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139969 - People v Lown (Donald)

The People of the State of Michigan,
 
John T. Horiszny
 
Plaintiff-Appellee,
 
v
(Appeal from Ct of Appeals)
 
 
(Saginaw – Heathscott, L.)
 
Donald Allen Lown,
 
Jacqueline J. McCann
 
Defendant-Appellant.
 

Summary

​Donald Allen Lown was charged with second-degree home invasion in September 2005. He was on parole at the time and was sent back to prison to serve his active sentences. His arraignment on the home-invasion charge occurred on November 7, 2005. Trial was set for February 7, 2006. Before that date, Lown’s defense counsel filed a motion to withdraw from representation. The trial judge denied the request, but the attorney renewed the motion in writing the following month, on the day before the scheduled trial, citing a breakdown in the attorney-client relationship. The court did not grant the motion to withdraw, but the February 7, 2006 trial was adjourned because the judge was presiding over another trial. A new trial date was set for May 9, 2006.

 

On April 20, 2006, Lown’s attorney filed a motion asking that Lown be released on a personal recognizance bond or, alternatively, that the case be dismissed under the 180-day rule, MCL 780.131 and MCL 780.133. MCL 780.131 provides, in relevant part, that an incarcerated inmate “shall be brought to trial within 180 days after the department of corrections causes to be delivered to the prosecuting attorney of the county in which the warrant, indictment, information, or complaint is pending written notice of the place of imprisonment of the inmate and a request for final disposition of the warrant, indictment, information, or complaint.” MCL 780.133 states that, if the time limit in MCL 780.131 is not met, “no court of this state shall any longer have jurisdiction thereof, nor shall the untried warrant, indictment, information or complaint be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.” At a May 1, 2006 hearing, the trial judge granted the bond and took the matter of dismissal under advisement. Lown was released from prison for a short period, but was returned on May 9, 2006, which prompted another adjournment. A third trial date was set for July 5, 2006.
 
On June 8, 2006, the trial court adjourned the trial until September 19, 2006, based on a stipulated motion of both parties. On June 16, the trial court denied the motion to dismiss. Defense counsel brought his third motion to withdraw on July 17, 2006, noting that Lown had filed a grievance against him. On that same date, the Department of Corrections sent written notification of Lown’s incarceration to the prosecutor pursuant to MCL 780.131. The notification was received on July 22, 2006.
 
On July 24, 2006 the trial court granted defense counsel’s motion to withdraw. Substitute counsel was appointed on July 28. On the next scheduled trial date of September 19, 2006, defense counsel asked for an adjournment. The trial was adjourned to November 28, 2006, but when that date arrived, the trial court was trying another case, so the trial was adjourned again until April 24, 2007. On that date, the trial court denied Lown’s request for a new attorney and stated that jury selection would begin the following afternoon. However, shortly thereafter, the trial court adjourned the trial to July 11, 2007. On that date, a visiting judge granted defense counsel’s motion to adjourn. Trial was adjourned to September 6, 2007. Defense counsel then filed a motion to withdraw on August 27, citing Lown’s “antagonistic, demeaning, denigrating attitude” towards him, plus the fact that Lown had filed a grievance against him. The motion to withdraw was granted on September 6, 2007, and the case was once again adjourned.
 
The defendant’s third trial counsel was appointed on September 12, 2007. The case was set to go to trial on December 4, 2007, but defense counsel moved for an adjournment on that date. He also orally renewed the motion for dismissal of the charge against Lown on the basis of the 180-day rule.
 
The judge denied the motion on April 15, 2008. She ruled that “the good faith exception” applied to 180-day rule cases, and that the prosecutor was “at all times, ready, willing and able to proceed with the trial of this case. All adjournments were made at the Defendant’s request or otherwise beyond the Prosecution’s control.” In an unpublished per curiam opinion, the Court of Appeals affirmed, agreeing that the 180-day rule was not violated. Citing People v Crawford, 232 Mich App 608 (1998), the appellate panel explained that “the calculation of the 180-day rule period must include delays attributable to the prosecution or the court, but must exclude any delays that are attributable to the defendant.” The Court of Appeals acknowledged that “more than 180 days of the total delay were caused by docket congestion or otherwise unexplained factors,” but emphasized that “the prosecution was ready and willing to go to trial at least as early as September 19, 2006. This was well within the initial 180-day period, and it appears from the record that the prosecution had made a good-faith effort to proceed to trial at that time.” For this reason, the Court of Appeals held, the 180-day rule was not violated, the trial court never lost jurisdiction over the case, and it did not abuse its discretion by denying Lown’s motion to dismiss. Lown appeals.