PEOPLE OF MI V LEO RAYMOND TERLISNER (Concurring Opinion)
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STATE OF MICHIGAN COURT OF APPEALS UNPUBLISHED August 26, 2014 PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v No. 315670 Van Buren Circuit Court LC No. 1977-003053-FC LEO RAYMOND TERLISNER, Defendant-Appellee. Before: FITZGERALD, P.J., and SAWYER and SHAPIRO, JJ. SHAPIRO, J. (concurring). I concur with the majority s conclusions because the Michigan Supreme Court has determined that the requirements of People v Aaron, 409 Mich 672, 733-734; 299 NW2d 304 (1980), are not to be applied retroactively. Contrary to defendant s argument, Aaron did not hold that the common law felony-murder rule was repugnant to the Constitution. Indeed, it did not cite to any constitutional provision as its basis, stating rather that the Court was exercis[ing its] role in the development of the common law[.] Id. at 733. The Court stated that the new rule would only apply to trials in progress and those occurring after the date of this opinion. Id. at 734. Given that limitation and the lack of any finding of constitutional repugnance, I do not believe that defendant is entitled to relief under MCL 770.1. I write separately to indicate my disagreement with the majority s view that MCR 6.431 has superseded MCL 770.1. The majority s conclusion rests upon reference to a conclusory footnote in People v McEwan, 214 Mich App 690, 693 n1; 543 NW2d 367 (1995). The footnote cites People v Strong, 213 Mich App 107, 112; 539 NW2d 736 (1995), a case that involved a wholly different statute and a wholly different court rule than does the instant case.1 It is imprudent for this Court to determine that a statute passed by the Legislature was mere surplusage, particularly where it appears to have been intended to be a mechanism to address miscarriages of justice under specifically defined circumstances. See People v McGraw, 484 1 In Strong, this Court held that pursuant to MCR 6.310(B), [a] trial court may not vacate sua sponte an accepted plea without the defendant s consent. 213 Mich App at 108. The instant defendant s underlying case did not involve a plea bargain nor the application of MCR 6.310(B). -1- Mich 120, 126; 771 NW2d 655 (2009). In sum, I find nothing in the language of the MCR 6.431 that indicates it was intended to judicially repeal or supersede MCL 770.1. /s/ Douglas B. Shapiro -2-
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