If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
May 27, 2021
Plaintiff-Appellee,
v No. 352414
Genesee Circuit Court
MARK ANDREW SEKELSKY, LC No. 18-043474-FC
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 352415
Genesee Circuit Court
MIKADYN MAULAY PAYNE, LC No. 18-043472-FC
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v No. 352416
Genesee Circuit Court
TREVOR ANTHONY GRAY, LC No. 18-043465-FC
Defendant-Appellee.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
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v No. 352417
Genesee Circuit Court
TREVOR ANTHONY GRAY, LC No. 18-043465-FC
Defendant-Appellant.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v No. 352475
Genesee Circuit Court
ALEXZANDER MILLER, LC No. 18-043471-FC
Defendant-Appellee.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v No. 352476
Genesee Circuit Court
MIKADYN MAULAY PAYNE, LC No. 18-043472-FC
Defendant-Appellee.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellant,
v No. 352477
Genesee Circuit Court
MARK ANDREW SEKELSKY, LC No. 18-043474-FC
Defendant-Appellee.
Before: STEPHENS, P.J., and SAWYER and BECKERING, JJ.
BECKERING, J. (concurring).
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I concur with the majority opinion to reverse and remand. Where the prosecutor’s
charging discretion ends and the trial court’s sentencing discretion begins in this case conjures up
images of anamorphosis art—it seems heavily dependent upon one’s vantage point. But for the
reasons set forth here and in the majority opinion, I agree that the trial court abused its discretion
by denying the prosecutor’s request to nolle prosequi. The prosecutor’s request was not motivated
by anything unconstitutional, illegal, or ultra vires. And his decision to charge defendants in
juvenile court after the circuit court allowed them to withdraw their Cobbs[1] pleas did not violate
the separation of powers doctrine.
Each of the parties in this case argues that the trial court abused its discretion by denying
the prosecutor’s request for a nolle prosequi and that the court violated the separation of powers
doctrine in denying that request because charging decisions are within the exclusive authority of
the prosecutor. The parties have cited no caselaw where a prosecutor sought to nolle prosequi a
case that the prosecutor had waived to criminal court under MCL 764.1f2 after a juvenile defendant
withdrew a Cobbs plea so that the prosecutor could refile charges in the juvenile court. And I have
found no case on point. Thus, this Court must examine the purpose of the nolle prosequi statute
as well as the scope of power held by the relevant branches of government.
Const 1963, art 3, § 2, states:
The powers of government are divided into three branches: legislative,
executive and judicial. No person exercising powers of one branch shall exercise
powers properly belonging to another branch, except as expressly provided in this
constitution.
“The conduct of a prosecution on behalf of the [p]eople by the prosecutor is an executive
act.” Genesee Co Prosecutor v Genesee Co Circuit Judge, 386 Mich 672; 683; 194 NW2d 693
(1972) (Genesee Prosecutor I) (citation omitted). As an elected official, the prosecuting attorney
is responsible for his or her actions to the citizens of his or her county. Const 1963, art 7, § 4. As
chief law enforcement officer of a county, the prosecutor has exclusive authority to decide whether
to prosecute a person and what charges to file. People v Williams, 244 Mich App 249, 251-252;
625 NW2d 132 (2001). “The prosecution is not for the benefit of the injured party, but for the
public good.” Id. at 253. Thus, “the decision whether to dismiss a case or proceed to trial is
within the prosecutor’s sole discretion.” People v Morrow, 214 Mich App 158, 165; 542 NW2d
324 (1995).
1
People v Cobbs, 443 Mich 276; 505 NW2d 208 (1993).
2
MCL 764.1f(1) states that “[i]f the prosecuting attorney has reason to believe that a juvenile . . .
has committed a specified juvenile violation, the prosecuting attorney may authorize the filing of
a complaint and warrant on the charge with a magistrate concerning the juvenile.”
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Entering a nolle prosequi3 ordinarily falls within the prosecutor’s broad and independent
discretion. However, once an information is filed and a prosecution is underway, MCL 767.29
constrains the prosecutor’s power to nolle prosequi. In pertinent part, MCL 767.29 provides that
“[a] prosecuting attorney shall not enter a nolle prosequi . . . without stating on the record the
reasons for the discontinuance or abandonment and without the leave of the court . . . .” This
statutory mandate requiring leave of the court replaced the common law principle that dismissal
was a prosecutor’s prerogative, regardless of the judge’s view. People v Curtis, 389 Mich 698,
706; 209 NW2d 243 (1973). The statute provides that the prosecutor must state on the record the
reasons for seeking a nolle prosequi order and must also obtain leave of the court. People v Glass
(After Remand), 464 Mich 266, 278; 627 NW2d 261 (2001). Notably, however, the statute is
intended to the protect the interests of the criminal defendant by preventing repeated dismissals
and subsequent reinstitution of the charges against him resulting in “endless vexations” in the
prosecution of criminal cases. Curtis, 389 Mich at 705-706. See also Rinaldi v United States, 434
US 22, 29 n 15; 98 S Ct 81; 54 L Ed 2d 207 (1977) (the purpose of the “leave of court” provision
is to protect a defendant against repeated charges from the prosecution, or where the public interest
clearly weighs against the dismissal). A court considering a nolle prosequi motion must consider
whether the prosecution’s reasons for the decision are in concert with the law, the facts, and reason
of the case. Genesee Co Prosecutor v Genesee Co Circuit Court Judge, 391 Mich 115, 121; 215
NW2d 145 (1974) (Genesee Prosecutor II). And a trial court may not substitute its judgment for
that of the prosecuting attorney as if it were acting in a supervisory capacity. Id.
In the present case, the prosecutor’s motion was prompted by an agreement between the
prosecution and the defense that the best course for these defendants is juvenile incarceration,
rather than adult incarceration. The prosecutor’s interest was not in a particular sentence but,
rather, in seeking rehabilitation services available only in the juvenile system. Each defense
counsel agreed with that goal. There is no hint in the record of improper motive on the part of the
prosecuting attorney. Nor is there anything that would permit the conclusion that defendants’
interests would be in jeopardy if the nolle prosequi request were allowed. Moreover, there has
been no suggestion that the public interest clearly weighs against the dismissal, Curtis, 389 Mich
at 706, where the public interest arguably is served by defendants remaining under juvenile
supervision until they are 21.4 After defendants withdrew their pleas, the parties essentially
returned to a pretrial posture. The prosecution chose to exercise its charging discretion by
changing the nature of the prosecution from an adult criminal case to a juvenile proceeding. This
case is in contrast to cases in which the prosecution exceeded its authority, such as where the
prosecution unilaterally attempted to derail trial after the trial court denied a motion to adjourn,5
3
“In Michigan, normally nolle prosequi is a dismissal without prejudice which does not preclude
initiation of a subsequent prosecution.” People v McCartney, 72 Mich App 580, 585; 250 NW2d
135 (1976).
4
Of course, defendants are still subject to the judicial imposition of their sentences in juvenile
court.
5
See People v Borowka, unpublished per curiam opinion of the Court of Appeals, issued
September 17, 2019 (Docket No. 346398). Although unpublished opinions are not binding on this
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or where the prosecution reneged on a binding agreement to dismiss charges against a defendant
if the defendant passed a polygraph examination.6
It appears that the trial court determined that the prosecutor’s request to nolle prosequi was
based on an ultra vires and unconstitutional exercise of authority. That is, the court found that the
prosecution exceeded its authority because granting a nolle prosequi in order to refile charges in
juvenile court after the circuit court allowed defendants to withdraw their Cobbs pleas was an
“attempt to evade the Court’s ruling rejecting juvenile sentencing to seek it in another forum.” The
trial court also seemingly viewed the prosecutor’s request as a violation of the separation of
powers; namely, it viewed the request as an attempt to usurp the trial court’s sentencing discretion
and to seek a more desirable resolution in the forum provided by the juvenile court. However, the
request for nolle prosequi does not appear to be ultra vires or unconstitutional because it falls
squarely within the prosecutor’s constitutional role. See Const 1963, art 7, § 4. As earlier noted,
the decision whether to dismiss a case or proceed to trial rests in the sole discretion of the
prosecutor, see Williams, 244 Mich App at 252, as does a charging decision. Moreover, “[t]he
exercise of the prosecutor’s charging discretion routinely affects the sentence that the court may
impose upon conviction.” People v Conat, 238 Mich App 134, 149; 605 NW2d 49 (1999). Indeed,
in Conat, 238 Mich App at 147-153, this Court held that MCL 764.1f, giving prosecutors discretion
to charge juveniles as adults for certain enumerated crimes, and to seek imposition of adult
sentences with respect thereto, does not violate the constitutional separation of powers and is a
permissible legislative limitation on the sentencing discretion of courts. While the timing of the
request to nolle prosequi appears suspect in this case, that does not mean that the prosecutor
committed an unconstitutional, illegal, or ultra vires act.
As the amicus, Michigan Judges Association,7 notes in its brief, it appears that the
prosecution was using its authority to determine the scope of defendants’ sentencing exposure—
that is, that defendants would receive the benefits of juvenile incarceration and rehabilitation and
not be exposed to adult prison.8 The prosecution sought to nolle prosequi to exercise its charging
discretion after defendants withdrew their Cobbs pleas in circuit court when the court declined to
sentence defendants as juveniles in accordance with those pleas. In other words, the decision to
request nolle prosequi was a consequence of defendants’ withdrawal of their pleas.9 At that point,
the prosecution exercised its charging discretion under MCL 764.1f and chose to refile the charges
in juvenile court—admittedly so that the parties’ negotiated goal of confinement combined with
Court, MCR 7.215(C)(1), they may be considered instructive or persuasive. Paris Meadows, LLC
v Kentwood, 287 Mich App 136, 139 n 3; 783 NW2d 133 (2010).
6
See People v Reagan, 395 Mich 306; 235 NW2d 581 (1975).
7
The amicus brief was filed in defendant Gray’s appeal in Docket No. 352416.
8
This case does not raise a challenge to the propriety of the parties’ initial sentencing agreement.
9
The prosecution seems to agree that if defendants had not withdrawn their pleas and were poised
to be sentenced, “it would be too late to change their charging decision.”
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juvenile rehabilitative treatment could be achieved.10 The prosecutor’s charging decision after the
pleas were withdrawn will affect the sentencing options, but as already explained, it will do so
without offending the constitutional doctrine of separation of powers.
Under the presenting circumstances, the prosecutor’s act does not appear to be
unconstitutional, illegal, or ultra vires, nor does it appear to violate the separation of powers. Thus,
I agree with the majority that the trial court abused its discretion by denying the prosecution’s
request to nolle prosequi.
/s/ Jane M. Beckering
10
Further supporting that the trial court recognized that the matter involved a charging decision
are the suggestions from the trial court that the prosecution could reduce the charges to acquire a
different set of sentencing guidelines that would not call for a prison sentence, or could bring other
adult charges, such as an attempt to commit malicious destruction of property.
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