Articles Posted in Criminal Appeals

In July of 2012, Thomas Murdock was found not guilty of involuntary manslaughter in the June 2011 death of his girlfriend, who died after being struck by Murdock’s vehicle as he backed it up so that Lisa Hardwick, the victim, could mow the lawn.

While found not guilty on that charge, Murdock was found guilty on four other charges, including possession of marijuana, operating while intoxicated third offense, OWI causing death, and driving on a suspended license.

Murdock was sentenced in September of 2012 in Alger County Circuit Court to two to fifteen years in prison. Upon finding Murdock guilty in July, bond was revoked and he was immediately incarcerated in the Alger County Jail.

Prosecutors said in opening statements at trial that Murdock and his girlfriend had been arguing, and that Lisa Hardwick got out of the truck before being ran over by the defendant. However, both the prosecution and defense agreed that the defendant did not run over Hardwick intentionally. News articles at Upper Michigan’s Source state that both Murdock and his girlfriend were found to have BAC higher than the legal limit, and had been smoking marijuana.

Last week, the Michigan Court of Appeals sent the case back to Alger County Judge William Carmody, ruling that the judge was “too generous” in sentencing Murdock, and that the sentence previously handed down to the defendant was one year less than the Michigan state sentencing guidelines call for.

While sentencing is often appealed by a defendant’s attorney when it is believed the sentence is too harsh or departs upwardly from sentencing guidelines, prosecutors may also file an appeal when they feel the sentence given to a defendant is too lenient. Unfortunately, the death of the victim in this case clearly resulted from a devastating accident, likely caused due to the fact that the two were drinking heavily and smoking pot. Depending on the outcome when the defendant is resentenced, he could spend a substantial number of years behind bars.

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As highly qualified Michigan criminal appeal attorneys, we are occasionally asked by defendants whether they can appeal a conviction based on the fact the defendant felt his or her defense lawyer was ineffective or incompetent. There are occasions on which a defendant may feel that had his or her attorney provided quality legal representation, the defendant would not have been found guilty.

The truth of the matter is that appealing solely on the grounds of ineffective counsel is extremely difficult. However, this is not to say an appeal cannot be won, particularly if you have a skilled and experienced lawyer on your side who has successfully represented many clients when appealing a conviction or sentence.

Why is it so hard to appeal a conviction based on ineffective assistance of counsel in the state of Michigan? Here is what you must prove in order to establish a claim:

Your attorney did such a poor job of representing you at trial that a conviction by the judge or jury was nearly a guarantee.

The representation provided by your attorney fell below an objective standard of reasonableness (below what are considered “normal” standards for law professionals).

Unfortunately, when a defendant desires to appeal on grounds that his or her attorney failed to introduce evidence or call an expert witness, or failed to object to testimony or interview a witness who may have shed new light on the case, the courts often turn a deaf ear. Basically, unless your attorney did absolutely nothing else other than show up for the trial, it isn’t likely the court will delve into your complaints.

Michigan courts are not concerned about how well your attorney represented you in court; what they are concerned about is whether you may have been denied a fair trial. Therefore, the courts will not review how your lawyer presented your case overall, but perhaps any serious errors which may have resulted in an unfair trial.

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In 2010, Jimmie Allen Nelson was convicted of a murder which occurred some 30 years ago. Nelson was found guilty in the 1980 murder of Cherita Thomas, who was 20 years old at the time. Authorities believe Nelson killed Thomas, and then buried her body after picking her up in AuSable Township when her car appeared to have broken down. The defendant freely admits that he did pick her up, then claims he drove her to a friend’s apartment before finally driving her to a restaurant, which was the last place he claims to have seen her.

Nelson, of Oscoda, appealed his conviction of second-degree murder in 2012. While the Michigan appeals court overturned his conviction and sent his case back to court, the judgment of the appeals court was reversed when the Attorney General’s Office appealed with the state’s Supreme Court. Ultimately, the Supreme Court determined that there was sufficient evidence for Nelson’s conviction, although it was circumstantial. Now other arguments regarding his conviction will be reviewed by the appeals court as the defendant hopes his conviction will be overturned on other issues.

In the meantime, Nelson’s defense attorney filed a motion that a hearing be conducted for “immediate consideration” regarding his client’s bond. Upon reversing his conviction in 2012, Nelson’s request for bond was denied; the same was true while he appealed the Supreme Court’s reinstatement of his murder conviction. The Michigan Court of Appeals granted the motion. Nelson’s bond hearing is scheduled in Iosco County 23rd Circuit Clerk on October 14.

Nelson, who is now 61 years old, is no stranger to the legal system. In 2006, Nelson was charged with five counts of perjury and one count of obstruction of justice in the disappearance of Thomas. He was also charged with murder in the Thomas case. While convicted of the other charges, the presiding judge in the case dismissed the murder charge against Nelson.

Prosecutors in the case appealed the dismissal, resulting in a 2010 trial in which Nelson was found guilty. His attorney appealed the conviction in 2012 and won, only for the conviction to be reinstated by the state’s Supreme Court earlier this year.

Nelson is currently incarcerated at the Michigan Department of Corrections Facility in St. Louis, Michigan, where he is serving a 25 to 50 year sentence for allegedly murdering Thomas.

Michigan criminal appeals attorneys know that the road to freedom is often long and full of holes for those wrongly convicted of crimes they did not commit. As indicated by the above story, the appeals process can be full of unexpected twists and turns. One moment your conviction has been overturned, the next moment another court disagrees.

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In December of 2012, former U of M student Jeffrey Pyne was convicted on charges of second degree murder in the death of his mentally ill mother. He was sentenced to 20 to 60 years in prison. Now, Pyne’s appeal lawyer has filed an appeal of the defendant’s conviction, said to have written a comprehensive appeal on Pyne’s behalf.

The appeal contends that James Champion, Pyne’s defense attorney at trial, did not present a substantial defense and did not call any witnesses. Pyne, who is now 23 years old, requested a Ginther hearing as well. During this hearing it is expected that the defendant’s former trial attorney will explain why he did not present any defense witnesses, and why he failed to object on several occasions to testimony which was potentially objectionable.

Pyne’s appeal also argues that a substantial amount of improper evidence was allowed in court. According to an article at the Examiner, “opinion” testimony of police detectives was allowed on numerous critical topics including what was called “fake” behavior, blood spatter, and more. Ultimately, Pyne alleges that his trial attorney deprived him of his Sixth Amendment constitutional right to effective assistance of counsel.

In regards to no defense witnesses being presented at trial, Pyne’s appeals attorney contends that had his defense lawyer presented defense witnesses at trial, it may have benefited Pyne. Some of the defense witnesses may have included Bernard Pyne, Jeffrey’s father, and the Chief Medical Examiner of Macomb County. Bernard Pyne allegedly wanted to inform the jury of his son’s complete lack of violent behavior, and his wife’s compliance in regards to medication and her behavior. The Chief Medical Examiner would have testified that Ruth Pyne’s injuries were not likely caused by a 2 by 4 or similar object, contrary to government witness opinions.

The Ginther hearing could be held this month, which may expedite the appeal process.

It appears that the grounds on which Pyne has appealed his conviction are fairly strong. According to the brief, the evidence and testimony presented by the prosecution went unchallenged.

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In June of 2012, the Michigan Court of Appeals reversed convictions on eight felony charges against Charles H. Arthur, who was convicted on numerous charges including robbery and murder stemming from incidents going back to 2002.

In 2010, Arthur was convicted of carjacking, kidnapping, robbing, shooting, and extorting a man in 2002; this was the second time he was convicted on the charges. Arthur claimed at that time that he would win on appeal, and be a “free man.” According to a news article at Mlive.com, Arthur has an extensive criminal background and is nicknamed “Frank Nitty” after a 1920s era mobster.

Ultimately, Arthur wanted to represent himself at trial regarding the 2002 incident, however felt that because he had to remain shackled, would not be effective before the jury. Chief Circuit Judge Robert L. Kaczmarek ordered Arthur to remain shackled at the ankles for the duration of his trial, an order the Michigan Court of Appeals determined denied the defendant of his right to self-representation. Therefore, Jonathon Huffman, Arthur’s court-appointed lawyer, represented him during the trial because with the shackles, he would not be able to present evidence, use a podium, or move about the courtroom without jurors seeing him in shackles.

In a 2-1 decision, appellate judges Michael J. Talbot and Donald S. Owens decided that the judge’s decision to have Arthur remain shackles was without justification, considering he only briefly cited a “security issue.” They also determined that the defendant’s being forced to wear them in the presence of the jury violated his due process right to a fair trial.

Last week, the Michigan Supreme Court reinstated Arthur’s convictions, ruling that while Arthur did have a right to represent himself at trial, because he is considered violent, the right is not unfettered.

Michigan criminal appeals attorneys know all too well the complexities of these types of issues. Without a skilled attorney who is highly experienced in the appeals process, the results for the defendant often are not favorable.

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In the state of Michigan, there are some instances in which a defendant who loses at trial may overturn the lower court’s ruling by petitioning to a higher court. This is true of criminal cases as well; a conviction may be appealed, or the sentencing portion only when a judge sentences an individual to punishment that seems far out of line in accordance with the state sentencing guidelines.

When can you file an appeal? Only after completion of a trial, after the final judgment is reached. Defendants may not file an appeal at any stage of the criminal process, due to the fact that the court system would become highly inefficient as proceedings and hearings could not move forth due to waiting for the appeals court’s decision .

Can you appeal a conviction or sentencing on the basis you are not pleased with the outcome? No. In order to appeal a conviction or sentencing, an error of law must exist or your constitutional rights must have been violated. Additionally, an appeal does not constitute a new trial. An appeal is not similar to trial, as there are no witnesses called or new details presented; the transcript and evidence presented at the original trial will be reviewed by the appellate court, who will decide whether procedural errors existed or the law was inappropriately applied.

Are most appeals successful? The short answer is no. When serious errors are made at trial, the appeals court may overturn a verdict or remand a case back to court for re-sentencing. Trial courts have substantial leeway; therefore, when appealing to the Michigan Court of Appeals, it is vital the defendant and his/her attorney have substantial proof that any error in the law made at trial was serious, and not a harmless minor mistake. Perhaps most important of all in a successful appeal is having an attorney who is highly skilled and experienced in appellate matters to review the defendant’s case, a lawyer who is thoroughly familiar with what constitutes a serious error at trial.

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Steven Stewart, a former Stanton resident, was sentenced to up to 50 years in prison in June of 2011 for planting an acid explosive which allegedly maimed his ex-girlfriend’s new boyfriend. The attack occurred in September of 2008; the judge in the case, Montcalm County Circuit Judge Suzanne Hoseth Kreeger, exceeded the recommendation in state sentencing guidelines of a maximum of almost 19 years, opting instead to sentence Stewart to up to 50 years. The judge exceeded maximum sentencing due to the extent of injury suffered by the victim, Derek Lehman, and the uncertainty of the chemical used in making the explosive.

According to a news article at the Stanton Daily News, Lehman suffered permanent loss of eyesight in his right eye, and severe burns to his left arm as a result of the attack. Stewart was allegedly jealous of his ex-girlfriend’s relationship with Lehman, and built a chemical bomb, placing it in a wooden box in Lehman’s driveway at his home in Eureka Township. Upon opening the box, a mixture said to contain sulfuric acid exploded onto Lehman’s face and body.

Stewart argued in his appeal that Judge Kreeger abused her power when she failed to clearly express her reasons for departing substantially from state sentencing guidelines. Ultimately, the appeals court upheld Stewart’s conviction, but vacated sentencing finding that the trial court did abuse its discretion in sentencing Stewart.

Kreeger argued that she imposed the increased sentence based
on several facts including the pain and suffering the victim, his girlfriend, and both families suffered, and his loss of eyesight; the fact that the crime took place on September 11, and that because it took place on that date, the Spectrum Health United Hospital in Greenville went into disaster mode and shut down.

Ultimately, the Michigan appeals court agreed with one of the four reasons given by Judge Kreeger, the fact that the hospital was shut down. However, they did not agree with the other three, saying that although the crime did occur on September 11, there was no factual determination made by the trial court indicating that Stewart intentionally attempted to make a statement regarding terrorism in his decision to have the explosion occur on that date. Among other reasons, the appeals court stated that the trial court erred by not articulating reasons for the extent of the departure and failure to explain why the sentence handed down by the judge was more proportionate than that within the sentencing guidelines range.

On August 15, the Court of Appeals released an opinion vacating Stewart’s sentence and remanding the case back to court for resentencing, however the court did uphold his conviction.

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In 2006, four people were convicted in an e-mail scandal in Clio after allegedly hacking into thousands of e-mails belonging to Clio schools Superintendent Fay Latture. The four individuals who allegedly accessed Latture’s e-mail account in 2005 without authorization include Diane Reed, Larry Emmerling, Rebecca Freifeld, and Julia Keyes. In February of 2006, all four were sentenced to probation, one month in jail, and more than $1,000 in fines. All four had pleaded guilty to tampering with the victim’s e-mail messages, and were sentenced for conspiracy to fraudulently access a computer.

Larry Emmerling is a former school board member; Rebecca Freifeld is former Clio City Commissioner, and Diane Reed a former teacher. Latture’s lawsuit claimed that Julia Keyes, a Clio resident, and Rebecca Freifeld violated her privacy and co-conspired when hacking into her e-mail account, causing emotional harm. In March of 2011, a Genesee Circuit Court ruled in the victim’s favor, ordering a total of $375,000 be paid to Latture. Judge Judith Fullerton ordered Keyes to pay Latture $125,000, and Freifeld to pay $250,000. Claims against Reed and Emmerling were dismissed.

The defendants appealed the verdict based on a claim of First Amendment right “to expose what they believed were matters of public concerns.” On Tuesday September 17, the Michigan Court of Appeals upheld the verdict ruling that Latture’s emails had been read more than 9,000 times by the defendants, and were private. The court also found that the actions of the defendants had caused emotional distress which was intentionally inflicted by the defendants.

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Raogo Ouedraogo of Philadelphia was convicted by a jury on charges of conspiracy to commit bank fraud, conspiracy to commit kidnapping, and kidnapping resulting in death in the 2007 death of Donald Dietz of Saranac. Dietz disappeared in 2007, his body never found. Ouedraogo was sentenced to life in prison.

Ouedraogo allegedly conspired with Rami Saba, who was the alleged mastermind of the scheme designed to kill Dietz so that the two men could obtain $450,000 Dietz had in savings, according to a news article at Mlive.com. In May of 2011, Ouedraogo’s attorney requested that the judge either order a new trial for his client, or find him not guilty. In a 75-page document, Ouedraogo’s attorney Larry Willey claimed that the evidence against his client was insufficient for a conviction that carries a mandatory sentence of life in prison. Willey also alleged that in rebuttal closing arguments, some of the things said by the government were “flagrant acts of misconduct.”

In December of 2011, Ouedraogo was set free after a federal judge acquitted him of the kidnapping resulting in death charge. U.S. District Judge Janet Neff found that the evidence against the defendant was insufficient to support his conviction by a jury on the kidnapping charge and others. The judge said that most of the evidence in the case pointed to co-defendant Saba, that very little of what she called circumstantial evidence presented by the government implicated Ouedraogo.

Now, a federal appeals court has reversed the judge’s decision on conspiracy charges, although the Sixth Circuit Court of Appeals in Cincinnati did affirm the judge’s ruling on the kidnapping resulting in death charge. Neff had granted the defendant a new trial; that order was also reversed by the appeals panel. Ouedraogo’s case was remanded to Grand Rapids U.S. District Court by the appeals court for sentencing.

Michigan appellate law attorneys understand just how complex these types of cases can be. While the defendant won his freedom for nearly two years, it appears he may now be going back to prison.

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On Monday September 9, 21-year-old Kesean Wilson pleaded guilty to two counts of armed robbery in an October 2012 incident in which he allegedly used a gun to rob a credit union in Jackson. He is scheduled to be sentenced by Jackson County Circuit Judge Thomas Wilson on October 31, according to a news article at Mlive.com.

Wilson was initially charged with three counts of armed robbery, fleeing and eluding police, and using a firearm to commit a felony. In exchange for his plea, prosecutors dismissed the fleeing and eluding charge, lesser bank robbery charges, and one count of armed robbery.

The minimum sentence for the crimes Wilson has admitted to committing is 12 1/2 to 19 1/2 years in prison according to Assistant Prosecutor Nick Mehalco Jr.’s preliminary calculations. The defendant’s attorney believes his client will serve a minimum of 10 years for the armed robbery of the Jackson City County Credit Union.

Wilson went inside the credit union and took money from two teller’s stations after putting a handgun to a customer’s head, then jumping the counter. He also took $100 from the customer whose head he had held a gun to. While one of the credit union clerks testified that she feared for her life, one employee said that the defendant apologized even as he was committing the robbery, saying “I have to do this for my family.” Wilson’s attorney said his client does not have a terrible crime record, and that he is just a young man who never denied his guilt.

Wilson appealed, claiming that it was unfair for prosecutors to charge him with so many criminal offenses. The Court of Appeals declined to hear the defendant’s appeal.

Wilson’s mother has been in prison for a number of years for shooting a rival drug dealer. Wilson and his 19-year-old sister, who pleaded guilty to unarmed robbery in the credit union robbery, allegedly needed the money for their mother, who was in need of $20,000 to publish a book she is writing.

Michigan criminal appeals attorneys would agree that this is a sad case. It is apparent that Wilson and his sister have had a difficult life considering their mother is in prison. While there is no excuse for committing a serious criminal offense, young adults often make bad decisions which can result in serious punishment.

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