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-Appellant,

UNPUBLISHED

November 10, 2022

v No. 358389

Calhoun Circuit Court

KEVIN THEODORE WILSON, LC No. 2020-001489-FH

Defendant-Appellee.

Before: SAWYER, P.J., and MARKEY and SWARTZLE, JJ.

PER CURIAM.

The prosecution appeals as of right the dismissal with prejudice of a possession of child 

sexually abusive material charge, MCL 750.145c(4)(a), against defendant. The trial court denied 

the prosecution’s motion for a nolle prosequi and motion to remand and dismissed the case with 

prejudice. We reverse.

I. FACTUAL BACKGROUND

The facts underlying this appeal are not contested. In June 2020, the prosecution charged 

defendant with possession of child sexually abusive material arising from images recovered from 

defendant’s personal devices. Defendant waived a preliminary examination. Defendant was 

released on bond pending trial. 

In July 2021, defendant rejected the prosecution’s plea offer, so a jury trial was scheduled 

for August 2021. In advance of trial, the prosecution filed a notice of intent to call several 

witnesses, including the lead and secondary detectives who heard defendant’s confession. The 

day before trial was scheduled to begin, the prosecution requested an adjournment because two of 

its witnesses, the lead and secondary detectives, were going to be unavailable the following week 

because of employment training. The trial court concluded that this reason for unavailability was 

an insufficient basis for an adjournment and denied the prosecution’s request for an adjournment. 

The trial court reasoned that the prosecution can either bring the law enforcement officers back 

from training or have the law enforcement officers not attend training because they had a subpoena 

for trial.
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The morning of trial, the prosecution informed the trial court that it would not be 

proceeding with trial and would be filing a motion for a nolle prosequi. The prosecution decided 

to let the law enforcement officers attend training, so it could not proceed, in part, because the law 

enforcement officers would not be available for the trial. In the alternative, the prosecution raised 

a motion to remand. The trial court pointed out how the prosecution “decided on the eve of trial 

that [it] wanted to enhance the charges.”

To begin its ruling, the trial court discussed an unpublished opinion from the Court of 

Appeals, which changed how the trial court thought about the prosecution filing a nolle prosequi

on the eve of trial. In discussing the unpublished opinion, the trial court incorrectly stated that it 

was a published opinion from this Court. The trial court denied the prosecution’s motion for a 

nolle prosequi and motion to remand, and dismissed the case with prejudice. Afterward, the trial 

court issued an order that stated “pursuant to [its] decision in this matter” and the unpublished 

opinion cited during the trial court’s oral ruling, “this case [is] dismissed WITH prejudice.”

The prosecution now appeals.

II. PRESERVATION OF ISSUE

To properly preserve an issue for appeal, it must be raised before, and addressed and 

decided by, the trial court. People v Metamora Water Serv, Inc, 276 Mich App 376, 382; 741 

NW2d 61 (2007). The prosecution raised the matter in its motion for a nolle prosequi and its 

motion to remand before the trial court. The trial court addressed and denied both the prosecution’s 

motion for a nolle prosequi and to remand and dismissed the case with prejudice. The prosecution 

has preserved this issue for appeal.

III. STANDARD OF REVIEW

“A trial court abuses its discretion when its decision falls outside the range of reasonable 

and principled outcomes.” People v Duncan, 494 Mich 713, 722-723; 835 NW2d 399 (2013). A 

trial court necessarily abuses its discretion when it makes an error of law. People v Swain, 288 

Mich App 609, 628-629; 794 NW2d 92 (2010). A trial court abuses its discretion when it premises 

its decision on a misunderstanding of controlling legal principles or when it fails to exercise 

discretion when called on to do so. People v Stafford, 434 Mich 125, 134 n 4; 450 NW2d 559 

(1990); People v Cress, 250 Mich App 110, 149; 645 NW2d 669 (2002), rev’d on other grounds 

468 Mich 678 (2003).

This Court reviews a trial court’s ruling regarding a motion to dismiss, including a motion 

for nolle prosequi, for an abuse of discretion. People v Grove, 455 Mich 439, 460; 566 NW2d 547 

(1997), superseded by court rule on other grounds as stated in People v Franklin, 491 Mich 916; 

813 NW2d 285 (2012); People v Adams, 232 Mich App 128, 132; 591 NW2d 44 (1998). This 

Court reviews a trial court’s decision regarding a motion to remand to the district court also for an 

abuse of discretion. People v Jones, 252 Mich App 1, 4; 650 NW2d 717 (2002).

A trial court possesses the inherent authority to sanction litigants and their counsel; 

including the right to dismiss an action. Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 
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NW2d 809 (2006). This Court reviews a trial court’s dismissal of a case as an exercise of this 

power for an abuse of discretion. Id.

IV. ANALYSIS

A. MOTION FOR A NOLLE PROSEQUI

The prosecution states that the separation-of-powers doctrine shields a nolle prosequi

decision from judicial veto unless entering the order would be unconstitutional, illegal, or ultra 

vires. The prosecution also states that the trial court made an error of law by believing the

unpublished opinion mandated the denial of the prosecution’s motion for a nolle prosequi. 

Between the prosecution not acting in a manner that was unconstitutional, illegal, or ultra vires 

and the trial court incorrectly applying legal principles and authority, the prosecution argues the 

trial court abused its discretion when it denied the prosecution’s motion for a nolle prosequi. We 

agree.

A prosecuting attorney shall not enter a nolle prosequi upon an indictment, 

or discontinue or abandon the indictment, without stating on the record the reasons 

for the discontinuance or abandonment and without the leave of the court having 

jurisdiction to try the offense charged entered in its minutes. [MCL 767.29.]

In regard to the prosecution’s motion to dismiss, the decision is within the prosecution’s 

discretion to proceed to trial or to dismiss a case. See People v Morrow, 214 Mich App 158, 165; 

542 NW2d 324 (1995). In deciding whether a prosecuting attorney acted properly in proposing to 

nolle prosequi, discontinue, or abandon a prosecution, the trial court must review the prosecutor’s 

statement of reasons and the evidence filed in the case. Genesee Co Prosecutor v Genesee Circuit 

Judge, 391 Mich 115, 121; 215 NW2d 145 (1974). Such a review is a judicial review, searching 

the record to determine whether the prosecutor’s decision is in accord with the law, facts, and 

reason of the matter. Id. A trial court may not substitute its judgment for that of the prosecuting 

attorney as if it were acting in a supervisory capacity. Id.

“Unless the prosecution acts in a manner that is unconstitutional, illegal, or ultra vires, the 

prosecution’s decision to proceed to trial or dismiss the case is exempt from judicial review 

pursuant to the separation of powers doctrine.” Jones, 252 Mich App at 10. A circuit court may 

reverse or revise the prosecution’s decisions only if it appears on the record that it has abused the 

power confided to it. Genesee Co Prosecutor, 391 Mich at 121.

We are not persuaded that the prosecution abused the power entrusted to it in moving for 

a nolle prosequi even if it did so in light of the trial court’s denial of the motion to adjourn trial. 

Rather, we find the trial court’s denial of the motion to adjourn the trial to be an abuse of discretion 

in this case. First, the reason for the adjournment was eminently reasonable—the need of two 

police witnesses to attend training. If recent events have demonstrated anything, it is that proper 

police training is a societal good of tremendous value. Any additional police training should be 

encouraged, not discouraged or penalized. Second, this is not a case in which there were already 

multiple adjournments. We certainly would understand where trial has been adjourned a number 

of times and the trial judge finally says “Enough is enough.” But here the trial judge in effect said 
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that one adjournment is too much. Once may be enough, but it is certainly not too much where 

there is a valid reason for the request.

Further, a nolle prosequi would not have unfairly prejudiced defendant. Had the trial court 

simply granted the motion to adjourn, defendant would simply have remained free on bond until 

the rescheduled trial. Defendant offers no reason why a short delay in the trial would have 

prejudiced his ability to present a defense.

The prosecution further argues that the trial court abused its discretion when denying the 

motion for a nolle prosequi because it cited the unpublished opinion, which the trial court 

mistakenly believed was a published opinion from this Court. An unpublished opinion is not 

binding under the rule of stare of decisis, but when the caselaw is limited, this Court can view 

these opinions as persuasive. MCR 7.215(C)(1); People v Green, 260 Mich App 710, 720 n 5; 

680 NW2d 477 (2004). 

“If a party cites an unpublished opinion, the party shall explain the reason for citing it and 

how it is relevant to the issues presented.” MCR 7.215(C)(1). However, if a trial court fails to 

exercise its discretion when it has an affirmative obligation to do so, then its abdication to do so 

constitutes an abuse of discretion. Stafford, 434 Mich at 134 n 4. For example, a trial court fails 

to exercise discretion when it believes something is mandatory because of a mistaken belief about 

the law, when, in reality, the decision is discretionary. See People v Green, 205 Mich App 342, 

346-347; 205 NW2d 782 (1994).

It is not entirely clear from the record whether the trial court followed the unpublished 

opinion because the court found it persuasive or whether it felt obligated to follow the opinion 

because of the trial court’s mistaken belief that it was published. Accordingly, even if we were 

not persuaded that the trial court abused its discretion in denying the prosecution’s motions, at a 

minimum it would be necessary to vacate the trial court’s order and remand the matter to the trial 

court for reconsideration in light of the fact that the opinion that it relied upon was unpublished. 

B. MOTION TO REMAND

When the trial court denied the prosecution’s motion for a nolle prosequi, the prosecution 

argues that the trial court should have then granted its motion to remand. The prosecution neglects 

to provide any authority to argue this issue but still argues that the trial court abused its discretion 

when it denied the prosecution’s motion to remand. We disagree. The prosecutor’s failure to 

provide supporting authority for this argument could be seen as an abandonment of the issue. 

People v Matuszak, 263 Mich App 42, 59; 687 NW2d 342 (2004). We will nonetheless address 

this issue.

“Jurisdiction of a criminal defendant is acquired by the circuit court upon the filing . . . of 

the return of the magistrate before whom [the defendant] had waived preliminary examination, or 

before whom the defendant had been examined.” People v Johnson, 427 Mich 98, 107 n 7; 398 

NW2d 219 (1986) (quotation marks and citations omitted; alterations by Johnson Court). Once a 

circuit court has obtained jurisdiction, it may remand to the district court to enable the prosecution 

to present additional evidence. See People v Staffney, 187 Mich App 660, 662; 468 NW2d 238 

(1991).
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In this case, the trial court denied the prosecution’s motion to remand because of two 

reasons: (1) the prosecution had a substantial amount of time to add more charges before bringing 

its motion to remand on the eve of trial, and (2) the trial court did not want to give the impression 

that defendant was being punished for his decision to not plea, finding that the prosecution’s 

motion to remand was raised only after the prosecution brought up the fact that defendant rejected 

the prosecution’s plea offer.

The first time the prosecution mentions additional charges is on the day of trial and in the 

alternative to its motion for a nolle prosequi. The day after the trial court denied its motion for an 

adjournment, the prosecution raised its motion for a nolle prosequi, which, if granted, would 

ultimately prevent the trial from continuing, like an adjournment. In the alternative, the 

prosecution raised its motion to remand.

When arguing for both motions, the prosecution brought up defendant’s failure to plea. 

The prosecution reminded the trial court that “this case was bound over to Circuit Court based on 

a plea agreement between the parties and no further charges would be brought if the [d]efendant 

would plead as charged for possible time served” but defendant failed to plea. Instead, the trial 

court deduced the prosecution wanted “to up the charges now and go back to District Court[,] 

punishing [defendant] for not taking the plea agreement.” 

While the trial court would be understandably concerned with a situation where a 

prosecutor wanted to file additional charges in response to a defendant declining a plea offer, that 

is not the case here. It was part of a plea agreement that no additional charges would be filed if 

defendant agreed to plead guilty to the charges upon which he was bound over. Because defendant 

ultimately did not comply with that plea agreement, the prosecution was free to file any additional 

charges that were appropriate.1 

V. CONCLUSION

We conclude that the trial court abused its discretion by denying the prosecution’s motion 

for a nolle prosequi, denying the prosecution’s motion to remand, and dismissing the case with 

prejudice.

Reversed. 

/s/ David H. Sawyer

/s/ Jane E. Markey

 

1 Alternatively, unless there would be an issue of double jeopardy, an issue that is not before us, it 

is not clear to us why the prosecution would have needed a motion to remand after the dismissal 

rather than merely filing new charges against defendant for the uncharged offenses.