Opinion
No. 350148
07-30-2020
In re RICARDO ANTHONY GRAY, Minor. PEOPLE OF THE STATE OF MICHIGAN, Petitioner-Appellee, v. RICARDO ANTHONY GRAY, Respondent-Appellant.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Wayne Circuit Court Family Division
LC No. 17-001923-DL Before: MARKEY, P.J., and M. J. KELLY and BOONSTRA, JJ. PER CURIAM.
Respondent appeals by right the April 9, 2019 dispositional order of the trial court holding that respondent had violated his in-home juvenile probation, placing him on out-of-home juvenile probation, and removing him from his parents' home. However, on appeal, respondent raises no argument with respect to that order, but instead challenges the April 4, 2018 order of adjudication placing him on in-home juvenile probation. We conclude that this challenge is not properly before this Court, and therefore affirm.
I. PERTINENT FACTS AND PROCEDURAL HISTORY
Respondent, a juvenile at the time of the proceedings below, was the subject of a juvenile delinquency petition filed in 2017. Petitioner alleged that respondent had assaulted or assaulted and battered, see MCL 750.81, a gas station store clerk during an altercation that arose after the store clerk asked him to leave the premises. The trial court held an adjudication hearing on the petition on April 4, 2018. During petitioner's rebuttal closing argument, petitioner moved to amend the petition to add one count of criminal trespass, MCL 750.552. Over respondent's objection, the trial court granted petitioner's oral motion and permitted the amendment of the petition. The trial court then concluded that the evidence presented was insufficient to support a finding that respondent had committed assault or assault and battery, but that respondent had committed criminal trespass. The trial court entered an adjudication order reflecting this finding, and directed that respondent be placed on in- home probation, attend school regularly, receive a neurological examination and psychotherapy, and obtain an updated Individualized Education Plan.
In November 2018, petitioner filed a violation of probation petition, alleging that respondent had failed to comply with the conditions of his probation in several respects, including by testing positive for marijuana and by failing to enroll in or attend several required programs. At the pretrial hearing on the petition, respondent waived his right to trial and admitted that he had used marijuana and failed to enroll in or attend several required programs. Respondent's admissions were confirmed by testimony from respondent's case manager. The trial court determined that respondent had violated his probation and ordered that respondent be placed on out-of-home juvenile probation.
This appeal followed. On appeal, respondent challenges only his adjudication of criminal trespass.
We directed the parties to file supplemental briefs regarding the impact, if any, of In re Ferranti, 504 Mich 1; 934 NW2d 610 (2019), on this case. The parties did so and, as we will discuss later in this opinion, both parties argued that Ferranti does not apply.
See In re Gray, unpublished order of the Michigan Court of Appeals, entered June 9, 2020 (Docket No. 350148).
II. STANDARD OF REVIEW
The collateral-attack rule is a common-law rule, the interpretation and application of which we review de novo as a question of law. See Haksluoto v Mt Clemens Regional Med Ctr, 500 Mich 304, 310; 901 NW2d 577 (2017).
III. ANALYSIS
Petitioner argues that respondent's challenge to the April 4, 2018 adjudication order is an impermissible collateral attack. We agree.
An impermissible collateral attack occurs "whenever challenge is made to judgment in any manner other than through direct appeal." People v Howard, 212 Mich App 366, 369; 538 NW2d 44 (1995). With regard to adults convicted of criminal offenses and sentenced to probation, our Supreme Court has noted that an appeal by right is available immediately after a defendant is convicted and sentenced; additionally, a probationer has the right to appeal a trial court's order holding that he has violated his probation. People v Pickett, 391 Mich 305, 316; 215 NW2d 695 (1974). The Court in Pickett held that the scope of each appeal by right is limited; an appeal taken after conviction and the imposition of probation may "only cover matters arising up to that time," while an appeal taken after a probation violation hearing "must necessarily be limited to those matters relating to the probation violation and the hearing thereon." Id. at 316. At the time Pickett was decided, the Michigan Constitution provided that an appeal by right could be taken from every conviction, even those arising from a guilty plea. This was later altered by constitutional amendment, as discussed in People v Kaczmarek, 464 Mich 478, 481-484; 628 NW2d 484 (2001). However, the Kaczmarek Court explicitly validated Pickett's holding regarding the scope of an appeal by right following a probation violation hearing, stating: "We caution that defendant's appeal of right is limited in scope. It encompasses only those issues that he could not have raised in an appeal from his 1995 marijuana conviction. . . . Moreover, defendant's plea of guilty on the allegation that he violated his probation subsumes any factual question whether the probation was violated." Id. at 485 (citations omitted). The rationale of Pickett has been applied by this Court to bar probationers from challenging their initial conviction and sentence when appealing a subsequent order finding a probation violation. See, e.g., People v Irving, 116 Mich App 147, 150; 321 NW2d 873 (1982).
Juvenile delinquency proceedings are closely analogous to the criminal process, and " 'when addressing a question implicating the juvenile code, this Court routinely looks to the adult criminal code and cases that interpret it so long as they are not in conflict or duplicative of a juvenile code provision.' " In re Kerr, 323 Mich App 407, 414; 917 NW2d 408 (2018), quoting In re Killich, 319 Mich App 331, 337; 900 NW2d 692 (2017). This Court has applied the rule of Pickett in a juvenile probation context. See Matter of Madison, 142 Mich App 216; 369 NW2d 474 (1985). In Madison, the respondent appealed his probation violation and placement in a training facility, but raised issues related to his original conviction and sentence, which he had not appealed. This Court declined to review those issues, holding that "[s]ince Madison could have appealed his original disposition as of right, this appeal of right following the determination of a probation violation and the placement in a training facility must necessarily be limited to those matters relating to the probation violation and the hearing thereon." Id. at 219.
Although this Court is not bound by its opinions published prior to November 1, 1990, we may consider them persuasive. MCR 7.215(J)(1).
These cases make clear that, unless some special feature of a juvenile delinquency proceeding compels a finding otherwise, a respondent's challenges to an adjudication order are impermissible collateral attacks. As stated, we directed the parties to address whether the rule announced in Ferranti regarding child-protective proceedings applied to a juvenile delinquency proceeding under the Juvenile Code. In Ferranti, our Supreme Court declared that a parent could challenge errors in the adjudication phase of a child-protective case when appealing the termination of his or her parental rights, overruling In re Hatcher, 443 Mich 426, 505 NW2d 834 (1993), which had declared such challenges to be impermissible collateral attacks. Ferranti, 504 Mich at 22-29. The Court noted that child-protective proceedings are "a single continuous proceeding," that the adjudicative and dispositional phases were not separate cases, and that the Hatcher rule prevented "review of mistakes in the government process that permanently separates a parent from a child" unless a parent availed themselves of an interlocutory appeal. Id. at 23, 29 (quotation marks and citations omitted).
In their supplemental briefs, both parties argued that Ferranti's rationale should not be extended to juvenile delinquency proceedings. Moreover, Ferranti has never been applied in the juvenile delinquency context. Consequently, under the current state of the law and based on the parties' agreement that Ferranti does not apply, we decline to apply Ferranti in this case. We also do not find Ferranti to be applicable here. Because parents have "[a] fundamental right to direct the care, custody, and control" of their children, and because "[a] child protective proceeding is 'a single continuous proceeding,' " Ferranti held that a post-dispositional appeal of an adjudication error was not a collateral attack in that context. Ferranti, 504 Mich at 23 (citations omitted). Additionally, the Ferranti Court noted that the interest in finality that underlies the collateral-attack rule must be balanced "against the Legislature's intent as expressed in the juvenile code to support children in their homes . . . and the protection of the constitutional rights of families." Id. at 28. In the context of a child protective proceeding, the Court found that the required balancing favored not applying the collateral-attack rule when a parent was faced with the permanent deprivation of a fundamental liberty interest and could only seek review of the adjudication order by interlocutory appeal, "disincentivizing him or her from timely cooperating with the Department and further delaying a final determination. Id. at 28-29.
A juvenile delinquency proceeding is a different animal entirely and, as noted, is more akin to the criminal process. And although these proceedings also may involve the deprivation of liberty, any such deprivation generally is not (unlike in the child protective proceeding context) permanent, and the procedures that govern juvenile delinquency proceedings provide adequate due process protections. Those protections include, as expressly occurred in this case, promptly informing a respondent of his right to appeal an adjudicative order and of the time frame for doing so. We therefore conclude that the concerns that animated the Court in Ferranti are not present here. Despite being informed, at the time of his adjudication, of his right to appeal the adjudication and sentence, respondent chose not to do so, and the time for an appeal of the adjudication and sentence has now long since passed. Kaczmarek, 464 Mich at 485. For all of these reasons, we see no proper basis to extend Ferranti to cases such as respondent's, and therefore, under Pickett, Kaczmarek, and Madison, we hold that respondent's challenges to the order of adjudication are impermissible collateral attacks, and we decline to address them.
Although we find respondent's untimely challenge to the adjudication to be barred, we do not look with favor on the trial court's grant of petitioner's motion to amend the petition to add a new charge after the close of proofs. Generally, "[a] petition or other court record may be amended at any stage of the proceedings as the ends of justice require." MCL 712A.11(6). Under the criminal code, "an information may be amended at any time before, during, or after trial to cure any defect, imperfection, or omission in form or substance . . . as long as the accused is not prejudiced by the amendment and the amendment does not charge a new crime." People v Higuera, 244 Mich App 429, 444; 625 NW2d 444 (2001) (emphasis added); MCR 6.112(H). An amendment may prejudice a defendant if it causes " 'unfair surprise, inadequate notice, or insufficient opportunity to defend.' " People v McGee, 258 Mich App 683, 688; 672 NW2d 191 (2003), quoting People v Hunt, 442 Mich 359, 364; 501 NW2d 151 (1993). In this case, petitioner sought to amend the petition and add a charge of trespass during its rebuttal closing argument. The trial court allowed petitioner to amend the petition, stating that petitioner could amend "up until the Court has rendered its recommendation." Respondent was not provided an opportunity to defend against the trespass allegation and was not provided notice of petitioner's intent to amend the petition until after respondent's closing argument. This procedure, at a minimum, raises procedural due process concerns. See In re Carey, 241 Mich App 222, 227; 615 NW2d 742 (2000) (noting that due process requires that the juvenile have notice of the charges against him). Nonetheless, the trial court's order went unchallenged on direct appeal, and "the interests of finality and of administrative consequences" implicated by the collateral-attack rule prevent us from revisiting that issue here. People v Ingram, 439 Mich 288, 291; 484 NW2d 241 (1992).
Affirmed.
/s/ Jane E. Markey
/s/ Michael J. Kelly
/s/ Mark T. Boonstra