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, FOR PUBLICATION
March 3, 2022
Plaintiff-Appellant, 9:15 a.m.
v No. 355299
Muskegon Circuit Court
JUSTIN SCOTT WITKOSKI, LC No. 20-000702-FH
Defendant-Appellee.
Before: RIORDAN, P.J., and K. F. KELLY and SWARTZLE, JJ.
SWARTZLE, J.
When a prosecutor brings a criminal charge against an inmate of a state penal institution,
state law requires that, once the prosecutor has received written notice from the Department of
Corrections, the prosecutor must proceed promptly and take good-faith action within 180 days to
bring the case to the point of readiness for trial. The circuit court dismissed the criminal charges
in this case based on this “180-day rule.” The circuit court abused its discretion in doing so,
however, because a significant amount of the delay in bringing defendant’s case to trial was not
the fault of the prosecutor, but rather resulted from our Supreme Court’s decision to suspend jury
trials during the early days of the Covid pandemic. Accordingly, we reverse the circuit court’s
dismissal of charges against defendant.
I. BACKGROUND
The prosecutor charged defendant with one count of assault with intent to do great bodily
harm less than murder, MCL 750.84, and one count of possession of child sexually abusive
material, MCL 750.145c(4)(a). The allegations of the underlying incident are not relevant to this
appeal. The prosecutor received written notice from the Department of Corrections on October
22, 2019, that defendant was incarcerated at a state prison serving a sentence for an unrelated
conviction. The notice triggered MCL 780.131, also known as the 180-day rule. The 180-day
period expired on April 19, 2020.
On January 10, 2020, the prosecutor notified the district court that the 180-day rule applied
to this case. Defendant was arraigned on January 27, and a probable-cause conference was held
on February 5. The matter was bound over to the circuit court on February 12, and the felony
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complaint was filed the same day. Defendant then sent discovery requests to the prosecutor. A
pretrial conference was scheduled for March 3, but it had to be rescheduled to March 16 because
the prosecutor did not file a writ for defendant’s appearance from prison.
On March 15, the day before the pretrial hearing was scheduled to take place, the Michigan
Supreme Court issued Administrative Order No. 2020-1. Administrative Order No. 2020-1, ___
Mich ___ (2020). Administrative Order 2020-1 imposed emergency measures on the Judiciary
as a result of the Covid-19 pandemic. Administrative Order 2020-2 was entered three days later
on March 18. Administrative Order No. 2020-2, ___ Mich ___ (2020). Administrative Order
2020-2 instructed trial courts to adjourn all criminal matters, including jury trials, until after
April 3, with a few exceptions not relevant here. Administrative Order 2020-1 and 2020-2 were
later extended to April 14, see Administrative Order 2020-5, ___ Mich ___ (2020), then April 30,
see Administrative Order 2020-7, ___ Mich ___ (2020), and finally for an indefinite period,
Administrative Order 2020-12, ___ Mich ___ (2020). On April 23, all jury trials were delayed
until the later of June 22 or further notice. Administrative Order 2020-10, ___ Mich ___ (2020).
April 19—the final day of the 180-day period—came and went without any further action
in this case. Ten days later, the prosecutor responded to defendant’s discovery request. A pretrial
hearing was held on July 29, and the jury trial was scheduled for October 19, 2020—the first day
the prosecutor believed that the circuit court would be able to hold a jury trial under our Supreme
Court’s administrative orders. On September 1, defendant moved to dismiss this case on the basis
that the prosecutor had violated the 180-day rule. Following a hearing, the circuit court concluded
that the prosecutor had not proceeded in good faith to set this matter for trial and dismissed this
case.
This appeal followed. On appeal, the prosecutor asserted for the first time that the office
took immediate action to alert the district court that defendant was an inmate with the Department
of Corrections. In support, the prosecutor pointed to the district court’s register of actions, which
does have the following minute entry for October 22, 2019: “VIDEO ARRAIGNMENT FORM
RECEIVED FROM PROSECUTOR’S OFFICE.” There is nothing else in the record, however,
to indicate what the district court purportedly received from the prosecutor that day—the only
letter in the record from the prosecutor to the district court referencing the 180-day rule is the one
dated January 10, 2020. Moreover, defendant argued before the circuit court that the prosecutor
had not alerted the district court about the 180-day rule until January 10, 2020, and the prosecutor
did not challenge this factual assertion, either during the hearing or in the prosecutor’s
supplemental brief filed after the hearing. As part of its ruling in favor of defendant, the circuit
court made the factual finding that the district court had not been alerted about the 180-day rule
until January 10, 2020. In all other respects, the parties have argued on appeal consistent with
their arguments before the circuit court.
II. ANALYSIS
We review for an abuse of discretion a circuit court’s decision on a motion to dismiss.
People v Herndon, 246 Mich App 371, 389; 633 NW2d 376 (2001). We review de novo questions
of law, including statutory interpretation. People v Lown, 488 Mich 242, 254; 794 NW2d 9 (2011).
The circuit court’s attributions of delay are reviewed for clear error. People v Crawford, 232 Mich
App 608, 612; 591 NW2d 669 (1998).
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The requirements of the 180-day rule are set forth in MCL 780.131(1), which provides in
relevant part:
Whenever the department of corrections receives notice that there is
pending in this state any untried warrant, indictment, information, or complaint
setting forth against any inmate of a correctional facility of this state a criminal
offense for which a prison sentence might be imposed upon conviction, the 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. The request shall be accompanied by a
statement setting forth the term of commitment under which the prisoner is being
held, the time already served, the time remaining to be served on the sentence, the
amount of good time or disciplinary credits earned, the time of parole eligibility of
the prisoner, and any decisions of the parole board relating to the prisoner.
When a prosecutor violates the 180-day rule, the following consequences apply:
In the event that, within the time limitation set forth in section 1 of this act,
action is not commenced on the matter for which request for disposition was made,
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. [MCL 780.133.]
The 180-day rule is distinct from a criminal defendant’s constitutional right to a speedy trial under
our federal and state Constitutions, US Const, Am VI; Const 1963, art 1, § 20, and this latter right
is not currently before us on appeal.
With respect to the 180-day rule, our Supreme Court has concluded that the Legislature did
not intend to require that a trial necessarily take place within 180 days. People v Hendershot, 357
Mich 300, 303; 98 NW2d 568 (1959). As explained by the Hendershot Court, “The statute does
not require the action to be commenced so early within the 180-day period as to insure trial or
completion of trial within that period.” Id. at 304. Rather, if “apparent good-faith action is taken
well within the period and the people proceed promptly and with dispatch thereafter toward
readying the case for trial, the condition of the statute for the court’s retention of jurisdiction is
met.” Id.
Our Supreme Court revisited the 180-day rule in Lown, 488 Mich 242, just over a decade
ago. The Lown Court explained, “The object of [the 180-day] rule is to dispose of new criminal
charges against inmates in Michigan correctional facilities; the rule requires dismissal of the case
if the prosecutor fails to commence action on charges pending against an inmate within 180 days
after the [Department] delivers notice of the inmate’s imprisonment.” Lown, 488 Mich at 246.
But “the rule does not require that a trial be commenced or completed within 180 days of the date
notice was delivered.” Id. Rather, “it is sufficient that the prosecutor proceed promptly and move
the case to the point of readiness for trial within the 180-day period.” Id. (cleaned up).
“Significantly, although a prosecutor must proceed promptly and take action in good faith in order
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to satisfy the rule, there is no good-faith exception to the rule. Instead . . . good faith is an implicit
component of proper action by the prosecutor, who may not satisfy the rule simply by taking
preliminary steps toward trial but then delaying inexcusably.” Id. at 246-247. Stated differently,
“the requirement that a prosecutor proceed in ‘good faith’ means simply that [the prosecutor] must
in fact commence action and cannot satisfy the rule by taking preliminary steps without an
ongoing, genuine intent to promptly proceed to trial, as might be evident from subsequent
inexcusable delays.” Id. at 273.
Additionally, “the statutory 180-day period is, by the plain terms of the statute, a fixed
period of consecutive days beginning on the date when the prosecutor receives the required notice
from the [Department].” Id. at 247. “Thus, the relevant question is not whether 180 days of delay
since that date may be attributable to the prosecutor, but whether action was commenced within
180 calendar days following the date the prosecutor received the notice. If so, the rule has been
satisfied unless the prosecutor’s initial steps are followed by inexcusable delay beyond the 180-
day period and an evident intent not to bring the case to trial promptly.” Id. (cleaned up). Given
this, “a court should not calculate the 180-day period by apportioning to each party any periods of
delay after the [Department] delivers notice.” Id.
On appeal, defendant places the blame for the delay squarely on the shoulders of the
prosecutor. It certainly could be argued that the prosecutor did not follow “best practices” in
bringing the matter to a rapid resolution. The Department notified the prosecutor in October 2019
that the 180-day rule applied. The circuit court found that the prosecutor did not take any action
for nearly three months—about half of the 180 days. While the prosecutor challenges this factual
finding on appeal, there is insufficient evidence in the record to show that the circuit court clearly
erred, and so we accept the circuit court’s factual finding on this point. Then, the pretrial hearing
had to be adjourned several days because the prosecutor did not file a writ for defendant’s
appearance from prison. It was not until several days after the 180-day period had expired that the
prosecutor responded to defendant’s discovery request.
But, a prosecutor does not necessarily violate the 180-day rule solely because more
diligence could have been employed. Instead, the 180-day rule requires that the prosecutor act in
good faith and “proceed promptly and move the case to the point of readiness for trial within the
180-day period.” Id. at 246 (cleaned up).
Nothing in the record suggests that the prosecutor initially delayed proceedings until
January 2020 in a bad-faith attempt to delay trial. As for the March 3 pretrial hearing, although
the prosecutor should have filed a writ for defendant’s appearance, that miscue resulted in only a
brief delay. As for the discovery response, while the prosecutor similarly should have responded
sooner, the resulting delay had little-to-no practical impact on the proceedings because our
Supreme Court had imposed emergency measures in the meantime. Moreover, we note that trial
was eventually scheduled to begin on October 19, 2020, the first day a jury trial was again
permitted in that circuit court under our Supreme Court’s administrative orders.
Significantly, much of the delay in defendant’s scheduled jury trial resulted from our
Supreme Court’s decision to suspend jury trials in response to the Covid-19 pandemic. This delay
is somewhat analogous to the one encountered in People v Schinzel, 97 Mich App 508, 512; 296
NW2d 85 (1980), where the delay was caused by a wholesale change in docketing systems
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approved by our Supreme Court. The Schinzel Court concluded that the delay was excusable under
the 180-day rule. Id. at 513. Although we are not bound by the decision in Schinzel because it
was issued prior to November 1, 1990, MCR 7.215(J)(1), we find its analysis on this question
persuasive.
As a counter-example, this case does not present a situation in which trial courts remained
open for jury trials, but subject to heightened Covid-19 safety measures. See, e.g., Administrative
Order of the Western District of Michigan 20-MS-024; Administrative Order of the Western
District of Michigan 20-MS-029; Administrative Order of the Western District of Michigan 20-
MS-037. In such a circumstance, the prosecutor would have been expected to bring the case to
trial promptly because a jury trial would have been permitted. But this was not an option here.
Defendant counters that the prosecutor could have done more in the ensuing weeks after
the emergency measures were put in place, but instead, the prosecutor delayed until July 2020 to
hold a pretrial hearing. This might be the case, but again, the standard is not whether the prosecutor
could have moved faster. Rather, the prosecutor must take good-faith actions within the 180-day
period and move promptly and with dispatch toward readying the case for trial.
Our review of the record confirms that the prosecutor took necessary steps to get this case
ready for trial within a practicable time-frame given the circumstances. While the case was not
fully ready for trial when the 180-day period expired, our case law does not require that the trial
actually take place within that time period and, in any event, criminal proceedings and jury trials
in our state courts were suspended weeks before the time period had expired. The prosecutor’s
actions were sufficient to have trial ready for the first possible day the circuit court was permitted
to resume jury trials. In fact, given the timing of our Supreme Court’s orders, defendant’s trial
would have very likely begun on October 19 in any event, even if more diligence had been shown
at the outset. The prosecutor did not cause an inexcusable delay in readying defendant’s case for
trial, and the circuit court abused its discretion in concluding that the prosecutor violated the 180-
day rule.
III. CONCLUSION
For the reasons stated in this opinion, we reverse the circuit court’s order dismissing the
charges against defendant. We remand for proceedings consistent with this opinion. We do not
retain jurisdiction.
/s/ Brock A. Swartzle
/s/ Michael J. Riordan
/s/ Kirsten Frank Kelly
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