Thursday, September 11, 2008

09112008 - Undersheriff Bruce Gualtiere - Acquitted - Kalkaska County SD

Also See:
Kalkaska Undersheriff Bruce Gualtiere charged with domestic violence
[ June 28, 2008]
 http://michiganoidv.blogspot.com/2008/06/undersheriff-bruce-gualtiere-kalkaska.html





Kalkaska undersheriff returns to duty after cleared of domestic violence charge
by The Grand Rapids Press
Friday September 12, 2008, 6:24 PM
KALKASKA COUNTY
http://www.mlive.com/grpress/news/index.ssf/2008/09/kalkaska_undersheriff_returns.html

-- Undersheriff Bruce Gualtiere returned to work Friday after he was cleared of a misdemeanor domestic violence charge alleging he assaulted his 17-year-old stepson by pushing him into a garage door.

Gualtiere had been on administrative leave since the June 28 complaint was filed. Sheriff Bill Artress said the system worked and that a jury, which found Gualtiere not guilty on Thursday, came to the right conclusion.












Sheriff William Artress announced on Friday that the case was closed and Gualtiere would be returning to work on Friday.WPBN News, Michigan
Friday, September 12, 2008 at 11:54 a.m.
http://upnorthweather.com/news/news_story.aspx?id=190071

Kalkaska County's Undersheriff is found not guilty in an assault case involving his step son.

The trial for Bruce Gualtiere took place Thursday in Grand Traverse County.

Investigators say on June 28th the Undersheriff had an argument with his 17- year- old step son that led to what was called "a small pushing and shoving incident."

Gualtiere was on paid leave pending the outcome of the trial. Sheriff William Artress announced on Friday that the case was closed and Gualtiere would be returning to work on Friday.













KALKASKA COUNTY UNDERSHERIFF CLEARED ON ALL CHARGES
WWUP News, Michigan
Posted: 9/12/2008
http://www.9and10news.com/category/story/?id=142196

Kalkaska County Undersheriff Bruce Gualtiere will be headed back to work after a Grand Traverse County jury found him not guilty on assault charges.

Gualtiere was charged for an alleged dispute with his stepson back in June.

Since the incident, Gualtiere was placed on paid suspension from his job at the Kalkaska Sheriff's Department.

We'll have more on this story coming up on 9 &10 News at five and six..







Monday, September 8, 2008

09082008 - Officer David Essad - Sentenced - Shelby Township PD


Also See:

Officer David Essad charged with felonious assault and domestic violence [April 12, 2008]







Officer David Essad : Assaulted wife And 
broke her nose




ORIGINAL CHARGES: FELONIOUS ASSAULT; AND AGGRAVATED DOMESTIC VIOLENCE. PLED DOWN TO AGGRAVATED MISDEMEANOR ASSAULT





MDOC NUMBER: 699508
CURRENT STATUS: PROBATIONER
LOCATION: OAKLAND/TROY/PROBATION
SECURITY LEVEL:
SUPERVISION BEGIN DATE:
09/09/2008
SUPERVISION DISCHARGE DATE: 09/09/2010

SENTENCE 1:
OFFENSE: DOMESTIC VIOLENCE-AGGRAVATED
MCL #: 750.81A2
COURT FILE # : 08220733-FH
COUNTY: OAKLAND
CONVICTION TYPE: PLEA
MINIMUM SENTENCE:
MAXIMUM SENTENCE: 2 YEARS 0 MONTHS
DATE OF OFFENSE: 04/12/2008
DATE OF SENTENCE: 09/08/2008

SENTENCE 2:
OFFENSE: DOMESTIC VIOLENCE- AGGRAVATED

MCL #: 750.81A2
COURT FILE # : 08220733-FH
COUNTY: OAKLAND
CONVICTION TYPE: PLEA
MINIMUM SENTENCE:
MAXIMUM SENTENCE: 2 YEARS
DATE OF OFFENSE: 04/12/2008
DATE OF SENTENCE: 09/09/2008

SUPERVISION CONDITIONS:
01-NO VIOLATIONS OF ANY CRIMINAL LAW
02-NOT LEAVE STATE W/O PERMISSION
02.0-NOT USE/POSSESS ALCOHOL OR INTOXICANTS
02.1-ALCOHOL TESTING
02.2-DRUG TESTING
02.4-NOT USE OF HAVE ANY CONTROLLED SUBSTANCES OR DRUG ITEMS
02.8-OUTPATIENT SUBSTANCE ABUSE TREATMENT
03-MONTHLY REPORTING
03.3-APPLY TO MENTAL HEALTH TREATMENT PROGRAM
03.4-MUST ATTEND PROGRAMS REQUIRED
04-NOTIFY OF CHANGE OF RESIDENCE
04.18-BEHAVIOR
04.20-NOT OWN OR POSSESS WEAPONS
06.4-MAINTAIN EMPLOYMENT OF AT LEAST 30 HOURS PER WEEK
08.0-SERVE JAIL TIME AS DESCRIBED
08.2-PAY A CRIME VICTIM’S ASSESSMENT
08.3-PAY SUPERVISION FEE PURSUANT TO PA 185 OF 1993
08.4-PAY COURT COST
08.11-ASSIGNMENT OF WAGES UNTIL ORDERED ASSESSMENTS ARE PAID
08.18-STATE COSTS






Former cop gets probation in assault trial
By CHRIS WILLIAMS
Source Staff Writer
PUBLISHED: Sunday, September 14, 2008
http://www.sourcenewspapers.com/stories/091408/loc_story19001.shtml

A former Shelby Township police officer arrested last April for domestic violence has been sentenced to two years probation by an Oakland County Judge. The Honorable Shalina Kumar sentenced David Essad on two counts of aggravated domestic violence in Oakland County Circuit Court on Sept. 9. Essad had been arrested in Rochester in April after a fight with his wife resulted in her receiving a black eye, bruised lip, broken nose and a closed-head injury that was discovered later. Essad pleaded guilty to the charges in front of Kumar on Aug. 5.

Essad, an 8-year veteran of the Shelby Township Police Department, had initially been charged with felonious assault, which could have resulted in jail time, but the charges were lowered when his wife submitted a letter to the court stating that the situation was an isolated incident that happened because both she and Essad had been drinking.

Essad, who has been in alcohol treatment since the incident, briefly addressed Kumar at the sentencing.

“This unfortunate incident was a direct result of my abuse of alcohol,” he said. He informed Kumar that he and his wife are undergoing marital counseling, and said he will do what it takes to become an upstanding citizen.

Kumar agreed to sentence Essad to two years probation for each count. Kumar also ordered Essad to have no alcohol in his system, submit to alcohol and drug testing, and continue his participation in an alcohol treatment program. He is not to carry a firearm except for his employment; during the fight with his wife, he had taken his gun out of the holster and banged it on his car’s window.

Essad, who is currently working as a security guard, was terminated from his position with the police department June 16. Police Chief Robert Leman stated in a letter to Essad that his behavior on April 12 tarnished the reputation of the Shelby Township Police Department. With the charges lowered from a felony to misdemeanors, Essad will be able to appeal the termination through his union representative, said his lawyer, Jerome Sabbota.

“He would have to have a hearing in front of the union,” said Shelby Township Police Capt. Stephen Stanbury. “He has already filed a grievance, so that’s where it starts.”

Stanbury said Essad’s record with the police department was previously clear of any outstanding violations.

“He didn’t have anything egregious on there,” he said. “His record was pretty clean, but that’s really all I can say.”










Fired Shelby cop pleads guilty to misdemeanors
PUBLISHED: Friday, August 8, 2008
By Shaun Byron
Journal Register News Service
http://www.macombdaily.com/stories/080808/loc_local06.shtml

A former Shelby Township police officer could face jail time after pleading guilty to two counts of aggravated domestic violence and admitting assaulting his wife.

David Essad, 34, appeared Tuesday morning before Oakland County Circuit Court Judge Shalina Kumar on charges that he beat his wife, Julie Essad, and threatened to kill her while holding a gun last April. She has since filed for divorce.

David Essad had been charged with felonious assault with a gun, a 4-year felony, and aggravated domestic violence, a 1-year misdemeanor.

The Oakland County Prosecutor's Office made an agreement with his attorney, Jerome Sabbota, to amend the charges in exchange for a plea.

The prosecutor's office and Kumar also had received a letter from Julie Essad, stating David Essad had been complying with court-ordered treatment for alcohol abuse and has remained sober.

Kumar also granted requests to lift a no-contact order and cancel the tether, which were all part of his bond requirements.

David Essad will return before Kumar to be sentenced Sept. 9.

Essad has been fired from his job as a Shelby Township police officer. He has filed a grievance over the discharge and the issue is headed to arbitration.

In May, Julie Essad testified at a preliminary exam in 52-3 District Court that she and her husband had been at Gus O'Connor's in Rochester on April 11 to celebrate her birthday.

She told the court that David Essad drank heavily, became upset because she spoke to an ex-boyfriend, and began yelling and swearing at her in the car as she drove them home.

Julie Essad said he repeatedly pulled her hair and banged her head against the driver's side window.

She said she pulled into a parking lot, where David Essad continued to scream and bit her ear.

David Essad, she said, then brandished his gun and made threats to kill her.

Sabbota said if his client continues to abide by the court's requirements, he will be allowed to continue working as an officer because the felony charge was dropped.

David Essad, he said, is looking forward to settling the issue and continuing with his life










Officer accused of assault pleads guilty
By SHAUN BYRON
The Oakland Press
August 06, 2008
http://www.theoaklandpress.com/stories/080608/pol_20080806405.shtml

A former Shelby Township police officer could face jail time after pleading guilty to two counts of aggravated domestic violence and admitting to assaulting his wife.

David Essad, 34, appeared Tuesday morning before Oakland County Circuit Court Judge Shalina Kumar on charges that he beat his wife, Julie Essad, and threatened to kill her while holding a gun last April. She has since filed for divorce.

David Essad had been charged with felonious assault with a gun, a four-year felony, and aggravated domestic violence, a one-year misdemeanor.

The Oakland County Prosecutor's Office made an agreement with his attorney, Jerome Sabbota, to amend the charges in exchange for a plea.

The prosecutor's office and Kumar also had received a letter from Julie Essad, stating David Essad had been complying with court-ordered treatment for alcohol abuse and has remained sober.

Kumar also granted requests to lift a no-contact order and cancel the tether, which were all part of his bond requirements.

The requests were made by David Essad and included in his wife's letter.

David Essad will return before Kumar to be sentenced Sept. 9.

In May, Julie Essad testified at a preliminary exam in 52-3 District Court that she and her husband of 51Ú2 years had been at Gus O'Connor's in Rochester on April 11 to celebrate her birthday.

She told the court that David Essad drank heavily, became upset because she spoke to an ex-boyfriend, and began yelling and swearing at her in the car as they drove home.

Julie Essad said he repeatedly pulled her hair and banged her head against the driver's side window.

She said she pulled into a parking lot, where David Essad continued to scream and bit her ear.

David Essad, she said, then brandished his gun and making threats to kill her.

Sabbota said if his client continues to abide by the court's requirements, he will be allowed to continue working as an officer because the felony charge was dropped.

David Essad, he said, is looking forward to settling the issue and continuing with his life.


Michigan Officer Involved Domestic Violence

Thursday, August 28, 2008

08282008 - Firefighter Matthew Cook - Appeal

OIDV OFFENDER: FIREFIGHTER MATTHEW COOK [FIREFIGHTER WAYLAND FIRE DEPARTMENT]







*Also see Cook’s first appeal [to have the CSC thrown out, and argued that the Court erred in scoring an offense variable to reflect prolonged pain and humiliation inflicted by Cook towards his victim.] : http://michiganoidv.blogspot.com/2009/10/oidv-offender-appeal-firefighter.html



CHARGED WITH CHILD PORNOGRAPHY WHILE ON PROBATION FOR DOMESTIC VIOLENCE ASSAULT: [ http://michiganoidv.blogspot.com/2004/03/firefighter-matthew-cook-wayland-fd.html ].

COOK WAS CONVICTED OF ASSAULT WITH INTENT TO COMMIT SEXUAL PENETRATION; 2 COUNTS OF 3RD DEGREE CRIMINAL SEXUAL CONDUCT; GROSS INDECENCY; AND 1ST DEGREE CRIMINAL SEXUAL CONDUCT.

ON 04/04/2008, COOK WAS SENTENCED 9 YEARS TO LIFE IN PRISON.

ON 08/28/2008, COOK FILED AN APPEAL ON THE 25 POINTS HE WAS ASSESSED, WHEN HE WAS CLASSIFIED AS A "SEXUALLY DELINQUENT PERSON".

ON 12/10/2009 THE MICHIGAN COURT OF APPEALS AFFIRMED THE TRIAL COURT'S DETERMINATION OF COOK'S STATUS AS A SEXUALLY DELINQUENT PERSON, BUT VACATED HIS SENTENCES AND REMANDED THE CASE FOR RESENTENCING.
MDOC NUMBER: 496094
CURRENT STATUS: PRISONER
LOCATION: MACOMB CORRECTIONAL FACILITY
SECURITY LEVEL: II
EARLIEST RELEASE DATE: 07/18/2017
MAXIMUM DISCHARGE DATE: LIFE

SENTENCE 1:
OFFENSE: CSC- ASSAULT W/ INTENT TO COMMIT SEXUAL PENETRATION

MCL #: 750.520G1
COURT FILE # : 07015431-FH-C
COUNTY: ALLEGAN
CONVICTION TYPE: JURY
MINIMUM SENTENCE: 5 YEARS 7 MONTHS
MAXIMUM SENTENCE: 10 YEARS 0 MONTHS
DATE OF OFFENSE: 04/01/2004
DATE OF SENTENCE: 04/04/2008

SENTENCE 2:
OFFENSE: CRIMINAL SEXUAL CONDUCT, 3RD DEGREE [FORCE OR COERCION]

MCL #: 750.520D1B
COURT FILE # : 07015431-FH-C
COUNTY: ALLEGAN
CONVICTION TYPE: JURY
MINIMUM SENTENCE: 10 YEARS 0 MONTHS
MAXIMUM SENTENCE: 15 YEARS 0 MONTHS
DATE OF OFFENSE: 04/01/2004
DATE OF SENTENCE: 04/04/2008

SENTENCE 3:
OFFENSE: CRIMINAL SEXUAL CONDUCT, 3RD DEGREE [FORCE OR COERCION]

MCL #: 750.52D1B
COURT FILE # : 07015431-FH-C
COUNTY: ALLEGAN
CONVICTION TYPE: JURY
MINIMUM SENTENCE: 10 YEARS 0 MONTHS
MAXIMUM SENTENCE: 15 YEARS 0 MONTHS
DATE OF OFFENSE: 04/01/2004
DATE OF SENTENCE: 04/04/2008

SENTENCE 4:
OFFENSE: GROSS INDECENCY BETWEEN MALE & FEMALE- COMMITTING / PROCURRING

MCL #: 750.338B / 750.10A
COURT FILE # : 0702979-FH
COUNTY: KENT
CONVICTION TYPE: PLEA
MINIMUM SENTENCE: 7 YEARS 0 MONTHS
MAXIMUM SENTENCE: LIFE
DATE OF OFFENSE: 03/01/2007
DATE OF SENTENCE:08/28/2007

SENTENCE 5:
OFFENSE: CRIMINAL SEXUAL CONDUCT, 1ST DEGREE [PERSON UNDER 13] -SOLICIT

MCL #: 750.520B1A / 769.10
COURT FILE # : 0702979-FH
COUNTY: KENT
CONVICTION TYPE: PLEA
MINIMUM SENTENCE: 3 YEARS 0 MONTHS
MAXIMUM SENTENCE: 5 YEARS 0 MONTHS
DATE OF OFFENSE: 03/01/2007
DATE OF SENTENCE: 08/28/2007

**********
Matthew Cook appeals possible life sentence
By Advance Newspapers
December 21, 2009, 11:27AM
http://www.mlive.com/penaseeglobe/index.ssf/2009/12/matthew_cook_appeals_possible.html
Court of Appeals has ruled for Cook’s resentencing. Cook is currently in prison after attempting to hire a Grand Rapids prostitute to bring him a child between the ages of 10 and 12, for sexual purposes.

Cook pleaded guilty to solicitation to commit first-degree criminal sexual conduct and attempting to procure and act of gross indecency between a male and female. According to the Court of Appeals, Cook was sentenced as a “sexually delinquent person,” for seven years to life on the gross indecency conviction and as a second habitual offender, to a concurrent prison sentence of three to five years for the solicitation conviction. He was sentenced for the March 1, 2008 offense on Aug. 28, 2008.

On Dec. 10, the State of Michigan Court of Appeals ruled in favor of Cook’s resentencing because of errors in procedural requirements regarding Cook’s sexual delinquency determination.

A former Wayland volunteer firefighter, Cook served jail time for using a computer at the city’s Public Safety Building to access child sexually abusive material on the Internet.

Cook also has three active prison sentences for Allegan County CSC offenses committed on April 1, 2004, for which he was sentenced on April 4, 2008 after a jury trial. He is serving up to 10 years for CSC assault with intent to commit sexual penetration, up to 15 years for CSC 3rd degree (force or coercion) and up 15 years for CSC 3rd degree (force or coercion).

**********

MICHIGAN COURT OF APPEALS
PEOPLE OF MI
V
MATTHEW THOMAS COOK

COA Case Number: 287411
SCt Case Number: 137691


1 PEOPLE OF MI PL-AE PRS
(25386) MCMORROW TIMOTHY K
82 IONIA AVENUE NW
SUITE 450
GRAND RAPIDS MI 49503
616-632-6710
Oral Argument:
Timely: Y

2 COOK MATTHEW THOMAS DF-AT SAD
(35933) DAGHER-MARGOSIAN JEANICE
101 N WASHINGTON
14TH FLOOR
LANSING MI 48913
517-334-6069
Oral Argument: Y
Timely: Y

Status: Case Concluded; File Open
SCT Status: CLOSE 01
Case Flags: Guilty Plea; Proposal B Appeal


08/28/2008 -1- Delayed App for Leave - Criminal
Proof Of Service Date: 8/28/2008
Register of Actions: Y
Answer Due: 9/18/2008
Fee Code: PI
Attorney:35933 - DAGHER-MARGOSIAN JEANICE

08/28/2007: -2- Order Appealed From
From: KENT COUNTY CIRCUIT COURT
Case Number: 07-002979-FH
Trial Court Judge: 16129 KOLENDA DENNIS C
Nature of Case:
CSC-1
Gross Indecency
Criminal Miscellaneous
Habitual Offender 1st

08/28/2008: -3- Transcript Filed By Party
Date: 8/28/2008
Filed By Attorney: 35933 - DAGHER-MARGOSIAN JEANICE
Hearings: 7/9/2007 PLEA
Comments: Attached to copies

08/28/2008: -4- Transcript Filed By Party
Date: 8/28/2008
Filed By Attorney: 35933 - DAGHER-MARGOSIAN JEANICE
Hearings: 8/28/2007 SENTENCE
Comments: Attached to copies

08/28/2008: -5- Transcript Filed By Party
Date: 8/28/2008
Filed By Attorney: 35933 - DAGHER-MARGOSIAN JEANICE
Hearings: 5/9/2008 MOTION W/DRAW PLEA
Comments: Attached to copies

08/28/2008: -6- Presentence Investigation Report - Confidential
Date: 8/28/2008
For Party: 2 COOK MATTHEW THOMAS DF-AT
Attorney: 35933 - DAGHER-MARGOSIAN JEANICE

08/28/2008: -24- Notice of Filing Transcript
Date: 8/28/2008
Hearings:
7/9/2007 plea
8/8/2007 sentence
5/9/2008 motion withdraw plea

09/23/2008: –7- Submitted On Motion Docket
Event: 1 Delayed App for Leave - Criminal
District: T Item
#: 7

10/01/2008: -8- Order: Application - Deny - Delayed App for Leave
Event: 1 Delayed App for Leave - Criminal
Panel: KJ,ETF,ELG
Attorney: 35933 - DAGHER-MARGOSIAN JEANICE
Comments: ELG would Grant App, see order.

10/31/2008: -9- File Closed-Out
File Location: F

11/17/2008: -10- SCt: Application for Leave to SCt
Supreme Court No. 137691
Notice Date: 12/9/2008
Fee:
State Check No.:
For Party: 2
Attorney: 35933 - DAGHER-MARGOSIAN JEANICE

12/01/2008: -11- Supreme Court - File Sent To
File Location: Z
Comments: SC#137691

12/01/2008: -12- SCt: COA File - Received

12/08/2008: -13- SCt: Trial Court Record Received
1 files


05/29/2009: -14- SCt Order: Remand as Leave Granted

06/05/2009: -15- Record FiledComments: LCF; --SC Remand

06/05/2009: - 16 - Supreme Court - File Ret`d By - Re-Open as on Leave Granted

06/08/2009: - 17 - Correspondence Sent
For Party: 2 COOK MATTHEW THOMAS DF-AT
Attorney: 35933 - DAGHER-MARGOSIAN JEANICE
Comments: AT Brief Due 7/24/09 - Issue Limited Per MSC Order - AE Brf Due 35 Days From P/S Date of AT Brief

07/23/2009: - 25 - Brief: Appellant
Proof Of Service Date: 7/23/2009
Oral Argument Requested: Y Timely Filed: Y
Filed By Attorney: 35933 - DAGHER-MARGOSIAN JEANICE
For Party: 2 COOK MATTHEW THOMAS DF-AT

07/23/2009: - 26 - Presentence Investigation Report - Confidential
Date: 7/23/2009
For Party: 2 COOK MATTHEW THOMAS DF-AT
Attorney: 35933 - DAGHER-MARGOSIAN JEANICE

08/28/2009: - 27 - Noticed
Record: FILED Mail Date: 8/31/2009

10/08/2009: - 31 - Prosecutor Advisory - No Brief
Attorney: 1141 - KENT COUNTY PROSECUTOR

12/01/2009: - 40 - Brief: Appellee
Proof Of Service Date: 12/1/2009
Oral Argument Requested:
Timely Filed: Y
Filed By Attorney: 25386 - MCMORROW TIMOTHY K
For Party: 1 PEOPLE OF MI PL-AE

12/02/2009: - 37 - Submitted on Case Call
District: G Item #: 16
Panel: JEM,RAB,CMM

12/10/2009: - 47- Opinion - Per Curiam - Unpublished
[SEE BELOW].
Pages: 6
Panel: JEM,RAB,CMM
Result: Affirm in Part, Vacate in Part, Remanded


Case Listing Complete.


***************





**********




**********



STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,


V.

MATTHEW THOMAS COOK, Defendant-Appellant.


UNPUBLISHED
December 10, 2009
No. 287411
Kent Circuit Court
LC No. 07-002979-FH
Before: Markey, P.J., and Bandstra and Murray, JJ.
PER CURIAM.
http://coa.courts.michigan.gov/documents/OPINIONS/FINAL/COA/20091210_C287411_47_287411.OPN.PDF

Defendant pleaded guilty to solicitation to commit first-degree criminal sexual conduct, MCL 750.157b(3)(a) and MCL 750.520b(1)(a), and attempting to procure an act of gross indecency between a male and a female, MCL 750.338b. He was sentenced as a sexually delinquent person, MCL 750.10a, to a prison term of seven years to life for the gross indecency conviction, and as a second habitual offender, MCL 769.10, to a concurrent prison term of three to five years for the solicitation conviction. This Court originally denied defendant’s delayed application for leave to appeal, but our Supreme Court, in lieu of granting leave to appeal, subsequently remanded the case to this Court “for consideration, as on leave granted, of whether twenty-five points were properly assessed for OV 13 (MCL 777.43), and whether the trial court satisfied the provisions of MCL 767.61a when, without objection by the defendant, it reviewed documents but did not call witnesses in determining that the defendant was a sexually delinquent person.” People v Cook, 483 Mich 1023; 765 NW2d 342 (2009). We affirm the trial court’s determination of defendant’s status as a sexually delinquent person, but vacate his sentences and remand for resentencing.
I. Facts
As a factual basis for his plea, defendant stated that he asked a prostitute to bring him a child between ten and twelve years of age for the purpose of mutually engaging in oral sex. Defendant clarified that the prostitute’s role “was to find the child and hold her for me.”

II. Sexual Delinquency Determination
The gross indecency statute prescribes a maximum sentence of five years’ imprisonment, or, alternatively, “if such person was at the time of the said offense a sexually delinquent person,” a term of imprisonment “the minimum of which shall be 1 day and the maximum of which shall be life.” MCL 750.338b.

MCL 750.10a defines “sexually delinquent person” as:

any person whose sexual behavior is characterized by repetitive or compulsive
acts which indicate a disregard of consequences or the recognized rights of others, or by the use of force upon another person in attempting sex relations of either a heterosexual or homosexual nature, or by the commission of sexual aggressions against children under the age of 16.

MCL 767.61a provides that in prosecutions exposing the defendant to an indeterminate
sentence of one day to life as a sexually delinquent person:

the indictment shall charge the offense and may also charge that the defendant
was, at the time said offense was committed, a sexually delinquent person. In
every such prosecution the people may produce expert testimony and the court
shall provide expert testimony for any indigent accused at his request. In the
event the accused shall plead guilty to both charges in such indictment, the court
in addition to the investigation provided for in section 35 of chapter 8 of this act,
and before sentencing the accused, shall conduct an examination of witnesses
relative to the sexual delinquency of such person and may call on psychiatric and
expert testimony. All testimony taken at such examination shall be taken in open
court and a typewritten transcript or copy thereof, certified by the court reporter
taking the same, shall be placed in the file of the case in the office of the county
clerk. Upon a verdict of guilty to the first charge or to both charges or upon a
plea of guilty to the first charge or to both charges the court may impose any
punishment provided by law for such offense. [Footnote omitted; emphasis added.]


In this case, after placing defendant under oath, the trial court advised defendant at the plea proceeding that he was alleged to be a sexually delinquent person, and asked defendant if he understood all the allegations against him, and defendant answered in the affirmative. Defendant then pleaded guilty to the crimes charged, including to being a sexually delinquent person. After establishing the factual basis for the underlying offenses, the court stated that the sexually delinquent person statute “specifies the taking of evidence to decide whether someone is sexually delinquent.” The court acknowledged defendant’s earlier conviction of possession of child sexually abusive material, read a letter defendant had written, and considered defendant’s testimony that was used to establish the factual basis for the plea. Citing the statutory definition of “sexually delinquent person,” the court stated:
[T]he use of force upon another person in attempting sexual relations applies, as does the commission of sexual aggressions against children under the age of 16.

Here, we don’t have any actual aggression of a child of that age, just a desire for it. . . . I guess we don’t have any actual force, because we never did have any acts here. But, we have an admission of a plan to engage in both of the

latter kinds of activities. And, a letter here which lays out in great detail a desire to do that. Not only a desire to do it, but it becomes very apparent from reading this letter that the desire to do it is repetitive. He’s proposing to do lots of things here, and clearly shows a sexual compulsion well beyond that involved in the act, itself.

The law says I have to take evidence, but it doesn’t say of what kind. I haven’t heard any objection from anybody to the use of this evidence. So, I’m prepared to conclude that the definition in section 10a of the Penal Code has been proven in a way required by section 61a of the Code of Criminal Procedure.

***
I also think, frankly, solid evidence of what constitutes the kind of compulsion we’re talking about here as the earlier conviction for utilizing a computer to take advantage of child sexually abusive material. That that act, in and of itself and the use of that kind of material, supports findings that would satisfy section 10a.




A trial court’s general conduct of trial is reviewed for an abuse of discretion. See People v Romano, 181 Mich App 204, 220; 448 NW2d 795 (1989); People v Collier, 168 Mich App 687, 698; 425 NW2d 118 (1988). Statutory interpretation presents a question of law, calling for de novo review. People v Denio, 454 Mich 691, 698; 564 NW2d 13 (1997). At the plea proceeding, defense counsel answered affirmatively when the trial court asked if it had satisfied the procedural requirements for making the sexual delinquency determination, thus leaving this
issue unpreserved. Unpreserved issues are reviewed for plain error affecting substantial rights. See People v Carines, 460 Mich 750, 763; 597 NW2d 130 (1999).

In People v Helzer, 404 Mich 410, 418-419; 273 NW2d 44 (1978), our Supreme Court
addressed the procedure under MCL 767.61a for determining a defendant’s status as a sexually delinquent person in conjunction with a conviction of gross indecency, stating:
It is . . . clear that proof of the sexual delinquency charge may involve more than simple ministerial considerations. Very broad substantive factors come into play when the court or jury decide this question. MCL 767.61a provides for a separate hearing and record, involving psychiatric and expert testimony on the question. Even where defendant pleads guilty, the court is ordered to separately investigate the charge of sexual delinquency. [Footnotes and citation omitted.]

The Court also stated that although MCL 767.61a does not expressly call for it, “we find a separate hearing and record directed by clear implication,” and that “the alternate nature of the sentence requires a hearing and record before a separate jury in cases where defendant does not waive jury trial,” expressing the concern that the jury that decided the underlying charge might tend automatically to also find sexual delinquency. Id. at 419 n 13, 422-423 (emphasis in the original). Although the instant case arises from a guilty plea, the Supreme Court’s insistence that, in a case involving a jury trial, the delinquency question must be decided in a wholly separate proceeding before a new jury underscores the importance of deciding the delinquency question as something apart from the indecency question.

Here, the trial court conducted a hearing on whether defendant was a sexually delinquent person, specifically noting its obligation to take evidence on the issue. As noted, the trial court did take evidence on this issue, and there was no request by either party for the submission of additional evidence. The record and findings were transcribed and placed in the record. Thus, the statute was satisfied.

However, even if it were not, a reviewing court should not reverse over an unpreserved error unless defendant is actually innocent or the error seriously affected the fairness, integrity, or public reputation of judicial proceedings. Carines, supra at 763. The error in this case does not meet this standard. Defendant protests that there were no witnesses, but defendant himself was placed under oath, and he confirmed that he was a sexually delinquent person.1 The court also took into account an earlier conviction involving child sexually abusive material, and a letter in which defendant admitted having the desire to engage in sex with underage persons. In light of the guilty plea and lack of objections, this evidentiary record is more than sufficient to establish defendant’s status as a sexually delinquent person.


III. Scoring of Offense Variable 13

“This Court reviews a sentencing court’s scoring decision to determine whether the trial court properly exercised its discretion and whether the record evidence adequately supports a particular score.” People v McLaughlin, 258 Mich App 635, 671; 672 NW2d 860 (2003). However, to the extent that a scoring issue calls for statutory interpretation, review is de novo. Id.

“This Court will uphold the trial court’s scoring of the guidelines if there is evidence to support it.” People v Phillips, 251 Mich App 100, 108; 649 NW2d 407 (2002), aff’d 469 Mich 390 (2003). Factual findings for sentencing purposes require a mere preponderance of the evidence. See People v Ewing (After Remand), 435 Mich 443, 472-473; 458 NW2d 880 (1990) (Boyle, J., joined by Riley, C.J., and Griffin, J.). Information relied upon may come from various sources, including some that would not be admissible at trial, such as a presentence investigation report (“PSIR”). People v Potrafka, 140 Mich App 749, 751-752; 366 NW2d 35 (1985). See also MRE 1101(b)(3) (the rules of evidence do not apply to sentencing proceedings).

But a criminal defendant has a due process right to be sentenced on the basis of accurate information. People v Hoyt, 185 Mich App 531, 533; 462 NW2d 793 (1990), citing US Const, Am XIV and Const 1963, art 1, § 17. Accordingly, where the guidelines range is adjusted to account for a scoring error, but the original minimum sentence remains within the corrected range, resentencing is required because such a “misapprehension of the guidelines range” constitutes a sentencing decision “in reliance upon inaccurate information.” People v Francisco, 474 Mich 82, 88, 89 n 7; 711 NW2d 44 (2006); MCL 769.34(10).


OV 13 concerns continuing patterns of criminal behavior. MCL 777.43(1). The trial
court scored OV 13 at 25 points, which is prescribed where the offense in question “was part of a pattern of felonious criminal activity involving 3 or more crimes against a person.” MCL 777.43(1)(b). In scoring that variable, a court may take into account the sentencing offense along with other convictions stemming from the defendant’s course of conduct. People v Harmon, 248 Mich App 522, 532; 640 NW2d 314 (2001). Defendant concedes that his earlier conviction of possession of child sexually abusive material qualifies as a felony against a person for purposes of scoring OV 13, but argues that this is the only such felony against a person in his record. Defendant is correct, as soliciting to commit first-degree criminal sexual conduct is classified as a crime against public order, not one against a person. MCL 777.16h. The same is true for gross indecency on the part of a sexually delinquent person. MCL 777.16q. Thus, neither of the instant convictions qualifies as one against a person for purposes of scoring OV 13.

At sentencing, the trial court spoke of having on hand the parent of a child who might have served as a bad-acts witness, who in turn complained of defendant’s “gross and disgusting” behavior in connection with her ten-year old daughter. Indeed, plaintiff had filed a notice of intent to use other acts evidence, which referred to prior sexual acts with a child. However, the record does not indicate precisely what form that behavior, or attendant sexual activity, took, and thus does not indicate whether it constituted a felony against a person for purposes of scoring OV 13.

The PSIR notes that defendant pleaded guilty as part of a plea agreement in which a
separate charge of second-degree criminal sexual conduct was dismissed. But there is no indication that the trial court considered that charge, or found that factual support for the charge was established by a preponderance of the evidence, so it would be premature for us to decide if that matter constitutes a sufficient basis for finding a felony against a person for purposes of scoring OV 13. In any event, even if that matter could be considered, the current record still does not support a finding that defendant committed three or more crimes against a person for purposes of assessing 25 points for OV 13.

Accordingly, because the current record does not support a 25-point score for OV 13, and because a 25-point reduction in defendant’s total OV score affects the appropriate guidelines range, we vacate defendant’s sentences and remand for resentencing.*2


Affirmed in part, vacated in part, and remanded for resentencing. We do not retain
jurisdiction.
/s/ Jane E. Markey

/s/ Richard A. Bandstra
/s/ Christopher M. Murray







*1 Furthermore, defendant’s brief on appeal includes no assertion, let alone an offer of proof, that he was not aware of all his rights when tendering his plea, or that he would have called witnesses, or otherwise opposed the sexual delinquency charge, had he been afforded additional opportunities to do so.

*2 We do not foreclose the possibility that, on remand, the trial court might discover and articulate proper bases for counting uncharged felonies in connection with the potential bad-acts witness, or the dismissed second-degree criminal sexual conduct charge, thereby establishing an adequate basis to score 25 points for OV 13.


MIOIDV. Renee' Harrington. Michigan Officer Involved Domestic Violence.

08282008 - Former Officer Phillip Bal - Charges dismissed [Aurora WI. April 2005 charges] - Iron Mountain PD




Also See:

1995 - Officer Phillip Bal - CSC allegation - Iron Mountain PD

04012004 - Officer Phillip Bal - Home invasion and CSC - Iron Mountain PD

04012005 - Officer Phillip Bal - CSC - Iron Mountain PD

04212006 - Officer Phillip Bal - CSC - Iron Mountain PD

04222006 - Officer Phillip Bal - Suspended - Iron Mountain PD

07112006 - Officer Phillip Bal - Terminated - Iron Mountain PD

07182007 - Former Officer Phillip Bal - Sentenced [April 01, 2004 CSC/Home Invasion Charges] - Iron Mountain PD

08152007 - Former Officer Phillip Bal - Appeal Filed - COA 280009 - Iron Mountain PD

09172007 - Former Officer Phillip Bal - Appeal Filed - COA 280601 - Iron Mountain PD

10182007 - Former Officer Phillip Bal - COA Appeal 280009 - Dismissed - Iron Mountain PD

11082007 - Former Officer Phillip Bal - LE license revoked - Iron Mountain PD

08282008 - Former Officer Phillip Bal - Charges dismissed [Aurora WI. April 2005 charges] - Iron Mountain PD

09232008 - Former Officer Phillip Bal - Appeal COA 280601 - OPINION - Conviction Affirmed - Iron Mountain PD

05242020 - Former Officer Phillip Bal - Released From Prison - Iron Mountain PD













Florence dismisses charges against Bal
August 28, 2008
By NIKKI YOUNK, Staff Writer
Iron Mountain Daily News
http://www.ironmountaindailynews.com/page/content.detail/id/502934/Florence-dismisses-charges-against-Bal.html

FLORENCE, Wis. - Criminal charges against former Iron Mountain police officer Phillip Bal have been temporarily dismissed while officials await an appeal pending in Michigan, said Florence District Attorney Douglas Drexler.

Bal, 35, was originally charged in Florence County with second degree sexual assault-use of force for an alleged April 2005 incident involving an Iron Mountain woman at the C and  R bar in Aurora, Wis.

He is currently serving an 11- to 20-year prison sentence after being convicted of first degree criminal sexual conduct and home invasion in Dickinson County Circuit Court in May 2007.

Drexler explained that Bal is appealing the conviction in Dickinson County and the decision will influence whether or not Drexler reinstates the charges in Florence County.

"If the appeal is granted, we will pursue charges in Wisconsin," Drexler stated. "If not, he's already spending time in prison and we don't want that additional cost to the taxpayers."

Since Bal's trial in Florence was scheduled for Sept. 4, Drexler said that he had to take some kind of action while waiting for the appeal decision. He chose to dismiss the charges without prejudice, meaning that the charges can be reinstated at a later date.

                       









Former cop up on another rape charge
Not guilty plea was made

WLUC -TV6, Negaunee
Posted: Friday, April 18, 2008 at 8:16 a.m.
http://www.wluctv6.com/news/news_story.aspx?id=123000

AURORA, WI -- The former Iron Mountain police officer convicted of rape and home invasion is heading to trial on another sexual assault charge.

Thirty-four-year-old Phillip Bal pled not guilty to sexually assaulting a woman at a bar in Aurora, Wisconsin back in 2005. Bal is expected to face a jury trial on September 4 in Florence County Court. He faces a maximum penalty of a $100,000 fine and no more than 40 years in prison on the second degree criminal sexual conduct charge.

Bal is currently serving 11 to 20 years in prison for his previous convictions.

                     










Bal trial set in Wisconsin
Iron Mountain Daily News
By LISA M. REED,Staff Writer
POSTED: April 16, 2008
http://www.ironmountaindailynews.com/page/content.detail/id/10437.html?showlayout=0

FLORENCE, Wis. — Former Iron Mountain police officer Phillip Bal will be tried on a criminal sexual contact charge-second degree in Florence County in September.

Bal, 34, is currently serving an 11- to 20-year prison sentence after being convicted of criminal sexual conduct-first degree and home invasion-first degree in Dickinson County Circuit Court in May 2007.

Bal’s Florence jury trial is set for Sept. 4, said Florence County District Attorney Doug Drexler.

The charge in Florence County is based on an alleged April 2005 incident involving an Iron Mountain woman at the C & R in Aurora, Wis.

The CSC-second degree charge carries a maximum sentence of 40 years in prison.

Iron Mountain attorney Julie LaCost is representing Bal.

                     








Police officer’s trial delayed
Marquette Mining Journal, MI
August 4, 2007
http://www.miningjournal.net/stories/articles.asp?articleID=18330

IRON MOUNTAIN — The start of a jury trial for a former Iron Mountain Police officer in Florence County has been delayed.

Phillip Bal, 34, was scheduled to appear in Florence County Circuit Court today on a charge of criminal sexual conduct-second degree.

The charge involves an alleged incident in April 2005 involving an Iron Mountain woman at the C & R Bar in Aurora, Wis.

The criminal sexual conduct-second degree charge carries a maximum of 40 years in prison.

Florence County Circuit Court Judge Robert Kennedy heard a motion from attorney Frank Stupak of Escanaba on Tuesday to withdraw as counsel for Bal.

Prior to his sentencing in Dickinson County Circuit Court on charges of criminal sexual conduct-first degree and home invasion-first degree, Bal dismissed Stupak as his legal counsel and retained the services of attorney Sanford Schulman of Detroit. Bal was sentenced to 11 to 20 years in prison.

Judge Kennedy delayed granting Stupak’s motion to withdraw until it can be established who will represent Bal in Wisconsin.

                       









Bal blames media, says victim is lying
The Daily News
By PETE FRECCHIO, Staff Writer
Thursday, July 19, 2007
http://www.ironmountaindailynews.com/stories/articles.asp?articleID=6994

IRON MOUNTAIN — In Dickinson County Circuit Court on Wednesday, convicted sex offender Phillip Bal told Judge Richard Celello he was sentencing "an innocent man.”

Celello, saying he had thought long and hard about his decision, sentenced Bal, 34, of Iron Mountain, to 11 to 20 years in prison.At a jury trial in May, Bal, a former Iron Mountain police officer, was found guilty of criminal sexual conduct-first degree and home invasion-first degree.

The charges were related to an assault on an Iron Mountain woman at her home in April 2004.Celello sentenced Bal to 11 to 20 years on each count. The two sentences will run concurrently. Bal was given credit for 55 days served and ordered to register as a sex offender.

"This is one of the most difficult cases I have ever presided over," Celello told Bal. "(The defense) questioned the decision making methods of the jury. I can’t second guess the jury. I am not punishing you because you are a former police officer," Celello told Bal.

Bal told the court that since he was off-duty when the incident occurred, he should not be held to a higher standard because he was a police officer.

"Bal being a police officer should definitely be considered in determining his sentence," said special prosecuting attorney Jennifer Mazzuchi of Marquette. "When a gang member is involved in a crime, people are not shocked. When a police officer is involved in a crime, people are shocked. It is an abuse of his power."

At his first sentencing hearing on June 27, Bal informed the court he wished to dismiss attorney Frank Stupak of Escanaba and retain the services of appellate attorney Sanford Schulman of Detroit. The change in legal counsel delayed Bal’s sentencing three weeks.

Emotions were running high as supporters of both Bal and the victim filled the benches in the third floor courtroom.

In response to a statement Bal made before the court saying the victim was lying, Judge Celello responded, "The victim is telling the truth. She was brutally assaulted by you. I can’t think of anything short of murder that is as bad as what happened here. Alcohol has caused you terrible problems in your life," Celello said.

Several motions brought forward by Schulman concerning a proposed polygraph test, the jury’s method of reaching a guilty verdict and sentencing guidelines in the pre-sentence report were denied by Judge Celello.

In his statement before the court, an emotional Bal said the justice system let him down.

"I stand before you an embarrassed and humiliated man," he said. "My sinful and immoral action is responsible for everything that has happened.

I apologize to my wife for breaking her trust and violating the sanctity of our marriage. Her love has kept me strong. I will spend the rest of my life making it up to her," Bal said.

"I apologize to my (four) kids, my parents, my family and my friends for what has happened the last 15 months and for letting them down," he continued. "I thank everyone for their letters of support. I thank the people of St. Mary and St. Joseph church for welcoming my family there and for the support they will give them when I am gone. I apologize to (the victim) and her family for what I have done. I pray life will return to normal for them."

Bal went on to list a number of injustices he felt had occurred.

"Several stories in the newspaper (about my case) slowly poisoned the selection of my jury and took away any chance I had for a fair trial," he said.

"My family was publicly humiliated. Because I was a police officer, my name and my family’s name was dragged through the mud. I lost my job. The prosecution never asked me for my side of the story," Bal said.

"The court allowed two women who had cases pending against me to testify against me," he said.

"Jurors later said they used that (information) to convict me. I was convicted based on what was said about two cases that never went to trial," he said."

I never asked for special treatment because I was a police officer. I feel I was prosecuted because I was a police officer. I ask the court for mercy and leniency. I have four kids that need a father. I have a wife who needs a husband. God has forgiven me. The victim is lying. You are sentencing an innocent man," Bal said.

Bal will be remanded to the custody to the Michigan Department of Corrections. He will be transported to the Southern Michigan Correctional Facility in Jackson where he will be a part of the general prison population.

Bal’s attorney, Sanford Schulman, said an appeal will be filed.

"(Bal) was convicted on the testimony of two women whose charges against (Bal) were never brought to trial. The jury was hit with three cases at once. The evidence in the (case of the victim) was weak," said Schulman.

A Wisconsin woman who says she was involved in an encounter with Bal in the mid-1990’s attended Wednesday’s sentencing. She approached The Daily News outside the courthouse to offer her thoughts on Bal.

"It’s been 12 years, but justice was finally served," she said. "Bal was lying in court today. I saw firsthand what he is capable of," the woman said. The unnamed woman says she hopes to see the other man that was involved in her encounter with Bal brought to justice. "Eventually, it all catches up with them," she said.

Bal could still face a criminal sexual conduct charge involving an Iron Mountain woman in May 2005 at the C&R Bar in Aurora, Wis.

Florence County District Attorney Douglas Drexler has indicated he will decide shortly how he will proceed.

Bal is facing one count of criminal sexual conduct—second degree, a charge that carries a maximum sentence of 40 years in prison.




Monday, August 25, 2008

08252008 - Officer Ken DeKleine - Sentenced - Murder Of Ex-Wife Lori Dekleine - Holland PD









ORIGINAL CHARGE: OPEN MURDER
MDOC NUMBER: 696620
CURRENT STATUS: PRISONER
LOCATION: SAGINAW CORRECTIONAL FACILITY
SECURITY LEVEL: IV
EARLIEST RELEASE DATE: LIFE
MAXIMUM DISCHARGE DATE: LIFE
OFFENSE: HOMICIDE- MURDER FIRST DEGREE- PREMEDITATED
MCL #: 750.316A
COURT FILE # : 08032191-FC
COUNTY: OTTAWA
CONVICTION TYPE: JURY
MINIMUM SENTENCE: LIFE
MAXIMUM SENTENCE: LIFE
DATE OF OFFENSE: 01/10/2008
DATE OF SENTENCE: 08/25/08