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People v. Kasben

Court of Appeals of Michigan

April 24, 2018

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
v.
WILLIAM KASBEN, Defendant-Appellant.

         Leelanau Circuit Court LC No. 15-001880-FC

          Before: Murphy, P.J., and Jansen and Swartzle, JJ.

          Murphy, J.

         Defendant was charged with first-degree criminal sexual conduct (CSC I), MCL 750.520b, arising out of an alleged act of sexual penetration in 1983, with the prosecution also giving notice that it would seek enhancement of any sentence on the basis of defendant's status as a fourth-offense habitual offender, MCL 769.12. Defendant was subsequently convicted by guilty plea of second-degree criminal sexual conduct (CSC II), MCL 750.520c, and sentenced to 10 to 15 years' imprisonment. His efforts to withdraw his guilty plea and to otherwise obtain relief from or set aside the judgment were rejected. Relevant to this appeal, one of the grounds raised by defendant in his post-sentence motions seeking to avoid the guilty plea was that the CSC I charge was barred by the statute of limitations, which defense he was completely unaware of when pleading guilty, as neither his counsel nor the trial court informed him of the defense. Defendant appeals by leave granted the trial court's order denying his motion for relief from judgment. We hold that the CSC I charge was not time-barred under MCL 767.24. Accordingly, we affirm.

         As reflected in defendant's statements that formed the factual basis for his guilty plea, defendant admitted that when he was 17 years old, he had sexual intercourse with his 13-year-old sister in 1983. At the time of the crime, the period of limitations for all CSC offenses was six years, falling within the general catch-all provision. MCL 767.24, as amended by 1954 PA 100. With the enactment of 1987 PA 255, which was made effective March 30, 1988, MCL 767.24 was amended to provide that CSC offenses "may be found and filed within 6 years after the commission of the offense or by the alleged victim's twenty-first birthday, whichever is later." The victim turned 21 years old on August 13, 1991. According to information in defendant's presentence investigation report (PSIR), defendant left Michigan sometime in 1989 or 1990, and definitely before the victim turned 21 years of age, residing in several other states, including a lengthy prison stint in Montana, before returning to Michigan in approximately 2004.[1] And MCL 767.24(10) provides that "[a]ny period during which the party charged did not usually and publicly reside within this state is not part of the time within which the respective indictments may be found and filed."[2] During the period in which defendant did not reside in Michigan, our Legislature, pursuant to 2001 PA 6, once again amended MCL 767.24, effective May 2, 2001, now providing that CSC I "may be found and filed at any time." (Emphasis added.)

         On May 18, 2015, defendant was charged with CSC I for the 1983 act of sexual intercourse with his sister. The prosecution also gave notice of seeking a sentence enhancement under MCL 769.12, asserting that defendant had three or more prior felony convictions. On August 4, 2015, defendant pleaded guilty to CSC II in exchange for the prosecution dismissing the CSC I charge and dropping the habitual notice. On September 9, 2015, defendant was sentenced to 10 to 15 years' imprisonment. After sentencing, there were multiple motions and applications for leave to appeal that were filed by two different attorneys representing defendant, wherein defendant unsuccessfully sought to withdraw or otherwise avoid his guilty plea. The subject of this appeal is defendant's last post-sentence motion, which was a motion for relief from judgment brought pursuant to MCR 2.612. Defendant raised the argument concerning the statute of limitations, claiming that the charged offense of CSC I was time-barred and that he was never informed of the defense before pleading guilty to CSC II. We note that the issue was not raised in earlier appellate proceedings.

         The trial court, although finding that a statute of limitations defense had been available to defendant on the CSC I charge, denied the motion after concluding that defendant waived the defense, as well as any related ineffective assistance claim, by pleading guilty, as opposed to pleading no contest. The trial court, relying on People v Budnick, 197 Mich.App. 21; 494 N.W.2d 778 (1997), determined that there could be no tolling despite defendant's time away from Michigan, because the tolling provision was inapplicable in connection with the twenty-first-birthday period of limitations. Further, on the basis that defendant pleaded guilty, reciting the factual basis for the crime, and not no contest, the trial court distinguished the instant case from the Michigan Supreme Court's order in People v Cagle, 472 Mich. 884 (2005), which stated:

In lieu of granting leave to appeal, the case is remanded to the Oakland Circuit Court for a hearing to determine whether defendant received ineffective assistance of counsel. Defendant was charged with and pleaded no contest in 1992 to six counts of first-degree criminal sexual conduct based on alleged acts committed between June of 1979 and November of 1981. At the time defendant entered his plea, the charges against him were barred by the six-year period of limitations of MCL 767.24 in effect at the time the crimes were allegedly committed. The circuit court shall determine whether defendant was informed by his counsel of the expiration of the period of limitations on the charges brought against him and whether defendant indicated that he wished to waive this defense. If the circuit court determines that defendant was not so informed and did not knowingly waive the defense, the court shall vacate defendant's convictions .....

         Defendant filed an application for leave to appeal with this Court, and the panel's order provided as follows:

The Court orders that the application for leave to appeal is GRANTED. We note that at the time defendant filed his motions to set aside judgments, his only avenue for relief was pursuant to MCR 6.500. In addition to the issue raised in the application, we direct the parties to address whether defendant is entitled to relief from judgment pursuant to MCR 6.508(D). MCR 7.205(E)(4). [People v Kasben, unpublished order of the Court of Appeals, entered August 10, 2017 (Docket No. 337082).[3]

         On appeal, defendant argues that the trial court erred by ruling that defendant waived his statute of limitations defense to CSC I when he pleaded guilty, given that, according to defendant, he had never been informed of the defense by anyone. Defendant contends, therefore, that he is entitled to relief from judgment pursuant to MCR 6.508(D).

         Our holding is ultimately one that is based on the construction of MCL 767.24 and the application of its tolling provision and the various amendments to the statute over the years. We review de novo issues of statutory construction. People v Hill, 486 Mich. 658, 665-666; 786 N.W.2d 601 (2010). With respect to MCR 6.508, "[w]e review a trial court's decision on a motion for relief from judgment for an abuse of discretion and its findings of facts supporting its decision for clear error." People v Swain, 288 Mich.App. 609, 628; 794 N.W.2d 92 (2010).

         With respect to the principles governing statutory construction, our Supreme Court in People v Morey, 461 Mich. 325, 329-330; 603 N.W.2d 250 (1999), observed:

In [interpreting a statute], our purpose is to discern and give effect to the Legislature's intent. We begin by examining the plain language of the statute; where that 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. We must give the words of a statute their plain and ordinary meaning, and only where the statutory ...

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