above authority illustrates that the critical issue is whether probation revocation 

proceedings have commenced before a defendant’s term of probation has concluded. In this 

case, defendant’s term of probation commenced on September 22, 2004. According to the 

probation agent’s statement in the Case Report,
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[o]n July 22, 2005 Agent Tracy Budnick authored a Violation of Probation 

Report charging the defendant with 1) Failure to remain crime free, 2) Failure to 

make court ordered payments, and 3) Failure to maintain full-time employment.

On September 19, 2005, defendant’s probation officer filed a Report of Nonpayment of 

Restitution indicating that defendant had failed to pay an arrearage of $832 in restitution as 

ordered. The document also noted that new criminal charges had been filed against defendant. 

An appearance notice was filed on October 14, 2005, directing defendant to appear in court on 

October 26, 2005. Defendant appeared on October 26, 2005, counsel was appointed to represent 

him, and the matter was adjourned until November 9, 2005, for discovery and further 

investigation. On April 3, 2006, bench warrants were filed in all three cases asserting that 

“defendant failed to appear as ordered in court for VOP HEARING on November 9, 2005 before 

this court.” All these proceedings occurred well before defendant’s two-year term of probation 

expired on September 22, 2006. Accordingly, consistent with Hodges, Ritter, and Valentin, 

defendant’s decision not to attend the probation violation hearing on November 9, 2005 did not 

serve to divest the trial court of jurisdiction over defendant for the purpose of revoking his 

probation.

Defendant acknowledges these facts, but claims that the trial court did not “issue a 

warrant during the probationary period.” Defendant acknowledges that the records disclose that 

the trial court issued a warrant for failure to appear at a show cause hearing, but he claims, 

without supporting authority, that this warrant was not a warrant for a probation violation or an 

order extending the term of probation, and therefore did not either commence the probation 

revocation proceedings or extend the term of probation. However, defendant’s statement that 

“[t]he trial court did not issue a warrant during the probationary period” is plainly false. The trial 

court issued a bench warrant for defendant’s failure to appear, not at a “show cause” hearing, but 

at a violation of probation hearing. The lower court’s register of actions indicates that the 

adjourned date of November 9, 2005 was for a “VOP” – a “violation of probation.” Moreover, 

the transcript of the January 20, 2016 hearing on defendant’s motion to correct an invalid 

sentence indicates that defendant appeared on the initial notice date of October 26, 2005, and that 

the matter was adjourned until November 9, 2005 for further discovery and investigation. 

Defendant then failed to appear on November 9, 2005. According to the court’s register of 

actions, the court directed on November 9, 2005 that a bench warrant should issue for “VOP.” 

The bench warrant was signed on March 31, 2006 and filed with the clerk’s office on April 3, 

2006. On the face of each warrant was the statement that the bench warrant had issued “for the 

reason that the defendant failed to appear as ordered in court for [a] VOP HEARING on 

November 9, 2005.” All of these acts served to commence the revocation of probation 

proceedings well before defendant’s term of probation expired. Moreover, defendant’s 

argument, in effect, urges this Court to adopt an absurd result. As this Court reasoned in Ritter, 

186 Mich App at 707:

If adopted, defendant’s interpretation of the relevant statute can only result 

in the absurd consequence that any defendant who violates the terms of his 

probation may do so with impunity so long as he manages to evade apprehension 

until the maximum statutory period of probation expires. We cannot conceive 

that the Legislature intended such a result . . . .
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Defendant also claims that the documents that were sent to him by the probation 

department did not initiate the probation revocation proceedings because the summons and the 

warrant did not comply with the requirements of the court rules. Thus, in defendant’s view, the 

probation revocation proceedings were not “pending” when he was eventually arrested on other 

criminal charges and when his probation was subsequently revoked. Defendant bases this 

argument on MCR 6.445, which provides, in pertinent part:

(A) Issuance of Summons; Warrant. On finding probable cause to 

believe that a probationer has violated a condition of probation, the court may

(1) issue a summons in accordance with MCR 6.103(B) and (C) for the 

probationer to appear for arraignment on the alleged violation, or

(2) issue a warrant for the arrest of the probationer.2

This court rule references MCR 6.103(B) and (C). MCR 6.103 provides, in pertinent part, as 

follows:

(B) Form. A summons must contain the same information as an arrest 

warrant, except that it should summon the accused to appear before a designated 

court at a stated time and place.

(C) Service and Return of Summons. A summons may be served by

(1) delivering a copy to the named individual; or

(2) leaving a copy with a person of suitable age and discretion at the 

individual’s home or usual place of abode; or

(3) mailing a copy to the individual’s last known address.

Service should be made promptly to give the accused adequate notice of 

the appearance date. The person serving the summons must make a return 

to the court before which the person is summoned to appear.

Additionally, MCR 6.102 provides, in pertinent part, as follows: 

(C) Contents of Warrant; Court’s Subscription. A warrant must

 2 This Court notes that MCR 6.445(A)(1) requires adherence to MCR 6.103, but a similar 

provision does not appear in MCR 6.445(A)(2) regarding the issuance of a warrant for a 

probationer’s arrest. This suggests that a warrant does not have to comply with the requirements 

of MCR 6.103. Therefore, defendant’s argument that the warrant was defective because it did 

not comply with MCR 6.445 and MCR 6.103 is not supported by the plain language of those 

court rules.
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(1) contain the accused’s name, if known, or an identifying name or 

description;

(2) describe the offense charged in the complaint;

(3) command a peace officer or other person authorized by law to arrest 

and bring the accused before a judicial officer of the judicial district in 

which the offense allegedly was committed or some other designated 

court; and

(4) be signed by the court.

Initially, we note that nothing in MCR 6.445, MCR 6.102 or MCR 6.103 indicates that 

any technical noncompliance will deprive the court of jurisdiction over the defendant or will 

prevent the court from initiating valid probation revocation proceedings against a defendant. 

Also, the record reflects that the summons complied with the requirements of the applicable 

court rules. Apparently, the probation officer’s summons had the desired effect of causing 

defendant to appear in court on October 26, 2005. Defendant has not alleged that at the time of 

his appearance he challenged the sufficiency of the summons or claimed that it did not satisfy the 

requirements of the court rules.

Subsequently, defendant failed to appear for the adjourned violation of probation hearing 

on November 9, 2005. At that time a bench warrant was requested and the court subsequently 

issued the requested warrant in each case. The warrants recited defendant’s name, they were 

signed by the court, and they commanded a peace officer to arrest defendant and bring him 

before the court. Moreover, the applicable court rules do not specify the requisite detail required 

and defendant has failed to provide authority that sets out the nature of the required description. 

An appellant may not merely announce his position and leave it to this Court to 

discover and rationalize the basis for his claims, nor may he give only cursory 

treatment with little or no citation of supporting authority. An appellant’s failure 

to properly address the merits of his assertion of error constitutes abandonment of 

the issue. [People v Konopka (On Remand), 309 Mich App 345, 366; 869 NW2d 

651 (2015) (citations and quotation marks omitted).]

Regardless, the detail sufficed. The bench warrants listed the underlying charges to 

which defendant had previously pleaded guilty and for which he had been sentenced. The 

warrants further commanded the police to arrest defendant for his failure to appear for a violation 

of probation hearing on November 9, 2005. This description was sufficient to alert defendant 

regarding why he was being arrested. The warrant is meant to function as an initial notice to a 

defendant by providing him with the basic information about the reason for his arrest; it is not 

meant to function as a comprehensive explanation of all the relevant information that he might 

eventually need to know. However, it appears that defendant was advised that the bench warrant 

was being issued based on defendant’s (1) failure to remain crime free, (2) failure to make courtordered payments, and (3) failure to maintain full employment. Considered together, the 

documents provided were sufficient to comply with the requirements of the applicable court 

rules.
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Notably, defendant did not object to the form or sufficiency of the summons when he first 

appeared in court on October 26, 2005, and he failed to object to the form or sufficiency of the 

warrant when he appeared before the court on December 17, 2014, after having been arrested, or 

on February 25, 2015, before he pleaded guilty to the probation violations. This failure deprived 

the court of any opportunity to address or correct any defects that might have existed. People v 

Pipes, 475 Mich 267, 277; 715 NW2d 290 (2006). Because defendant failed to object before 

pleading guilty, and because he has failed to provide any authority to support his claim that the 

summons or the warrant were insufficient, he has waived any claim that the summons or the 

warrant did not comport with the minimal requirements of the applicable court rules.

We conclude that (1) the probation officer and the trial court filed documents sufficient to 

commence the violation of probation proceedings, (2) those proceedings clearly commenced 

with the scheduled court appearances on October 26, 2005, and November 9, 2005, (3) 

defendant’s failure to appear on November 9, 2005 resulted in the issuance of a bench warrant 

more than six months before defendant’s term of probation expired, and (4) the trial court was 

therefore not deprived of jurisdiction to continue the probation revocation proceedings when 

defendant was eventually apprehended and brought before the court.

III. DUE DILIGENCE IN THE EXECUTION OF THE BENCH WARRANT

Defendant also contends that the delay in executing the bench warrant constituted a 

waiver of the probation violation and entitles him to have his sentence vacated. He further 

claims that counsel was ineffective for failing to challenge the validity of the probation violation 

proceeding on these grounds. We disagree.

The issue, as posed by defendant, is whether the probation authorities exercised due 

diligence to execute the warrant where defendant was arrested nine years after the warrant 

issued, and then only because he was arrested on other charges. We review the trial court’s 

determination concerning the probation authorities’ exercise of due diligence in executing the 

bench warrant for an abuse of discretion. cf. People v Bean, 457 Mich 677, 684; 580 NW2d 390 

(1998) (recognizing that a trial court’s determination regarding whether the prosecution 

exercised diligence and acted in good faith to produce a witness for trial is reviewed for an abuse 

of discretion). 

Once a bench warrant has been issued, the authorities charged with its execution have a 

duty to exercise due diligence to execute the warrant. People v Ortman, 209 Mich App 251, 254; 

530 NW2d 161 (1995). This Court stated in People v Miller, 77 Mich App 381, 384; 258 NW2d 

235 (1977), in pertinent, part, as follows:

[t]o ascertain whether the authorities exercised due diligence between the 

incident allegedly violating probation and the issuing of the probation violation 

notice, we consider it appropriate to refer to the guidelines established by our 

Supreme Court in the speedy trial cases. In People v Collins, [388 Mich 680; 202 

NW2d 769 (1972)], the Court cited the factors to be taken into account in 
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deciding whether a defendant has been deprived of his right to a speedy trial, 

three of which are relevant here: length of delay, reason for delay and prejudice 

to the defendant.3 [Footnote added.] 

This Court cited these three factors in Ortman, 209 Mich App at 255, as the factors that should 

be analyzed “in determining whether the probation authorities exercised due diligence in 

executing the warrant.” 

The length of the delay in this case is approximately nine years. While we acknowledge 

the length of the delay, we are not persuaded that length alone, or length of a particular duration, 

is automatically indicative of a lack of due diligence.4 Moreover, the trial court found that the 

reason for the delay was largely the fact that defendant absconded. The trial court expressly 

noted that “[d]efendant presents no evidence showing that the People could have and should 

have located and arrested him sooner.” This remains true on appeal. Without credible 

evidentiary support, defendant simply asserts that the authorities were aware of his whereabouts 

and did not act in a timely manner to apprehend him. 

In support of his assertion that the authorities knew his whereabouts, defendant has 

presented a Request and Writ for Garnishment form. However, there is no indication in the 

record that (1) defendant was actually in fact served with the form, (2) defendant resided at the 

address listed on the form, or (3) defendant appeared or objected to the garnishment. It is also 

not clear what the basis for the garnishment was and defendant has not established anything else 

about the garnishment other than that a writ was issued.5 Further, the information defendant has 

 3 A defendant may incur prejudice in two ways, to his person and to the defense. People v 

Williams, 475 Mich 245, 264; 716 NW2d 208 (2006). 

4 Defendant points to People v Hanson, 178 Mich App 507, 510; 444 NW2d 175 (1989) (opinion 

by MAHER, J.), where Judge MAHER opined that a twenty-seven-week time period between the 

issuance of a bench warrant and its execution was “unreasonable on its face.” However, Judge 

MAHER went on to note, in an opinion with which Judge REILLY concurred in result only, that 

“jurisdiction to try the case is not lost if the authorities acted with due diligence in attempting to 

execute the warrant.” Id. (opinion by MAHER, J.). In her concurring opinion, Judge REILLY 

stated that she “reject[ed] Judge MAHER’S statement that the twenty-seven-week delay was 

‘unreasonable on its face.’” Id. at 514 (opinion by REILLY, J.). In Judge REILLY’S view, the 

determination was best left to the factfinder on remand. Id. (opinion by REILLY, J.). Another 

case defendant cites, People v Gunnar, 61 Mich App 569, 570; 233 NW2d 87 (1975), is 

distinguishable on its facts where the Court recognized that the probation department was in 

possession of the defendant’s address, but did not act to arrest the defendant for almost a year. 

5 With respect to defendant’s reference to a pending Oakland County Friend of the Court matter, 

the probation department’s case report includes a statement concerning an outstanding civil 

warrant for child neglect issued out of the Oakland County Circuit Court on October 25, 2011. 

However, there is nothing in the existing record to confirm that the probation authorities were 

aware of defendant’s whereabouts as a result of the child neglect warrant. 
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presented in support of his contention that the authorities ought to have ascertained his location 

concern Oakland County: his initial arrest on charges in the three cases involved in these 

combined appeals, the additional offenses allegedly committed in 2005 that formed part of the 

basis for the probation department’s 2005 action to violate defendant’s probation, the tax 

garnishment, and a Friend of the Court action. But when defendant was finally located in 2014, 

it was not in Oakland County, but rather in neighboring Wayne County. Additionally, there has 

been no showing that defendant was known to be a resident of Wayne County before his 2014 

arrest. Notably, defendant does not dispute that he failed to appear for the adjourned violation of 

probation hearing on November 9, 2005, and that he never subsequently contacted either the trial 

court or his probation officer. Consequently, this was more than sufficient to show that 

defendant absconded and that he was avoiding legal process. From all that appears in the present 

record, defendant was “living off the grid.” Defendant apparently changed his residence to a 

different, undisclosed location in a neighboring county and managed to successfully avoid 

involvement with the authorities until 2014. His success in avoiding arrest should not be 

rewarded with a finding that the authorities were not duly diligent in executing a bench warrant 

because they failed to find defendant’s hiding place. The present case is thus distinguishable 

from Ortman, where the record in that case reflected that the defendant had lived at the same 

house for over 20 years, had not “changed his name, moved, or otherwise attempted to evade the 

probation authorities[,]” and the probation authorities did not provide a reason for the delay in 

arresting the defendant. Ortman, 209 Mich App at 254. 

Defendant claims that he suffered prejudice because “it is unclear what charges of 

probation violation would have been brought in 2005, nor Mr. Key’s defenses” and “the 

allegation of new criminal conduct appears to stem from charges resulting from his 2014 arrest.” 

Contrary to defendant’s claim, the charges of probation violation he faced in 2005 were clearly 

spelled out in documents in the lower court record, as defendant had failed (1) to make required 

restitution payments, (2) to be employed, and (3) to avoid committing a new crime. Defendant 

also claims that “[t]he allegations of failure to report are unexplained.” However, defendant does 

not dispute that he did not report to his probation agent, so this claim is contradicted by the clear 

evidence in the record. Finally, defendant asserts that he was prejudiced because of “the 

additional charge of ‘new criminal conduct,’ which had not actually occurred during the original 

period of probation.” Essentially, defendant is claiming that he suffered prejudice because, by 

failing to apprehend him sooner, the probation authorities allowed defendant to continue to break 

the law, which resulted in his being charged with new felony criminal offenses. Defendant 

cannot blame the probation authorities for his own decision to continue his criminal conduct; this 

clearly does not establish prejudice arising from the probation authorities’ lack of due diligence.6 

We note that while the delay at issue was lengthy, the reason for the delay was attributable 

primarily to defendant’s behavior, and defendant has failed to establish any prejudice from the 

delay. Therefore, the trial court did not abuse its discretion in declining defendant’s request to 

correct what defendant characterized as an invalid sentence. 

 6 The prosecution also correctly observes that defendant was not incarcerated during the nineyear delay and so did not suffer any prejudice to his person. People v Gilmore II, 222 Mich App 

442, 462; 564 NW2d 158 (1997). 
-13-

With respect to defendant’s claim that he was deprived of his right to the effective 

assistance of counsel by his counsel’s failure to challenge the trial court’s alleged lack of 

jurisdiction where the probation authorities did not act with due diligence, this claim is without 

merit. “Defense counsel is not required to make frivolous or meritless motions.” People v 

Darden, 230 Mich App 597, 605; 585 NW2d 27 (1998) (citation omitted). 

Affirmed.

/s/ Michael F. Gadola 

/s/ Patrick M. Meter 

/s/ Karen M. Fort Hood