In Re Kjl

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

In re KJL.

ARM, UNPUBLISHED
July 27, 2023
Petitioner-Appellee,

v Nos. 361898; 362062
St. Clair Circuit Court
KJL, LC No. 20-001291-PP

Respondent-Appellant.

Before: GADOLA, P.J., and MURRAY and MALDONADO, JJ.

PER CURIAM.

In these consolidated appeals,1 respondent appeals as of right two sentencing orders arising
from respondent’s criminal-contempt convictions for violating a domestic personal protection
order (PPO), MCL 600.2950(23). In Docket No. 361898, respondent appeals the trial court’s
January 4, 2022 order sentencing him to 93 days in jail. In Docket No. 362062, respondent appeals
the trial court’s October 15, 2021 order likewise sentencing him to 93 days in jail. We remand for
correction of both orders to omit the provisions precluding statutory good-time credit, but affirm
in all other respects.

I. BACKGROUND

The parties have an acrimonious history surrounding custody of their daughter, which has
led to substantial litigation concerning PPOs petitioner obtained and respondent’s violations of
those PPOs. See ARM v KJL, ___ Mich App ___ ; ___ NW2d ___ (2022) (Docket Nos. 357120,
358858, and 358859). Petitioner obtained a third PPO against respondent KJL in August 2020.

1
In re KJL, unpublished order of the Court of Appeals, entered July 12, 2022 (Docket Nos. 361898
and 362062).

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 The sentence at issue in Docket No. 361898 stems from a show-cause order entered on
August 31, 2020. Petitioner’s underlying motion alleged, in pertinent part, that respondent posted
a copy of the PPO the court had issued earlier that month, which contained petitioner’s phone
number, on Facebook. In the caption for the post respondent wrote, “Should have left the cell
numbers off of the petition, dummies.” Petitioner thereafter received threatening and harassing
phone calls and text messages from strangers.2 The trial court then ordered respondent to appear
for a show-cause hearing. After respondent failed to appear, the trial court entered a bench warrant
requiring that respondent be brought before the court or released on a $5,000 cash or surety bond.
Respondent posted bond shortly thereafter and appeared in court on November 5, 2020. An
evidentiary hearing was scheduled for January 22, 2021.

In the meantime, petitioner filed a second show-cause motion on January 7, 2021, this time
alleging that respondent continued to send her text messages and make inappropriate posts on
Facebook. Petitioner attached several text messages and Facebook posts to her motion. The
sentence relating to this motion is at issue in Docket No. 362062. The trial court issued a bench
warrant requiring respondent’s arrest and appearance to answer the contempt charge, with no
option for bond. Respondent failed to appear for the January 22, 2021 hearing. Consequently, the
trial court ordered that respondent’s release be revoked and bond be forfeited. It also entered
another bench warrant without an option for bond.

Respondent was taken into custody on March 3, 2021, on the basis of the two bench
warrants, a third bench warrant issued in this case, and two additional bench warrants issued in a
different case. One warrant concerned respondent’s failure to submit himself to the jail to serve a
60-day sentence imposed in another case, and respondent was ordered to begin serving that
sentence the following day with credit for one day already served in jail. Respondent was
arraigned on the remaining warrants on March 10, 2021, and bond was set at $10,000 cash or
surety on each matter.

On June 4, 2021, the trial court held an evidentiary hearing regarding the show-cause order
entered on August 31, 2020, which alleged respondent violated the PPO when he posted it to
Facebook and then subsequently posted screen shots of respondent’s text messages to petitioner
that included petitioner’s phone number. The trial court found respondent guilty of violating the
terms of the PPO in an opinion and order dated December 14, 2021. On January 4, 2022,
respondent was sentenced to 93 days in jail to run concurrent with the balance of an October 15,
2021, sentence he was then serving, without the ability to earn good-time credit and without credit
for time served.

2
Respondent operates a Facebook group entitled “Through My Eyes,” to share details of his
custody dispute and related dealings with the court. The group was mentioned in this Court’s
previous opinion by its former name, “Justice for O.” ARM, ___ Mich App at ___; slip op at 1.
According to respondent, he also uses the Facebook page/group to advocate for the rights of other
fathers, protection of children, and to seek accountability from government officials. Through My
Eyes purportedly has more than 10,000 followers.

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 On June 25, 2021, the trial court held an evidentiary hearing regarding the show-cause
order entered on January 7, 2021, which alleged respondent violated the August 2020 PPO when
he texted respondent on three separate dates. The trial court found respondent guilty of violating
this PPO in an opinion and order dated September 29, 2021. On October 15, 2021, respondent
was sentenced to 93 days jail on this violation to run concurrent with the balance of the July 29,
2021 sentence he was then serving and without the ability to earn good-time credit and without
credit for time served.

II. FREEDOM OF SPEECH

Respondent first argues that his December 14, 2021 conviction and related sentence must
be vacated because the PPO is a public record and posting it to Facebook was protected free speech
that could not serve as the basis for a PPO violation. We disagree.

A person who fails to comply with a domestic PPO issued under MCL 600.2950 is subject
to the criminal-contempt powers of the court. MCL 600.2950(23). A trial court’s decision to hold
a party in contempt is reviewed for an abuse of discretion. In re JCB, 336 Mich App 736, 747;
971 NW2d 705 (2021). An abuse of discretion occurs when “the trial court’s decision is outside
the range of principled outcomes.” Porter v Porter, 285 Mich App 450, 455; 776 NW2d 377
(2009). Underlying constitutional questions are reviewed de novo as questions of law. TM v MZ
(On Remand), 326 Mich App 227, 236; 926 NW2d 900 (2018).

Among other restrictions, the 2020 PPO prohibited respondent from stalking petitioner, as
defined in MCL 750.411h, or posting messages through any medium of communication in
violation of MCL 750.411s. As MCL 750.411s is most directly implicated by respondent’s
conduct in this case, our analysis will focus on that statute.

MCL 750.411s(1) provides:

A person shall not post a message through the use of any medium of
communication, including the internet or a computer, computer program, computer
system, or computer network, or other electronic medium of communication,
without the victim’s consent, if all of the following apply:

(a) The person knows or has reason to know that posting the message could
cause 2 or more separate noncontinuous acts of unconsented contact with the
victim.

(b) Posting the message is intended to cause conduct that would make the
victim feel terrorized, frightened, intimidated, threatened, harassed, or molested.

(c) Conduct arising from posting the message would cause a reasonable
person to suffer emotional distress and to feel terrorized, frightened, intimidated,
threatened, harassed, or molested.

(d) Conduct arising from posting the message causes the victim to suffer
emotional distress and to feel terrorized, frightened, intimidated, threatened,
harassed, or molested.

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It is clear from the statutory language that MCL 750.411s focuses on “the conduct the actor
intended to cause by posting the message and the effect of that conduct.” Buchanan v Crisler, 323
Mich App 163, 179; 922 NW2d 886 (2018). As this Court explained in Buchanan, the elements
of the statute demonstrate that it was designed to bar “cyberstalking by proxy” or “cyberharassing
by proxy.” Id. By its express terms, however, MCL 750.411s “does not prohibit constitutionally
protected speech or activity.” MCL 750.411s(6).

Respondent posted petitioner’s PPO petition and the PPO itself on Facebook, along with
the caption, “Should have left the cell numbers off of the petition, dummies.” The next day,
respondent made a second Facebook post that shared text messages between the parties, and some
of the screen shots again included petitioner’s name and phone number. Respondent posted these
on his Through My Eyes Facebook group, which contained years of content disparaging petitioner
and that she believed had caused its followers to hate and harass her. Shortly after respondent’s
posts, petitioner began receiving hateful, threatening, and cryptic text messages from strangers.

The trial court found that respondent violated both MCL 750.411h and MCL 750.411s by
posting petitioner’s phone number on his Through My Eyes page, reasoning that respondent
obviously intended to have his followers contact her. The trial court further stated that it believed
respondent’s post was part of his continuing harassment of petitioner. The trial court was
unpersuaded by respondent’s constitutional defense because speech integral to the commission of
a crime is not protected by the First Amendment and, in the trial court’s view, that exception
applied because neither petitioner nor the parties’ daughter were public figures and the parties’
custody dispute was not a matter of public concern. Respondent maintains on appeal that his posts
involved constitutionally protected speech that could not serve as the basis for a contempt
conviction.

The right to freedom of speech is protected by both the federal and state constitutions. US
Const, Ams I and XIV; Const 1963, art 1, § 5. Freedom of speech protects “speech over the
Internet to the same extent as speech over other media.” Thomas M Cooley Law Sch v Doe 1, 300
Mich App 245, 256; 833 NW2d 331 (2013). But as this Court noted in respondent’s previous
appeals, “a person’s right to free speech must be understood in light of another person’s interest in
being left alone.” ARM, ___ Mich App at ___; slip op at 8. “The unwilling listener’s interest in
avoiding unwanted communication has been repeatedly identified in our cases.” Id. at ___; slip
op at 8, quoting Hill v Colorado, 530 US 703, 716; 120 S Ct 2480; 147 L Ed 2d 597 (2000). While
the freedom to communicate is substantial, the right of every person to be left alone must be
balanced with the right of others to communicate. Id. quoting Hill, 530 US at 718.

The right to speak freely is not without limitation. The First Amendment permits
restrictions upon the content of speech in a few limited areas. TM, 326 Mich App at 238. “Among
these categories are advocacy intended, and likely, to incite imminent lawless action; obscenity;
defamation; speech integral to criminal conduct; so-called ‘fighting words’; child pornography;
fraud; true threats; and speech presenting some grave and imminent threat the government has the
power to prevent . . . .” United States v Alvarez, 567 US 709, 717; 132 S Ct 2537; 183 L Ed 2d
574 (2012) (citations omitted).

Respondent relies principally on this Court’s opinion in TM, 326 Mich App 227, and
United States Supreme Court precedent cited in that opinion, namely, Org for a Better Austin v

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Keefe, 402 US 415; 91 S Ct 1575; 29 L Ed 2d 1 (1971) and NAACP v Claiborne Hardware Co,
458 US 886; 102 S Ct 3409; 73 L Ed 2d 1215 (1982). Respondent’s reliance on these authorities
is flawed, however, because none address the First Amendment exception at the heart of the trial
court’s decision—speech integral to criminal conduct. TM, 326 Mich App at 243, explicitly
limited its analysis to only four exceptions—defamation, fighting words, words inciting imminent
lawless action, and true threats. As for Keefe, 402 US at 418-420, it focused on the general rule
prohibiting prior restraints, and its analysis might have differed if there was a competing private
right at stake, as there is in this case.3 Claiborne Hardware, 458 US at 911-912, likewise omitted
any discussion of the exception for speech integral to criminal conduct, presumably because the
majority of the respondents in that case were employing lawful measures to bring about political,
social, and economic change, rather than unlawful activities like “riot or revolution.” Indeed, the
Court’s disposition in Claiborne Hardware required the state to modify its injunction “to restrain
only unlawful conduct and the persons responsible for conduct of that character.” Id. at 924 n 67.

More germane to the issue at hand is this Court’s discussion of MCL 750.411s and the
related constitutional implications in Buchanan, wherein the respondent challenged a PPO
prohibiting “posting a message through the use of any medium of communication, including the
Internet or a computer,” after the respondent spent years posting disparaging comments about the
petitioner online. Buchanan, 323 Mich App at 172-182. As in this case, the respondent maintained
that the First Amendment protected his online postings. Id. at 174. After exploring the elements
and intent of MCL 750.411s, id. at 177-180, the Buchanan Court observed:

Relevant to this case, several courts have also relied on the speech-integral-
to-criminal-conduct exception in rejecting First Amendment challenges to stalking
statutes, including cyberstalking statutes. …[4] “The government has a strong and
legitimate interest in preventing the harassment of individuals.” Thorne v Bailey,

3
The Supreme Court observed that an injunction against leaflet distribution operated “not to
redress alleged private wrongs, but to suppress, on the basis of previous publications, distribution
of literature ‘of any kind’ in a city of 18,000.” Keefe, 402 US at 418-419. It also found precedent
involving privacy rights distinguishable, noting that “respondent is not attempting to stop the flow
of information into his own household, but to the public.” Id. at 420.
4
Buchanan cited the following examples of cases applying the speech-integral-to-criminal-
conduct exception to stalking and cyberstalking statutes: See, e.g., United States v Sayer, 748 F3d
425, 433-434 (CA 1, 2014); United States v Petrovic, 701 F3d 849, 855 (CA 8, 2012); United
States v Osinger, 753 F3d 939, 947-948 (CA 9, 2014); United States v Matusiewicz, 84 F Supp 3d
363, 372-373 (D Del, 2015); Commonwealth v Johnson, 470 Mass 300, 310; 21 NE3d 937 (2014);
United States v Sergentakis, opinion of the United States District Court for the Southern District
of New York, issued June 15, 2015 (Case No. 15-cr-33 (NSR)), p 7. As additional authority,
Buchanan also cited People v White, 212 Mich App 298, 311; 536 NW2d 876 (1995), which
rejected a free-speech challenge to MCL 750.411h and MCL 750.411i because stalking involved
a course of conduct consisting of speech combined with conduct. Buchanan, 323 Mich App at
185.
.

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 846 F2d 241, 243 (CA 4, 1988). See also United States v Lampley, 573 F2d 783,
787 (CA 3, 1978) (“Congress had a compelling interest in the protection of innocent
individuals from fear, abuse or annoyance at the hands of persons who employ the
telephone, not to communicate, but for other unjustifiable motives.”). And when
the government enacts laws to prevent these types of harassment, any expressive
aspects of speech are not protected under the First Amendment when the speech, as
an integral part of criminal conduct, serves solely to implement the stalker’s
criminal purpose in intentionally harassing the victim.

Similarly, in our judgment, posting a message in violation of MCL 750.411s
would not constitute protected speech because the message is integral to the
harassment of the victim insofar as it leads to, and is intended to cause, unconsented
contacts that terrorize, frighten, intimidate, threaten, harass, or molest the victim.
Analogously to the picketers in Giboney [v Empire Storage & Ice Co, 336 US 490;
69 S Ct 684; 93 L Ed 834 (1949)], an individual posting a message in violation of
MCL 750.411s acts with the unlawful objective to induce a criminal course of
conduct by prompting others to engage in unconsented contacts with the victim that
amount to harassment. While there may generally be a right to express one’s views
online, no one has the right to intentionally lead others to engage in unconsented
contacts that amount to harassment. See State v Carpenter, 171 P3d 41, 58 (Alas,
2007) (finding that under the First Amendment, a radio personality could ridicule
local critics on-air but that he could not call on listeners to engage in harassment).
Generally speaking, because posting a message in violation of MCL 750.411s
constitutes speech integral to criminal conduct, the message is not protected.
[Buchanan, 323 Mich App at 185-186 (some citations omitted).]

This Court did not, however, end its analysis with the conclusion that online posts violating
MCL 750.411s amount to speech integral to criminal conduct. Rather, recognizing that courts
should be cautious in applying this exception too broadly, this Court considered the circumstances
in which speech integral to violating MCL 750.411s should nevertheless be afforded constitutional
protection. Id. at 186-187. This Court again looked to guidance from other jurisdictions and,
finding defamation jurisprudence analogous, held that the test is “whether the postings are intended
solely to cause conduct that will harass a private victim in connection with a private matter or
whether the publication of the information relates to a public figure and an important public
concern.” Id. at 188-189. “While the government has an interest in preventing the harassment of
private individuals in relation to private matters, MCL 750.411s may not be employed to prevent
speech relating to public figures on matters of public concern.” Id. at 191.

In urging this Court to vacate the contempt conviction arising from his Facebook posts,
respondent maintains that all his speech on his Through My Eyes group involves “classic issue
advocacy,” as he attempts to persuade the public to seek improvements in the law and court system
relative to child custody matters, protection from sex offenders, and similar issues. The trial court
disagreed, opining that respondent’s obvious intention was to harass respondent by proxy, and that
the posts at issue did not involve a public figure or public matter. We agree with the trial court on
these points.

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 Generally, a public figure is one “who, by reason of the notoriety of their achievements or
the vigor and success with which they seek the public’s attention, are properly classed as public
figures . . . .” Buchanan, 323 Mich App at 189, quoting Gertz v Robert Welch, Inc, 418 US 323,
342; 94 S Ct 2997; 41 L Ed 2d 789 (1974) (quotation marks omitted). A person may be designated
as a public figure for limited purposes by voluntarily inserting himself or herself into a particular
public controversy. Buchanan, 323 Mich App at 189. There is no indication that petitioner has
attempted to interject herself into the public realm with respect to the reform sought by respondent.
Rather, to the extent she garners any public attention, it is a result of respondent’s protracted efforts
to bring the parties’ legal battles into the lime light.

Moreover, the trial court correctly determined that the problematic aspect of respondent’s
posts—intentional publication of petitioner’s phone number to an audience that could be expected
to use the information to harass petitioner—did not involve a matter of public concern. There is
no bright-line test for determining what constitutes a matter of public concern, but speech will
generally fall in that category if it relates to “any matter of political, social, or other concern to the
community, or when it is a subject of legitimate news interest; that is, a subject of general interest
and of value and concern to the public.” Id. at 190, quoting Snyder v Phelps, 562 US 443, 453;
131 S Ct 1207; 179 L Ed 2d 172 (2011) (quotation marks omitted). Respondent’s stated purpose
of advancing legal reform undoubtedly meets this general standard, but it does not follow that the
same holds true for the specific posts at issue here. The form and context of the speech is also
relevant, Buchanan, 323 Mich App at 190, and the context is particularly telling in this case.

The parties have a long and bitter history surrounding custody of their daughter, which has
prompted petitioner to obtain three PPOs against respondent. Respondent posted the most recent
PPO, drawing particular attention to petitioner’s phone number, on a Facebook page followed by
people known to be hostile toward petitioner and supportive of respondent. The PPO plainly
barred respondent from contacting petitioner directly. The only logical reason to comment that
petitioner “[s]hould have left the cell numbers off of the petition” was to encourage his audience
to contact her in his stead. Several people did just that; petitioner received a number of hateful
and ominous text messages, one of which threatened violence against petitioner.

Respondent’s argument that this post was a matter of public concern is severely undercut
by the obvious fact that petitioner has no ability to change the law regarding child custody and
protection. To the extent respondent hoped the contacts resulting from his posts would sway
petitioner’s stance in the parties’ longstanding custody battle, we will not construe the particulars
of the parties’ dispute as a legitimate matter of public concern. Thus, the only purpose that could
be served by a post implicitly encouraging the public to contact petitioner is the improper one
identified by the trial court—i.e., the continued harassment of petitioner, in violation of MCL
750.411s and her right to be left alone. See ARM, ___ Mich App at ___; slip op at 8 (discussing
balancing of free speech against individual rights). Considering the totality of the circumstances,
respondent’s posts did not involve a matter of public concern, but rather, “a thinly veiled attempt
to immunize a private harassment campaign as a matter of public concern.” Buchanan, 323 Mich
App at 190-191.

Because the post was integral to respondent’s violation of MCL 750.411s and did not
involve speech relating to a public figure on a matter of public concern, the trial court did not abuse
its discretion by finding respondent guilty of criminal contempt. Noble as respondent’s general

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issue advocacy may be, the trial court was not precluded from enforcing its PPO merely because
the manner in which respondent purportedly violated its provisions involved speech. See
Buchanan, 323 Mich App at 185 (“[A]ny expressive aspects of speech are not protected under the
First Amendment when the speech, as an integral part of criminal conduct, serves solely to
implement the stalker’s criminal purpose in intentionally harassing the victim.”).

III. GOOD-TIME CREDIT

Respondent next argues that the trial court erred by ordering that he was not entitled to
good-time credit under MCL 51.282(2). We agree.

This Court reviews questions of statutory interpretation de novo. People v Wiley, 324 Mich
App 130, 150; 919 NW2d 802 (2018). The goal of statutory interpretation is to give effect to the
Legislature’s intent, as discerned from the words of the statute at issue. People v Smith, 336 Mich
App 297, 304; 970 NW2d 450 (2021). “If the statutory language is unambiguous, no further
judicial construction is required or permitted because we presume the Legislature intended the
meaning it plainly expressed.” Id. at 305 (quotation marks and citation omitted).

Respondent raised this same issue in his previous appeals. This Court previously found
the issue moot because each sentence then before the Court had already been completed, but still
opted to consider respondent’s argument on the merits because it had public significance and was
likely to recur, yet evade appellate review. ARM, ___ Mich App at ___; slip op at 8-9. In
concluding that the trial court erred by ordering that respondent was categorically barred from
earning good-time credit otherwise available under MCL 51.282, this Court explained:

[T]he foregoing language [of MCL 51.282] is not ambiguous. People v Cannon,
206 Mich App 653, 655; 522 NW2d 716 (1994). “In clear and unmistakable terms,
the Legislature has stated that every county prisoner shall be entitled to a reduction
of sentence of one day for every six days served where there are no violations of
the rules and regulations.” Id. at 656. While a sheriff has discretion to set a rule
on how much good-time credit is forfeited for an infraction of the jail’s “rules and
regulations,” MCL 51.282(2), there is nothing in the statute to suggest that the
sheriff has similar discretion to set a rule on whether a prisoner is eligible to earn
such credit in the first instance. Likewise, a sentencing court is not permitted to
circumvent or nullify the statutory scheme by “taking away good-time credits in
advance.” Cannon, 206 Mich App at 655. Stated differently, “a court may not
deprive a prisoner of good-time credit to which the prisoner may be entitled under
statute before that prisoner has even begun serving the term of imprisonment.” Id.
[Id. at ___; slip op at 9.]

Despite the unambiguous language of MCL 51.282(2) and this Court’s interpretation in the
previous appeal, the trial court’s sentencing orders both stated that respondent was not entitled to
good-time credit. Although ARM was decided after the last sentencing order at issue in these
consolidated appeals, its reasoning is equally applicable, and we are bound to conclude that the
trial court again erred by ordering that respondent was not entitled to earn good-time credit under
MCL 51.282(2).

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 IV. DE FACTO CONSECUTIVE SENTENCING

Next, respondent argues that the trial court engaged in unlawful de facto consecutive
sentencing by strategically delaying resolution of the various PPO violation allegations. We again
disagree.

This Court reviews questions of statutory interpretation, including authority to impose
consecutive sentences, de novo. Wiley, 324 Mich App at 150; People v Parker, 319 Mich App
410, 414; 901 NW2d 632 (2017). The interpretation and application of court rules is likewise
reviewed de novo. People v Lee, 489 Mich 289, 295; 803 NW2d 165 (2011).

“The courts will generally refrain from deciding issues that are moot, meaning it is
impossible for the court to craft an order with any practical effect on the issue.” Moore v Genesee
Co, 337 Mich App 723, 726-727; 976 NW2d 921 (2021). Respondent’s October 15, 2021 sentence
in Docket No. 362062 expired on January 16, 2022. Inasmuch as respondent has completed the
sentence at issue in Docket No. 362062, this Court can no longer grant relief relative to that
sentence. However, respondent apparently still has time remaining on his 93-day sentence
imposed on January 4, 2022, because he was released on a personal recognizance appellate bond
on February 24, 2022 in his last appeal in Docket No. 358858. Therefore, this claim of error is not
moot as it relates to Docket No. 361898.

“The term consecutive or cumulative sentences mean[s] those following in a train,
succeeding one another in a regular order, with an uninterrupted course or succession, and having
no interval or break. By contrast, the term concurrent sentences refers to sentences operating
simultaneously.” Threet v Dep’t of Corrections (On Reconsideration), 340 Mich App 520, 528;
986 NW2d 653 (2022) (quotation marks and citation omitted). Concurrent sentences are the
preferred standard in Michigan, People v Norfleet, 317 Mich App 649, 665; 897 NW2d 195 (2016),
and consecutive sentences are only permitted when specifically authorized by statute, Parker, 319
Mich App at 415. The statute governing sentences for criminal contempt on the basis of a domestic
PPO violation provides that a contemnor who is 17 years or older “must be imprisoned for not
more than 93 days and may be fined not more than $500.00.” MCL 600.2950(23). There is no
express statutory language permitting imposition of consecutive sentences for multiple PPO
violations. Notably, however, the trial court did not impose consecutive sentences; each of the
orders appealed in these consolidated cases provides that the sentence imposed by the order is to
run concurrent with the balance of the previous sentence respondent was already serving.

Respondent argues that, despite the concurrent language contained in the sentencing orders,
the trial court imposed de facto consecutive sentences by strategically timing the adjudication and
sentencing of his various PPO violations so that a new sentence would begin as the previous
sentence neared completion. We disagree.

Respondent was arraigned on the bench warrants relevant to these appeals on March 10,
2021. Concerning the August 2020 show-cause motion, the trial court did not hold a hearing until
June 4, 2021, approximately 12 weeks after the arraignment; its opinion and order finding
respondent violated the PPO was not entered until December 14, 2021, approximately nine months
after the arraignment and over six months after the evidentiary hearing; and respondent was not
sentenced in that matter for another three weeks, on January 4, 2022. Resolution of the January

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2021 show-cause motion suffered from similar, though slightly less substantial, delays: the
evidentiary hearing was held on June 25, 2021, approximately 15 weeks after the arraignment; the
trial court’s opinion and order finding respondent violated the PPO was entered on September 29,
2021, approximately 6½ months after the arraignment and approximately three months after the
evidentiary hearing; and respondent was sentenced 16 days later, on October 15, 2021. At the time
this sentence was imposed, respondent had 15 days remaining on a previous 93-day sentence
imposed July 29, 2021. Respondent’s January 4, 2022 sentencing took place when he had 12 days
remaining on the 93-day sentence imposed October 15, 2021.

This timeline standing alone might support respondent’s argument that the trial court was
strategically delaying the proceedings to lengthen the time he would be incarcerated and
effectively impose de facto consecutive sentences. But the timeline fails to account for the full
scope of the proceedings pending before the trial court in this case.

In March 2021, just before his arrest, respondent filed a motion to disqualify the trial court
judge. In April 2021, the trial judge’s wife moved to quash a subpoena respondent sent her in
connection with his disqualification motion, and respondent filed a second motion for
disqualification. The judge recused himself from considering his wife’s motion, and respondent
moved to terminate the 2020 PPO (his second motion to terminate in this matter). In May 2021,
another judge granted the motion to quash the subpoena; the trial court denied respondent’s first
and second motions to disqualify, as well as similar motions respondent filed in four other cases;
respondent filed a third motion for disqualification; and the trial court heard oral argument
regarding respondent’s motion to terminate the PPO. In June 2021, the trial court held evidentiary
hearings on both the August 2020 and January 2021 show-cause motions, and the parties submitted
written closing arguments regarding the August 2020 motion. The trial court also entered opinions
and orders denying respondent’s motion to terminate the PPO and his third motion for
disqualification. In July 2021, respondent filed a fourth motion to disqualify; respondent pleaded
guilty to a third violation of the 2020 PPO and was sentenced regarding the same; and respondent
moved for immediate release on the basis of unaccounted credit for time served since his arrest.
In August 2021, respondent moved for emergency de novo review of his motion for immediate
release and was advised by the chief judge that there was no authority for de novo review of the
trial court’s decision to dispense with oral argument. In September 2021 the trial court entered
opinions and orders denying respondent’s fourth disqualification motion, denying respondent’s
motion for immediate release, and finding that respondent violated the PPO as alleged in
petitioner’s January 2021 motion. In October 2021, respondent moved to correct allegedly invalid
sentences imposed for past PPO violations and to dismiss the remaining allegations. He also filed
his fifth motion for disqualification, along with a supplemental motion alleging that the trial court
was deliberately delaying final resolution of the various PPO violations. On October 15, 2021, the
trial court sentenced respondent pursuant to his September contempt conviction and his motion to
correct his sentences was also heard the following week. In November 2021 respondent moved
for bond pending resolution of his previous appeals. In December 2021 respondent moved to
dismiss the August 2020 show-cause motion and order, and the trial court entered several opinions
and orders—the first found that respondent violated the PPO as alleged in the August 2020 show-
cause motion, the second denied respondent’s fifth motion to disqualify, the third denied
respondent’s motion to correct invalid sentences and dismiss, and the fourth denied respondent’s

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motion for bond pending appeal. A sixth motion to disqualify was also filed in December.
Respondent was sentenced regarding the August 2020 PPO violation in January 2022.

The foregoing timeline reveals the occasional unexplained gap in these proceedings,
particularly in November 2021. But on the whole, respondent’s contention that the trial court was
strategically delaying his proceedings to lengthen the time he was incarcerated is unpersuasive. It
appears that the trial court scheduled each of respondent’s matters as soon as was practical. The
trial court gave each issue thorough attention in the detailed opinions it issued on each motion.
While the entire process was undoubtedly lengthy, the protracted proceedings were largely
attributable to the sheer number of matters the trial court had to address in this and related cases.

Moreover, the motions that resulted in the sentences appealed by respondent were filed in
August 2020 and January 2021. Even if the adjudication and sentencing had occurred promptly
after each motion was filed, it is probable that the sentences would not have overlapped and
respondent would have served just as much time in jail. The record simply does not provide a
basis to believe that the trial court was employing strategic docket management to prolong
respondent’s period of incarceration by imposing de facto consecutive sentences.

Respondent also perfunctorily argues that the trial court’s sentencing schedule violated his
rights to due process and equal protection. Respondent asserts that “[c]ircumventing the norm of
concurrent sentencing absent [a] specific grant of statutory authority for consecutive sentencing
by means of scheduling and delay violates Due Process and Equal Protection.” However, as we
have stated, the trial court did not employ de facto consecutive sentencing in this case. The record
shows that delays between adjudications were most likely attributed to adjudicating respondent’s
many motions. Therefore, it cannot be said that the trial court employed consecutive sentencing
in violation of Due Process and Equal Protection.

Next, relying on this Court’s opinion in In re Contempt of Tanksley, 243 Mich App 123;
621 NW2d 229 (2000), respondent asserts that the trial court’s scheduling in these matters violated
his right to a speedy trial. Respondent’s position is faulty because Tanksley did not address the
constitutional right to a speedy trial. Rather, it considered the timing requirements set forth in
MCL 764.15b and MCR 3.708 for contempt proceedings arising from PPO violations. Id. at 127-
129. The Tanksley Court explained that the versions of MCL 764.15b and MCR 3.708 applicable
at the time of the respondent’s offense both required the hearing regarding the alleged violation to
take place within 72 hours of arrest. Id. at 127-128. Drawing guidance from criminal caselaw
regarding the timing of a preliminary examination, the Court concluded that the appropriate
remedy for failure to hold the contempt hearing within the 72-hour window was dismissal of the
charge without prejudice. Id. at 130-131.

Construing respondent’s argument in these appeals as asserting claims of untimeliness
under MCL 764.15b and MCR 3.708, Tanksley does not support respondent’s claim of error. First,
in pertinent part, MCR 3.708(F) provides:

Following the respondent’s appearance or arraignment, the court shall do
the following:

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 (1) Set a date for the hearing at the earliest practicable time except as
required under MCL 764.15b.

(a) The hearing of a respondent being held in custody for an alleged
violation of a personal protection order must be held within 72 hours after the arrest,
unless extended by the court on the motion of the arrested individual or the
prosecuting attorney. The court must set a reasonable bond pending the hearing
unless the court determines that release will not reasonably ensure the safety of the
individuals named in the personal protection order. [MCR 3.708(F)(1)(a).]

With respect to an individual arrested under MCL 764.15b, subsection (2)(a) similarly requires
that the hearing on the alleged PPO violation “must be held within 72 hours after arrest, unless
extended by the court on the motion of the arrested individual or the prosecuting attorney.” MCL
764.15b(2)(a). Notably, however, the 72-hour requirement applies to “[a]n individual arrested
under this section,” i.e., MCL 764.15b. MCL 764.15b(2). MCL 764.15b(1) authorizes a peace
officer to make a warrantless arrest of an individual the officer has reasonable cause to believe
violated a PPO if certain conditions are met. Unlike the respondent in Tanksley, 243 Mich App at
125, respondent was arrested pursuant to several bench warrants. As such, MCL 764.15b(2)(a)
does not apply to respondent.

Instead, respondent’s proceedings were controlled by subsection (4) of the statute, which
does not contain a timing requirement for the contempt hearing. Moreover, even if the 72-hour
period in MCL 764.15b(2)(a) applied in this case, the statute has been amended since the
proceedings at issue in Tanksley,5 and the current version now provides that “[a] court shall not . . .
dismiss a contempt proceeding based on a personal protection order, or impose any other sanction
for a failure to comply with a time limit prescribed in this section.” MCL 764.15b(8).

Although the statutory mandate for a hearing within 72 hours of arrest does not apply here,
we acknowledge that the court rules contain a similar requirement that “[t]he hearing of a
respondent being held in custody for an alleged violation of a personal protection order must be
held within 72 hours after the arrest, unless extended by the court on the motion of the arrested
individual or the prosecuting attorney.” MCR 3.708(F)(1)(a). However, MCR 3.708(F)(1)(a) does
not apply to this case because respondent was not held in custody solely because of the alleged
PPO violations. Rather, the day after his arrest, another judge arraigned respondent on a bench
warrant issued in St. Clair Circuit Court Case No. 18-1969-PH. That bench warrant arose after
respondent was sentenced to 60 days in jail for violating a PPO held by a nonparty to the instant
case and failed to report to the jail later that afternoon. The judge presiding over the March 4,
2021 arraignment ordered that the previously ordered sentence in that case go into effect
immediately. Thereafter, respondent remained incarcerated on additional sentences for PPO
violations imposed on March 30, 2021, June 22, 2021, July 29, 2021, and the sentences at issue in

5
The PPO violation at issue in Tanksley occurred on March 20, 1998. Tanksley, 243 Mich App at
125. MCL 764.15b was amended to include the nondismissal language in 1999,with an effective
date of July 1, 2000. 1999 PA 269, enacting § 1.

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this case.6 At no point after March 4, 2021, was respondent incarcerated merely to await
adjudication of the PPO violation allegations at issue in these appeals. Neither Tanksley, MCL
764.15b, nor MCR 3.708 compel the conclusion that the delays in adjudicating and sentencing
respondent in these matters require appellate relief.

Lastly, respondent notes that the trial court failed to comply with MCR 8.107(A), which in
pertinent part states, “Decisions, when possible, should be made from the bench or within a few
days of submission; otherwise a decision should be rendered no later than 35 days after
submission.” Subrule (B) requires trial judges to file certified statements identifying “all matters
pending during the reporting period that were not decided within 56 days from submission,”
including the reason that a decision was not made within that time frame. MCR 8.107(B). The
statements are then submitted to the state court administrator, id., thereby facilitating
administrative monitoring of a judge’s case management. Viewing MCR 8.107 in its entirety and
considering its context within Chapter 8 of the court rules (governing administrative rules), it
appears that the timeframe identified in subrule (A) was intended to offer guidance to trial courts
regarding timely disposition of pending matters, rather than a black letter rule. Indeed, by requiring
judges to file a statement regarding matters that remain undecided after 56 days, subrule (B) clearly
contemplates that a decision will not always be made within 35 days of submission. If failure to
decide a matter within 35 days of submission required dismissal as respondent seems to suggest,
there would be no matters that remained undecided after 56 days, and subrule (B) would be
superfluous. This Court will not construe a court rule in a manner that leaves any part surplusage
or nugatory. People v Byars, ___ Mich App ___, ___; ___ NW2d ___ (2023) (Docket No.
357013); slip op at 6. MCR 8.107(A) does not provide an independent basis for relief, nor does it
support respondent’s contention that the trial court engaged in unlawful de facto consecutive
sentencing.

V. JAIL CREDIT

In his final claim of error, respondent argues that he is entitled to jail credit for time served
under MCL 769.11b. We disagree.

“Whether a defendant is entitled to credit for time served in jail before sentencing is a
question of law that we review de novo.” People v Armisted, 295 Mich App 32, 49; 811 NW2d
47 (2011).

MCL 769.11b states,

Whenever any person is hereafter convicted of any crime within this state
and has served any time in jail prior to sentencing because of being denied or unable
to furnish bond for the offense of which he is convicted, the trial court in imposing
sentence shall specifically grant credit against the sentence for such time served in
jail prior to sentencing.

6
The sentences imposed on March 30, 2021, and June 22, 2021, concerned petitioner’s 2016 PPO
against respondent, entered in St. Clair Circuit Court Case No. 16-000741-PP.

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Respondent contends that he is entitled to jail credit under MCL 769.11b even though the reason
he was unable to furnish bond was that he was incarcerated on other sentences. In advancing this
position, respondent relies solely on Justice MARKMAN’s dissent in People v Idziak, 484 Mich 549,
602-633; 773 NW2d 616 (2009) (MARKMAN, J., dissenting), wherein he observed:

The statute is silent with respect to the reason that a defendant is being held, and
only requires that he spend time in jail ‘because of being denied or unable to post
bond for the offense of which is convicted,’ which means that a defendant is entitled
to jail credit on his new sentence as long as he cannot post bond for the new offense,
regardless of the reason.

Respondent’s reliance on Justice MARKMAN’s dissent is clearly misplaced, as it lacks the
weight of binding precedent. See Shawl v Spence Bros, Inc, 280 Mich App 213, 225; 760 NW2d
674 (2008) (explaining that binding precedent requires agreement by a majority of justices). More
important, the precedential value of Idziak comes from the majority opinion reaching the contrary
conclusion. Idziak involved a defendant convicted and sentenced to a new term of imprisonment
while on parole and, according to the majority, he was not entitled to jail credit because “once
arrested in connection with the new felony, the parolee continues to serve out any unexpired
portion of his earlier sentences unless and until discharged by the Parole Board.” Idziak, 484 Mich
at 562 (opinion of the Court). Under such circumstances, the defendant parolee “remains
incarcerated regardless of whether he would otherwise be eligible for bond before conviction on
the new offense.” Id. In other words, the jail credit statute is inapplicable when the defendant “is
incarcerated not ‘because of being denied or unable to furnish bond’ for the new offense, but for
an independent reason.” Id. at 562-563. The same conclusion has been reached in cases not
involving continuation of previous sentences following a parole violation. See, e.g., People v
Raisbeck, 312 Mich App 759, 765-767; 882 NW2d 161 (2015) (holding that the defendant was not
entitled to jail credit for racketeering conviction because she was incarcerated on false pretenses
convictions during period before racketeering sentencing); People v Waclawski, 286 Mich App
634, 688; 780 NW2d 321 (2009) (“While defendant characterizes his time spent in the Illinois jail
as time awaiting extradition on the Michigan charges, he ignores the fact that he was actually
serving time in Illinois because he was convicted of a felony in Illinois and was serving his term
of incarceration for that felony.”).

Respondent was arrested March 3, 2021, and immediately begin serving the 60-day
sentence previously imposed by the trial court in a separate matter. On March 30, 2021, only a
few weeks into the 60-day sentence, respondent was sentenced to 90 days in jail for violating the
PPO petitioner obtained in 2016. Before that sentence was completed, respondent was sentenced
on June 22, 2021, to 93 days in jail for another violation of the 2016 PPO. On July 29, 2021, again
before the last sentence was completed, respondent pleaded guilty to another violation of the
instant PPO and was sentenced to 93 days in jail. With approximately two weeks remaining on
his July 29, 2021 sentence, respondent was sentenced on October 15, 2021, to another 93-day jail
term for the PPO violation at issue in petitioner’s January 2021 show-cause motion. Respondent
remained incarcerated on his October 15, 2021 sentence at the time of the last 93-day sentence
entered on January 4, 2022. Since his arrest, respondent has continuously been in jail serving
sentences for other offenses, regardless of his bond eligibility or ability to post bond. Because he
was incarcerated for reasons independent of the bond issue, MCL 769.11b is inapplicable, and the

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trial court did not err by refusing to grant respondent credit for time served. Idziak, 484 Mich at
562-563.

VI. CONCLUSION

We remand for correction of the October 15, 2021 and January 4, 2022 sentencing orders
to omit the provisions precluding good-time credit. In all other respects, we affirm. We do not
retain jurisdiction.

/s/ Michael F. Gadola
/s/ Christopher M. Murray
/s/ Allie Greenleaf Maldonado

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