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143469 - People v Kiyoshk

People of the State of Michigan,   
Heather S. Bergmann
(Appeal from Ct of Appeals)
(Kalamazoo  – Lipsey, A.)
Christopher Blayne Kiyoshk,
Arthur H. Landau


Christopher Kiyoshk was born on December 24, 1985. In 2006, the Kalamazoo County prosecutor charged Kiyoshk with four counts of first-degree criminal sexual conduct. Kiyoshk agreed to plead guilty to count II, which alleged that Kiyoshk engaged in sexual intercourse with a victim under 13 years old in 1999. The other counts were dismissed. The trial court accepted Kiyoshk’s plea and sentenced him to five to 25 years in prison.


In August 2009, Kiyoshk moved for relief from judgment under MCR 6.508(D), arguing that the trial court lacked jurisdiction to accept his guilty plea because he was only 13 years old when he committed the crime. The trial judge denied the motion, ruling that Kiyoshk waived the jurisdictional challenge by entering his unconditional guilty plea. The court did have jurisdiction, the trial judge added, because, although Kiyoshk was a minor at the time of the crime, he was an adult when he was arrested and entered his guilty plea.


But, in an unpublished per curiam opinion, the Court of Appeals reversed the trial court and vacated Kiyoshk’s plea. The appellate panel noted that MCL 712A.2(a) and MCL 764.1f(1) authorize a trial court to exercise jurisdiction over a defendant who is at least 14 years old and charged with certain felonies, including first-degree criminal sexual conduct. The defendant’s age at the time of the commission of the offense controls, held the Court of Appeals, citing People v Schneider, 119 Mich App 480 (1982). Count II, the count to which Kiyoshk pled guilty, was listed as occurring in 1999. Although there was information to suggest that an incident involving Kiyoshk and the victim occurred on New Year’s Eve, when Kiyoshk would have been 14 years old, the panel concluded that the only express reference to sexual intercourse between Kiyoshk and the victim occurred in July 1999; moreover, Kiyoshk did not admit that he was 14 years old at the time of the offense when he entered his plea, the panel noted. For these reasons, the Court of Appeals held, Kiyoshk appears to have been 13 years old at the time of the incident to which he pled guilty, so the trial court lacked jurisdiction. The panel noted, however, that two of the dismissed counts occurred in 2000, when Kiyoshk was 14 years old; the trial court had jurisdiction over those counts, held the panel, and they could be reinstated on remand. If the prosecutor intended to reinstate count I, which was also alleged to have occurred “in 1999,” the trial court would need to make a factual determination as to Kiyoshk’s age at the time of the charged offense, the Court of Appeals said.


The prosecutor appeals.