IN RE NIKOLA IVOS MINOR
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STATE OF MICHIGAN
COURT OF APPEALS
In the Matter of CHELSEY LYNN LEE, Minor.
PEOPLE OF THE STATE OF MICHIGAN,
FOR PUBLICATION
January 15, 2009
9:00 a.m.
Petitioner-Appellant
v
No. 282848
Kent Circuit Court
Family Division
LC No. 07-052810-DL
Advance Sheets Version
CHELSEY LYNN LEE,
Respondent-Appellee.
In the Matter of NIKOLA IVOS, Minor.
FAMILY INDEPENDENCE AGENCY,
Petitioner-Appellant,
v
No. 283562
Kent Circuit Court
Family Division
LC No. 07-051812-DL
NIKOLA IVOS,
Respondent-Appellee
Before: Markey, P.J., and Whitbeck and Gleicher, JJ.
PER CURIAM.
In each of these cases consolidated on appeal, the prosecutor appeals by leave granted the
order of the family division of the circuit court (family court) removing from the adjudicative
process a juvenile delinquency case in which it was alleged that the minor committed an offense
defined in § 31(1)(f) of the Crime Victim’s Rights Act (CVRA), MCL 780.781(1)(f). The family
court transferred each case to the family court’s consent calendar. The prosecutor argues that the
family court failed to comply with MCL 780.786b and MCR 3.932(B), which require the court to
give written notice of its intent to divert such cases so that both the prosecutor and the crime
victims are afforded an opportunity to address the court before it takes any formal or informal
action to remove the case from the adjudicative process. With respect to Docket No. 282848, we
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conclude that the family court erred by failing to comply with MCL 780.786b and MCR
3.932(B). Nevertheless, reversal is not in the interests of the public or the minor and therefore
unwarranted under the criteria of MCR 2.613(A). We therefore affirm the order in Docket No.
282848 and the order in Docket No. 283562.
These cases present issues regarding the interpretation and application of statutes and
court rules, which are questions of law we review de novo. People v Kimble, 470 Mich 305,
308-309; 684 NW2d 669 (2004). The foremost principle “in construing statutes is ‘to discern
and give effect to the Legislature’s intent.’” People v Williams, 475 Mich 245, 250; 716 NW2d
208 (2006), quoting People v Morey, 461 Mich 325, 330; 603 NW2d 250 (1999). When the
statutory language is unambiguous, “we presume that the Legislature intended the meaning
clearly expressed—no further judicial construction is required or permitted, and the statute must
be enforced as written.” Morey, supra at 330. A provision in a statute is ambiguous only if it
irreconcilably conflicts with another provision or it is equally susceptible to more than a single
meaning. People v Gardner, 482 Mich 41, 50 n 12; 753 NW2d 78 (2008). The rules of statutory
construction apply equally to court rules. In re KH, 469 Mich 621, 628; 677 NW2d 800 (2004);
People v Hawkins, 468 Mich 488, 500; 668 NW2d 602 (2003).
In general, the family court has jurisdiction over juveniles within its judicial circuit that
have “violated any municipal ordinance or law of the state or of the United States.” MCL
712A.2(a)(1). In Docket No. 282848, the prosecutor filed a petition with the court alleging that
the juvenile had committed the offense of malicious destruction of personal property valued at
$1,000 or more but less than $20,000. MCL 750.377a(1)(b)(i). In Docket No. 283562, the
prosecutor filed a petition with the court alleging that the juvenile had committed the offense of
second-degree home invasion, MCL 750.110a(3). After a preliminary inquiry, the family court
could, “in the interest of the juvenile and the public: (1) deny authorization of the petition; (2)
refer the matter to a public or private agency providing available services pursuant to the
Juvenile Diversion Act, MCL 722.821 et seq.; (3) direct that the juvenile and the parent,
guardian, or legal custodian be notified to appear for further informal inquiry on the petition; (4)
proceed on the consent calendar . . .; or (5) place the matter on the formal calendar . . . .” MCR
3.932(A). Here, however, each petition alleged a “violation of a penal law of this state for which
a juvenile offender, if convicted as an adult, may be punished by imprisonment for more than 1
year or an offense expressly designated by law as a felony.” MCL 780.781(1)(f)(i). Therefore,
MCR 3.932(B) applies. It provides: “A case involving the alleged commission of an offense
listed in the Crime Victim’s Rights Act, MCL 780.781(1)(f), may only be removed from the
adjudicative process upon compliance with the procedures set forth in that act. See MCL
780.786b.” The court rules do not define “adjudicative process,” but, clearly, it is the judicial
procedure that could lead to the court’s fact-finding determination that the petition’s allegations
are true. This would constitute an “adjudication,” analogous to a criminal conviction, that the
court has jurisdiction over the juvenile under MCL 712A.2(a)(1). See MCR 3.903(A)(26); In re
Whittaker, 239 Mich App 26, 28-30; 607 NW2d 387 (1999); In re Wilson, 113 Mich App 113,
121; 317 NW2d 309 (1982).
MCR 3.932(B) provides that diversion of a juvenile case in which it is alleged that the
minor committed an offense listed in § 31(1)(f) of the CVRA is governed by MCL 780.786b(1),
which provides:
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Except for a dismissal based upon a judicial finding on the record that the
petition and the facts supporting it are insufficient to support a claim of
jurisdiction under section 2(a)(1) of chapter XIIA of the probate code of 1939,
1939 PA 288, MCL 712A.2, a case involving the alleged commission of an
offense, as defined in section 31, by a juvenile shall not be diverted, placed on the
consent calendar, or made subject to any other prepetition or preadjudication
procedure that removes the case from the adjudicative process unless the court
gives written notice to the prosecuting attorney of the court’s intent to remove the
case from the adjudicative process and allows the prosecuting attorney the
opportunity to address the court on that issue before the case is removed from the
adjudicative process. Before any formal or informal action is taken, the
prosecutor shall give the victim notice of the time and place of the hearing on the
proposed removal of the case from the adjudicative process. The victim has the
right to attend the hearing and to address the court at the hearing. As part of any
other order removing any case from the adjudicative process, the court shall order
the juvenile or the juvenile’s parents to provide full restitution as provided in
section 44. [Emphasis added.]
The plain language of MCL 780.786b(1) contains several procedural steps that the family
court must fulfill before deciding to remove from the adjudicative process a juvenile case in
which it is alleged that the minor committed a CVRA offense. We note that in each of the
present cases, a preliminary inquiry disclosed sufficient evidence to authorize the filing of the
prosecutor’s petition. MCR 3.932(A)(1); MCL 780.786b(1). We also note that the appeals in
these cases pertain solely to the procedural requirements of MCL 780.786b(1) and the court
rules. No one argues in these appeals that the family court judges abused their discretion in
making the substantive decisions to divert these cases to the consent calendar. See MCL
722.824.
Clearly and unambiguously, MCL 780.786b(1) requires that before the family court
formally or informally acts to remove from the adjudicative process a juvenile case involving a
CVRA offense, the court must give the prosecuting attorney written notice of the court’s intent to
do so. Second, the court’s notice to the prosecutor must specify the time and place at which the
court will conduct a hearing on its proposed intent to remove the case from the adjudicative
process. Third, the court’s written notice to the prosecutor must be furnished sufficiently in
advance so that the prosecutor can fulfill its responsibilities to both notify the victim or victims
of the time and place of the court’s hearing on the proposed removal of the case from the
adjudicative process and also afford the victim or victims an opportunity to consult with the
prosecuting attorney regarding the disposition of the case. See MCL 780.786b(2). Finally, at the
removal hearing, the court must afford both the prosecuting attorney and the victim of the
alleged offense the opportunity to address the court regarding the court’s intent to remove the
case from the adjudicative process. We now review the record in the cases at bar in light of the
plain requirements of MCL 780.786b(1) and the pertinent court rules.
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A. Docket No. 282848
In Docket No. 282848, the prosecutor filed its petition on June 22, 2007. Although not
contained in the court file, or reflected in the court’s docket entries, the parties agree that a court
intake probation officer provided the parties some form of notice that the court would consider
diverting the case to the consent calendar. On August 3, 2007, the prosecutor filed an objection
to the court’s diverting the case from the adjudicative process. Thereafter, on August 22, 2007, a
family court referee authorized the filing of the petition and completed forms necessary to
appoint counsel to represent the minor. On September 12, 2007, the court scheduled the case for
a pretrial conference on October 8, 2007. No transcript of the pretrial conference has been
provided to this Court, but the docket entries of the family court reflect that a pretrial conference
was held on the date scheduled. A “notice of intent to plea” was filed with the court indicating
that the minor, pursuant to a plea bargain, intended to plead guilty to a lesser offense of
malicious destruction of personal property valued at $200 or more but less than $1,000. MCL
750.377a(1)(c)(i).1 About November 1, 2007, the family court provided the interested parties
notice that a “delinquency adjudication/disposition hearing” would be held on November 15,
2007. The notice gave no indication that the court intended to consider diverting the case to the
consent calendar.
At the November 15, 2007, hearing, a family court probation officer recommended that
the minor be placed on the court’s consent calendar. The prosecutor objected for substantive
reasons and because the victim lacked notice that the court might consider diversion, stating:
. . . I know the victim did have notice that [there] was an adjudication
disposition today your Honor, but after speaking with them [the victim and her
daughters] after the pretrial we thought this would be an adjudication and I did
phone them yesterday and so did [the prosecutor’s victim/witness coordinator]
and we were unable to contact the victim to see if they would want to come and
address the court. They did fill out a victim impact statement. [S]o I think notice
to the victim, even though they thought this was a[n] adjudication, they didn’t
know the change in the case other than my voice mail yesterday letting them
know that the probation officer was recommend[ing] consent calendar; and I have
a feeling based on my discussions with the victims that they would wan[t] to be
here to address the Court to make an argument and show their concerns of why
consent calendar would not be appropriate.
Although recognizing that the notice of hearing did not include the possibility of
diverting the case to the consent calendar, the court determined that diversion was in the best
interests of the public and the juvenile. Regarding notice to the victim, the court ruled:
1
This offense does not fall within the definition of MCL 780.781(1)(f) because it is punishable if
committed by an adult by not more than one year in jail and is expressly designated a
misdemeanor, not a felony.
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As far as the victim is concerned there is an adjudication/disposition
notice which was sent to the victims. The victims themselves are not here with us
and while this isn’t an adjudication or a disposition in the sense that the notice
was sent out for, they’re not here to tell me what they [want to] do and the
prosecutor’s [got to] guess from things which had occurred in the past as to what
their attitude about this would be. That’s why we have these hearings so that
everybody has a chance . . . to say what they need to say. They can do it to the
Court so that we can find out and they’re not here. It’s now 25 to 12 for an 11
o’clock hearing and they’re not here.
The court effectuated its bench ruling by order entered December 19, 2007, that provided
the case would be diverted from the adjudicative process and placed on the consent calendar.
We hold that the family court failed to comply with the requirements of MCL
780.786b(1) by not providing the prosecutor with written notice of the court’s intent to remove
the case from the adjudicative process and notice of the time and place of a hearing on the
proposed removal. Although the court furnished the prosecutor notice of an adjudicativedispositional hearing, nothing in that written notice apprised the prosecutor that the court might
remove the case from the adjudicative process by transferring the case to the court’s consent
calendar. The notice the family court gave in this case was insufficient to satisfy the
requirements of MCL 780.786b(1).
Although we conclude that the family court erred, reversal is not necessarily warranted.
Although analogous, juvenile delinquency proceedings are not adult criminal proceedings. In re
Wilson, supra at 121. “[J]uvenile justice procedures are governed by the applicable statutes and
court rules, with an emphasis on rehabilitation rather than retribution.” In re Whittaker, supra at
28-29. The court rules provide that harmless error analysis applies to juvenile delinquency
proceedings. Subchapter 3.900 of the court rules generally “govern practice and procedure in the
family division of the circuit court in all cases filed under the Juvenile Code.”
MCR 3.901(A)(1). “Other Michigan Court Rules apply to juvenile cases in the family division
of the circuit court only when this subchapter specifically provides.” MCR 3.901(A)(2). But,
MCR 3.902(A) specifically incorporates the harmless error standard of the civil procedure court
rules by providing, in part that “[l]imitations on corrections of error are governed by MCR
2.613.” MCR 2.613(A), provides, in pertinent part that “an error in a ruling or order, or an error
or defect in anything done or omitted by the court or by the parties is not ground for granting a
new trial, for setting aside a verdict, or for vacating, modifying, or otherwise disturbing a
judgment or order, unless refusal to take this action appears to the court inconsistent with
substantial justice.”
Here, we conclude that not granting relief for error in complying with MCL 780.786b(1)
is not “inconsistent with substantial justice.” First, as the family court observed, and the
prosecutor concedes, the victim in this case had actual notice that an adjudicative dispositional
hearing would be held but failed to appear. Second, the prosecutor was present to express his
opposition to the case’s transfer to the consent calendar. Also, the prosecutor had consulted the
victim about diversion; the victim had completed a victim’s impact statement, and the prosecutor
was able to represent the victim’s views in opposition to transferring the case to the consent
calendar. In addition, the pretrial conference resulted in the prosecutor’s agreeing to allow a plea
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to a lesser offense that is classified as a misdemeanor if committed by an adult, and, therefore,
not within the definition of a CVRA offense under MCL 780.781(1)(f). Finally, the passage of
time favors our finding that reversing the family court’s order would be inconsistent with
substantial justice. One of two outcomes is likely to have already occurred: the juvenile has
either successfully completed a consent calendar case plan, MCR 3.932(C)(7), or the juvenile has
been unsuccessful in that regard with the juvenile’s own actions likely to have ended the special
status conferred by assignment to the consent calendar, MCR 3.932(C)(8). We conclude after
applying the criteria of MCR 2.613(A) to the facts and circumstances of this case that no relief is
warranted. We affirm the order in Docket No. 282848.
B. Docket No. 283562
In Docket No. 283562, the prosecutor filed its petition on April 25, 2007, alleging that
the juvenile had committed the offense of second-degree home invasion, MCL 750.110a(3). A
family court referee authorized the petition on May 21, 2007. The family court appointed
counsel for the minor and scheduled the case for a pretrial conference on July 9, 2007. At the
pretrial conference, the parties entered a plea bargain under which the minor would plead guilty
to an added count of third-degree home invasion, MCL 750.110a(4). In accordance with the plea
agreement, the prosecutor amended its petition to add an allegation of third-degree home
invasion. After receiving his advice of rights, the minor admitted the allegations of the newly
added charge. The family court referee who presided at the pretrial conference accepted the
minor’s plea, made him a temporary ward of the court, and ordered that a dispositional hearing
be held on September 7, 2007.
The parties, including the victim, appeared at the September 7, 2007, dispositional
hearing. The family court’s probation officer stated her recommendation for disposition.
Further, the victim addressed the court regarding the effect the offense has had on her but noted
that the minor was the only one of four offenders who had written her a sincere letter of apology.
After the victim spoke, the family court recessed the proceedings for 12 minutes, apparently
meeting in chambers with the attorneys and the court’s probation officer, who left to attend
another hearing before the proceedings reconvened. After the recess, the family court
recognized the prosecutor who had talked to the victim about the minor’s being assigned to the
court’s consent calendar. Although the victim acknowledged that the minor had accepted
responsibility for his actions, she opposed transferring the case to the consent calendar because
of the nature of the offense.
After receiving defense counsel’s recommendations, the family court explained why it
was inclined to assign the case to the consent calendar. The court noted that it had recessed the
proceedings to consider assigning the case to the consent calendar, because after disposition it
lost the opportunity to do so, citing MCR 3.932(C), which provides: “The court may transfer a
case from the formal calendar to the consent calendar at any time before disposition.” The court
observed that the court rule clearly provided that the court could transfer a juvenile case to the
consent calendar “any time before disposition” but not after. The court continued:
Now, to do that, there [has] to be notice under the Crime Victim’s Rights
Act, and the other things would need to happen. So I think, even if I wanted to
today . . . I couldn’t.
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Where the confusion comes . . . in the court rule is under [MCR
3.932(C)(2)]. It said: “Plea; adjudication. No formal plea may be entered in a
consent calendar case, and the court must not enter an adjudication.”
So it’s saying you can’t do a formal plea in a consent calendar case.
However, the first part of [MCR 3.932(C)] says: “The court may transfer a case
from the formal calendar to [the] consent calendar any time before disposition.”
The family court adjourned the dispositional hearing, noting the seriousness of the charge, its
effect on the victim, and the court’s obligation to protect the public while advancing the best
interest of the juvenile.
The family court provided the parties notice of a hearing scheduled for November 2,
2007. The court’s docket entries note a hearing was held that day, but there is no record of the
proceedings. Apparently, the parties met in chambers. The family court indicated that it was
still inclined to assign the case the to the consent calendar. Indeed, that is what the family court
judge stated in a December 5, 2007, letter to counsel. In the letter, the court stated that during
the conference in chambers the court continued to believe that the case was appropriate for the
consent calendar, but the prosecutor who attended the conference objected to consent
calendaring it because the minor had already pleaded guilty. The court observed that because
nothing was placed on the record, “it is appropriate for us to appear in court, on the record, so
that all concerns and objections can be codified.” The family court provided the parties notice of
a hearing scheduled for January 4, 2008, and subsequently provided notice that the hearing was
rescheduled for January 18, 2008.
At the January hearing, the prosecutor advanced several objections to transferring the
case to the consent calendar. The prosecutor argued that the minor had not advanced a valid
reason to withdraw his guilty plea, that there was an apparent conflict between MCR 3.932(C)
and (C)(2)—with the latter rule precluding transferring the case to the consent calendar—and the
court had not complied with MCL 780.786b.
The family court found no conflict in the court rules. Specifically, the court concluded
that the court rules allowed the family court to place a juvenile case on the consent calendar after
an initial plea but before disposition. The court relied on MCR 3.932(C) and MCR 3.932(D),
which also provides, “At any time before disposition, the court may transfer the matter to the
consent calendar.” The family court reasoned that once it removed a case from the adjudicative
process to the consent calendar, the court rules precluded both a plea, MCR 3.932(C)(2),2 and an
order of disposition, MCR 3.932(C)(6).3 In essence, the court reasoned that until actually
transferred to the consent calendar, a juvenile case is not a “consent calendar case” within the
meaning of the court rules. With respect to complying with the CVRA, the court opined that
2
MCR 3.932(C)(2) provides that“[n]o formal plea may be entered in a consent calendar case,
and the court must not enter an adjudication.”
3
MCR 3.932(C)(6) provides that “[n]o order of disposition may be entered by the court in a case
placed on the consent calendar.”
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scheduling a consent calendar conference and hearing would satisfy the notice requirements of
the act. The court concluded that the case was appropriately placed on the consent calendar even
though a plea had previously been entered.
On appeal, the prosecutor does not argue that because the minor had tendered a plea,
MCR 3.932(C)(2) precluded the family court from removing the case to the consent calendar.
We simply note our agreement with the family court’s analysis of the court rules. Provided that
the court has complied with the notice requirements of MCL 780.786b(1) with respect to
juvenile cases alleging the minor committed a CVRA offense, the family court may remove a
juvenile case from the adjudicative process to the consent calendar “at any time before
disposition.” MCR 3.932(C) and (D).
We disagree with the trial court’s apparent conclusion that it can comply with MCL
780.786b(1) by scheduling a hearing after it has rendered its ruling to transfer a CVRA case to
the consent calendar. Rather, the plain language of 780.786b(1) requires notice to the prosecutor
and the victim of the alleged offense of the time and place of a hearing “before the case is
removed from the adjudicative process.” Id. Still, we disagree with the prosecutor that the
family court did not comply with the statute.
The victim was present at the first dispositional hearing in this matter. She expressed her
views to the court, and the court informed counsel in chambers of its belief that the case was
appropriate for the consent calendar. The court asked the prosecutor to confer with the victim
regarding assigning the case to the consent calendar. The record reflects the prosecutor did so
and stated both the prosecution’s and the victim’s objections to transferring the case to the
consent calendar. So, it is clear that from the date of that first hearing on September 7, 2007,
both the prosecutor and the victim had actual notice of the court’s intent to remove the case from
the adjudicative process. The family court’s intent remained the same through a conference in
chambers with counsel on November 2, 2007. The prosecutor correctly notes the court’s notice
was oral, and not in writing as required by MCL 780.786b(1).
The family court, however, cured the defect of lack of “written notice to the prosecuting
attorney of the court’s intent to remove the case from the adjudicative process” by its letter of
December 5, 2007, informing the prosecutor and defense counsel that the court believed the case
was an appropriate one for the consent calendar, and that “it is appropriate for us to appear in
court, on the record, so that all concerns and objections can be codified.” Although the court’s
notice of the time and place scheduled for the hearing did not specifically state that the purpose
was to consider removing the case from the adjudicative process, the court’s December letter and
the prior proceedings constituted substantial compliance with MCL 780.786b(1) and MCR
3.932(B). Because the prosecutor does not assert that the family court otherwise abused its
discretion, we affirm.
C. Conclusion.
In Docket No. 282848, we conclude that the family court erred by failing to comply with
MCL 780.786b and MCR 3.932(B) before it removed a juvenile case in which it was alleged that
the minor committed an offense defined in § 31(1)(f) of the Crime Victim’s Rights Act, MCL
780.781(1)(f). Nevertheless, we conclude that reversal is unwarranted because it would not be in
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the interests of the public or the minor. MCR 2.613(A); MCR 3.902(A) and (B). Accordingly,
we affirm the order in Docket No. 282848.
We affirm the order in Docket No. 283562.
/s/ Jane E. Markey
/s/ William C. Whitbeck
/s/ Elizabeth L. Gleicher
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