                          STATE OF MICHIGAN

                           COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   September 19, 2017
              Plaintiff-Appellee,

v                                                                  No. 331489
                                                                   Oakland Circuit Court
JAMES ORDELL KEYS III,                                             LC No. 2003-193893-FH

              Defendant-Appellant.


PEOPLE OF THE STATE OF MICHIGAN,

              Plaintiff-Appellee,

v                                                                  No. 331490
                                                                   Oakland Circuit Court
JAMES ORDELL KEYS III,                                             LC No. 2004-198075-FH

              Defendant-Appellant.


PEOPLE OF THE STATE OF MICHIGAN,

              Plaintiff-Appellee,

v                                                                  No. 331493
                                                                   Oakland Circuit Court
JAMES ORDELL KEYS III,                                             LC No. 2004-198098-FH

              Defendant-Appellant.


Before: GADOLA, P.J., and METER and FORT HOOD, JJ.

PER CURIAM.

        These consolidated appeals come before this Court pursuant to an order of the Michigan
Supreme Court remanding all three cases for consideration as on leave granted. 500 Mich 878;
886 NW2d 439 (2016). Defendant pleaded guilty to violations of probation with respect to all
three appeals. The trial court revoked defendant’s probation and sentenced him in all three cases

                                               -1-
to 4 to 20 years’ imprisonment for delivery or manufacture of less than 50 grams of a controlled
substance, MCL 333.7401(2)(a)(iv), in Docket No. 331489 to two to five years’ imprisonment
for third-degree fleeing and eluding, MCL 750.479a(3), two to four years’ imprisonment for
malicious destruction of police property, MCL 750.377b, and in Docket No. 331493 to two to
four years’ imprisonment for delivery or manufacture of marijuana, MCL 333.7401(2)(d)(iii),
with all sentences to be served concurrently. We affirm.

                                 I. PROCEDURAL HISTORY

        In Docket No. 331489, defendant pleaded guilty on September 8, 2004 to delivery or
manufacture of less than 50 grams of a controlled substance, MCL 333.7401(2)(a)(iv); third-
degree fleeing and eluding, MCL 750.479a(3); malicious destruction of police property, MCL
750.377b; possession of marijuana, MCL 333.7403(2)(d); and operating a vehicle without a
license, MCL 257.904. In Docket No. 331490, defendant pleaded guilty to delivery of less than
50 grams of a controlled substance, MCL 333.7401(2)(a)(iv); and possession of marijuana, MCL
333.7403(2)(d). In Docket No. 331493, defendant pleaded guilty to delivery or manufacture of
less than 50 grams of a controlled substance, MCL 333.7401(2)(a)(iv); delivery of marijuana,
MCL 333.7401(2)(d)(iii); and driving while license suspended – second or subsequent offense,
MCL 257.904(3)(b). On September 22, 2004, defendant was sentenced to concurrent terms of
273 days in jail for each of the offenses (other than the operating a vehicle without a license for
which defendant was sentenced to a concurrent 90-day term in jail), and to two years’ probation.
Probation orders were entered on October 7, 2004. As a condition of probation, defendant was
to refrain from violating any criminal law, report to his probation officer monthly (or as often as
the probation officer directed), and make monthly payments towards restitution, costs, and fees.

        On September 19, 2005, defendant’s probation officer filed a Report of Nonpayment of
Restitution indicating that defendant had failed to pay an arrearage of $832 in restitution. The
Report further stated:

       The defendant has been unemployed since his release from treatment. He has
       made no payments toward costs and is currently being violated [sic] for new
       criminal behavior and non payment.


On October 14, 2005, an appearance notice was filed in the trial court directing defendant to
appear in court on October 26, 2005 for a violation of probation arraignment. The hearing was
adjourned and bench warrants were subsequently entered on April 3, 2006 indicating that
defendant had failed to appear as ordered for a violation of probation hearing on November 9,
2005.

       Defendant was apprehended in Wayne County in November of 2014 on unrelated
criminal charges. Ultimately, he pleaded guilty to probation violations, acknowledging that he
had failed to report and had been convicted of new criminal activity, and was sentenced.
Subsequently, he brought a motion seeking to correct what he characterized as an invalid
sentence, which was denied. These consolidated appeals followed.

                             II. TRIAL COURT’S JURISDICTION

                                                -2-
        Defendant first claims that the trial court lacked jurisdiction to revoke his probation,
asserting that probation revocation proceedings did not commence before defendant’s term of
probation expired. We disagree.

       MCL 771.4 provides, in pertinent part, as follows:

               It is the intent of the legislature that the granting of probation is a matter of
       grace conferring no vested right to its continuance. If during the probation period
       the sentencing court determines that the probationer is likely again to engage in
       an offensive or criminal course of conduct or that the public good requires
       revocation of probation, the court may revoke probation. All probation orders
       are revocable in any manner the court that imposed probation considers
       applicable either for a violation or attempted violation of a probation condition
       or for any other type of antisocial conduct or action on the probationer’s part for
       which the court determines that revocation is proper in the public interest.
       [Emphasis supplied.]


       As this Court observed in People v Glenn-Powers, 296 Mich App 494, 502; 823 NW2d
127 (2012), citing People v Johnson, 210 Mich App 630, 634; 534 NW2d 255 (1995):
“Probation is a matter of legislative grace. . . . Because it is a matter of grace, a defendant has no
vested right to its continuance and the probation order remains at all times revocable and
amendable.” (Footnotes omitted.) This Court summarized in People v Ritter, 186 Mich App
701, 705-706; 464 NW2d 919 (1991):

              Revocation of probation is not a part of a criminal prosecution. It deprives
       the defendant of only conditional liberty which is properly dependent on
       observance of the terms of the probation order, rather than the absolute liberty to
       which every citizen is entitled. The defendant is a probationer only because he
       has been convicted of a crime. He is not entitled to the full range of due process
       rights associated with a criminal trial. Due process requires only that the
       revocation proceedings be conducted in a fundamentally fair manner. [Citations
       omitted.]


        In Ritter, the defendant was sentenced to a three-year term of probation on August 17,
1982. He pleaded guilty on July 31, 1985 to a violation of that probation and it was extended for
an additional two years. On January 30, 1987, the court issued a petition and bench warrant for
the defendant’s arrest based on allegations that he had violated the terms of his probation by
failing to report to his probation officer and by failing to pay costs, attorney fees, and restitution.
He subsequently left the state and was convicted of a crime in South Carolina. An amended
petition and bench warrant were filed on October 26, 1988, reciting the original allegations as
well as that he had been convicted of a felony in another state. The defendant returned to
Michigan and was found guilty on December 6, 1988 of violating his probation. On January 6,
1989, the court sentenced him to prison for the underlying conviction. Id. at 704-705. On
appeal, the defendant claimed that the sentencing court lacked jurisdiction to revoke his
probation and impose a sentence on the underlying felony conviction since it lost jurisdiction

                                                 -3-
over him when his term of probation expired on August 13, 1987. Id. at 705. This Court
disagreed:

               The original petition and bench warrant against defendant alleging
       violation of the terms of his probation were issued by the sentencing court on
       January 30, 1987, more than seven months before defendant’s probation expired.
       Michigan courts have traditionally held that the sentencing court retains
       jurisdiction to revoke a defendant’s probation if probation revocation
       proceedings are commenced within the probation period and are pending when it
       expires. [Ritter, 186 Mich App at 706 (emphasis added; citations omitted).]


       The defendant further claimed that MCL 771.4 did not allow the trial court to revoke
probation beyond the statutory five-year period set forth in MCL 771.2(1). Ritter, 186 Mich App
at 706-707. This Court again disagreed and observed:

              If adopted, defendant’s interpretation of [MCL 771.4]1 can only result in
       the absurd consequence that any defendant who violates the terms of his probation
       may do so with impunity so long as he manages to evade apprehension until the
       maximum statutory period of probation [set forth in MCL 771.2] expires. We
       cannot conceive that the Legislature intended such a result and will not construe
       MCL 771.4 to require it. We must construe the statute sensibly in order to avoid
       absurd or unjust results. . . .

               Rather, we adopt a construction of the statute which best harmonizes the
       overall context of the probation statutes and the end sought to be achieved. . . . A
       convicted defendant has no vested right in the continuance of his probation if he
       violates its conditions. . . . The probation statutes confer upon the sentencing
       court a broad range of discretionary power in handling all aspects of the
       probationary process. Defendant presents no persuasive reason for limiting the
       court’s discretion in the area of probation revocation, nor do we discern such a
       reason. Therefore, we conclude that MCL 771.4 must be construed to authorize
       the sentencing court to revoke a defendant’s probation, limited only by the
       requirement that the decision to revoke be based on violations which occur during
       the probationary period.

               Our conclusion is reinforced by MCR 6.445(A) which authorizes the
       sentencing court to issue a summons to appear or an arrest warrant upon “finding
       probable cause to believe that a probationer has violated a condition of
       probation.” Thus, we may logically construe the statutory phrase [in the
       predecessor version of MCL 771.4] “[i]f during the period of probation it appears
       to the sentencing court’s satisfaction” to require only that during the probation


1
  While Ritter involved a predecessor version of MCL 771.4, any revisions to the statutory
language are not dispositive in our analysis.


                                               -4-
       period the court find that probable cause exists to believe that the defendant has
       violated his probation in order to justify issuance of a petition to revoke probation
       and a warrant for the defendant’s arrest. As discussed above, a petition was filed
       against defendant on January 30, 1987, for violations of the probation order which
       occurred in November and December 1986. Therefore, we conclude that the trial
       court had jurisdiction to revoke defendant’s probation in October 1988 despite the
       fact that his probation expired on August 13, 1987. [Ritter, 186 Mich App at 707-
       708 (citations and footnote omitted).]


        This Court’s decision in Ritter was consistent with People v Hodges, 231 Mich 656; 204
NW 801 (1925), where a few weeks before the defendant’s term of probation was to expire, the
sheriff filed an application to have it revoked because the defendant had violated his probation
by being convicted of a criminal offense. The revocation proceeding was adjourned to a date
just past the expiration date of the defendant’s probation. After the defendant was sentenced on
the original charge, he moved to set aside the sentence, arguing that it was imposed after the term
of probation had expired. Id. at 657-658. Responding to the defendant’s claim that the
revocation order was not actually entered until after the expiration of the original term of
probation, our Supreme Court stated:

       If no action had been taken during the period of probation a more serious question
       would be presented. But here the petition to revoke the probation was filed within
       the period of probation and we think it must be held that the filing of this petition
       within the period of probation gave the court jurisdiction which was not lost by a
       reasonable delay incident to a hearing upon it. Had objection been made to an
       adjournment the court could then have passed sentence and no question could
       have been raised to its validity. . . . The fact that a witness was ill, or time was
       given defendant to prepare for a hearing, or the work of the court necessitated a
       delay, or for other good reason an adjournment was necessary, did not oust the
       court of jurisdiction to act upon a petition seasonably filed. [Hodges, 231 Mich at
       660-661 (citation omitted).]


       In People v Wakefield, 46 Mich App 97, 98; 207 NW2d 461 (1973), the defendant was
placed on a two-year term of probation for a misdemeanor offense for which the possible
probationary period could not exceed two years. A notice of probation violation was filed three
days after the two-year period expired and a hearing was promptly held, but nothing else
happened until approximately six years later after the defendant was arraigned on a warrant. Id.
at 98-99. Despite the defendant’s protests that he had paid the costs owed and that the delay in
proceeding against him had violated his rights, the court found that he had violated his probation
and sentenced him to prison. Id. at 99. Noting that proceedings against him for violating
probation had not been filed until three days after the probationary period had ended, this Court
reversed the defendant’s sentence and declared:

              Absent a showing that revocation proceedings were pending at the end of
       the two-year period of probation, we are constrained to rule that the trial court lost


                                                -5-
       jurisdiction of the defendant and could not thereafter sentence him to prison. [Id.
       at 100.]


       In People v Valentin, 220 Mich App 401; 559 NW2d 396 (1996), aff’d 457 Mich 1
(1998), the juvenile defendant was sentenced to probation. He was later convicted of a crime
and his probation was revoked. This Court, citing Ritter, determined that the failure to hold a
commitment review hearing - a failure that violated statutory and court rule requirements - did
not deprive the trial court of jurisdiction to revoke the defendant’s probation where the probation
revocation proceedings commenced before the defendant’s term of probation expired. Id. at 407-
408.

        Additional caselaw subsequent to Ritter supports that decision. In People v Glass, 288
Mich App 399, 400; 794 NW2d 49 (2010), the defendant pleaded guilty in May of 2004 and was
sentenced in July of 2004 to a two-year term of probation. In February of 2008, he was found
guilty of violating the terms of his probation and sentenced to prison. Id. The trial court claimed
it had jurisdiction to revoke the defendant’s probation based on People v Marks, 340 Mich 495;
65 NW2d 698 (1954), where our Supreme Court had determined that a trial court possessed
authority pursuant to the predecessor to MCL 771.2 to modify a term of probation any time
during the statutory five-year period that could have been imposed pursuant to the statute. Glass,
288 Mich App at 401-402. However, this Court held that the Marks decision was not applicable
because the trial court had not, as in Marks, altered or amended the defendant’s term of
probation, but instead had revoked the probation, and caselaw had declared “that a probation
revocation must occur, or must at least have been commenced, during the probation period.” Id.
at 403. This Court noted that MCL 771.4 provides that “[i]f during the probation period the
sentencing court determines that the probationer is likely again to engage in an offensive or
criminal course of conduct or that the public good requires revocation of probation, the court
may revoke probation.” Glass, 288 Mich App at 403-404, citing MCL 771.4. The Glass Court
also considered the application of Hodges, Ritter, Wakefield, and Valentin, and concluded:

              The authorities we have examined . . . lead us to the inexorable conclusion
       in this case that the circuit court lacked jurisdiction to revoke defendant’s
       probation and impose a prison sentence. The circuit court sentenced defendant to
       a two-year probation period that expired on June 23, 2006. The court did not sign
       the bench warrant for defendant’s arrest for violating the conditions of his
       probation until February 20, 2007, at the earliest, and the court clerk did not file
       the warrant until March 2, 2007. Because defendant’s probation period had
       already expired well before any probation revocation proceedings had
       commenced, the circuit court did not possess jurisdiction to revoke defendant’s
       probation and sentence him to imprisonment. [Glass, 288 Mich App at 408.]


       Thus, the above authority illustrates that the critical issue is whether probation revocation
proceedings have commenced before a defendant’s term of probation has concluded. In this
case, defendant’s term of probation commenced on September 22, 2004. According to the
probation agent’s statement in the Case Report,


                                                -6-
              [o]n July 22, 2005 Agent Tracy Budnick authored a Violation of Probation
       Report charging the defendant with 1) Failure to remain crime free, 2) Failure to
       make court ordered payments, and 3) Failure to maintain full-time employment.


On September 19, 2005, defendant’s probation officer filed a Report of Nonpayment of
Restitution indicating that defendant had failed to pay an arrearage of $832 in restitution as
ordered. The document also noted that new criminal charges had been filed against defendant.
An appearance notice was filed on October 14, 2005, directing defendant to appear in court on
October 26, 2005. Defendant appeared on October 26, 2005, counsel was appointed to represent
him, and the matter was adjourned until November 9, 2005, for discovery and further
investigation. On April 3, 2006, bench warrants were filed in all three cases asserting that
“defendant failed to appear as ordered in court for VOP HEARING on November 9, 2005 before
this court.” All these proceedings occurred well before defendant’s two-year term of probation
expired on September 22, 2006. Accordingly, consistent with Hodges, Ritter, and Valentin,
defendant’s decision not to attend the probation violation hearing on November 9, 2005 did not
serve to divest the trial court of jurisdiction over defendant for the purpose of revoking his
probation.

        Defendant acknowledges these facts, but claims that the trial court did not “issue a
warrant during the probationary period.” Defendant acknowledges that the records disclose that
the trial court issued a warrant for failure to appear at a show cause hearing, but he claims,
without supporting authority, that this warrant was not a warrant for a probation violation or an
order extending the term of probation, and therefore did not either commence the probation
revocation proceedings or extend the term of probation. However, defendant’s statement that
“[t]he trial court did not issue a warrant during the probationary period” is plainly false. The trial
court issued a bench warrant for defendant’s failure to appear, not at a “show cause” hearing, but
at a violation of probation hearing. The lower court’s register of actions indicates that the
adjourned date of November 9, 2005 was for a “VOP” – a “violation of probation.” Moreover,
the transcript of the January 20, 2016 hearing on defendant’s motion to correct an invalid
sentence indicates that defendant appeared on the initial notice date of October 26, 2005, and that
the matter was adjourned until November 9, 2005 for further discovery and investigation.
Defendant then failed to appear on November 9, 2005. According to the court’s register of
actions, the court directed on November 9, 2005 that a bench warrant should issue for “VOP.”
The bench warrant was signed on March 31, 2006 and filed with the clerk’s office on April 3,
2006. On the face of each warrant was the statement that the bench warrant had issued “for the
reason that the defendant failed to appear as ordered in court for [a] VOP HEARING on
November 9, 2005.” All of these acts served to commence the revocation of probation
proceedings well before defendant’s term of probation expired. Moreover, defendant’s
argument, in effect, urges this Court to adopt an absurd result. As this Court reasoned in Ritter,
186 Mich App at 707:

               If adopted, defendant’s interpretation of the relevant statute can only result
       in the absurd consequence that any defendant who violates the terms of his
       probation may do so with impunity so long as he manages to evade apprehension
       until the maximum statutory period of probation expires. We cannot conceive
       that the Legislature intended such a result . . . .

                                                 -7-
       Defendant also claims that the documents that were sent to him by the probation
department did not initiate the probation revocation proceedings because the summons and the
warrant did not comply with the requirements of the court rules. Thus, in defendant’s view, the
probation revocation proceedings were not “pending” when he was eventually arrested on other
criminal charges and when his probation was subsequently revoked. Defendant bases this
argument on MCR 6.445, which provides, in pertinent part:

               (A) Issuance of Summons; Warrant. On finding probable cause to
       believe that a probationer has violated a condition of probation, the court may

              (1) issue a summons in accordance with MCR 6.103(B) and (C) for the
       probationer to appear for arraignment on the alleged violation, or

              (2) issue a warrant for the arrest of the probationer. 2


This court rule references MCR 6.103(B) and (C). MCR 6.103 provides, in pertinent part, as
follows:

               (B) Form. A summons must contain the same information as an arrest
       warrant, except that it should summon the accused to appear before a designated
       court at a stated time and place.

              (C) Service and Return of Summons. A summons may be served by

              (1) delivering a copy to the named individual; or

              (2) leaving a copy with a person of suitable age and discretion at the
       individual’s home or usual place of abode; or

              (3) mailing a copy to the individual’s last known address.

              Service should be made promptly to give the accused adequate notice of
              the appearance date. The person serving the summons must make a return
              to the court before which the person is summoned to appear.

Additionally, MCR 6.102 provides, in pertinent part, as follows:

              (C) Contents of Warrant; Court’s Subscription. A warrant must


2
  This Court notes that MCR 6.445(A)(1) requires adherence to MCR 6.103, but a similar
provision does not appear in MCR 6.445(A)(2) regarding the issuance of a warrant for a
probationer’s arrest. This suggests that a warrant does not have to comply with the requirements
of MCR 6.103. Therefore, defendant’s argument that the warrant was defective because it did
not comply with MCR 6.445 and MCR 6.103 is not supported by the plain language of those
court rules.


                                                -8-
               (1) contain the accused’s name, if known, or an identifying name or
               description;

               (2) describe the offense charged in the complaint;

               (3) command a peace officer or other person authorized by law to arrest
               and bring the accused before a judicial officer of the judicial district in
               which the offense allegedly was committed or some other designated
               court; and

               (4) be signed by the court.

       Initially, we note that nothing in MCR 6.445, MCR 6.102 or MCR 6.103 indicates that
any technical noncompliance will deprive the court of jurisdiction over the defendant or will
prevent the court from initiating valid probation revocation proceedings against a defendant.
Also, the record reflects that the summons complied with the requirements of the applicable
court rules. Apparently, the probation officer’s summons had the desired effect of causing
defendant to appear in court on October 26, 2005. Defendant has not alleged that at the time of
his appearance he challenged the sufficiency of the summons or claimed that it did not satisfy the
requirements of the court rules.

        Subsequently, defendant failed to appear for the adjourned violation of probation hearing
on November 9, 2005. At that time a bench warrant was requested and the court subsequently
issued the requested warrant in each case. The warrants recited defendant’s name, they were
signed by the court, and they commanded a peace officer to arrest defendant and bring him
before the court. Moreover, the applicable court rules do not specify the requisite detail required
and defendant has failed to provide authority that sets out the nature of the required description.

       An appellant may not merely announce his position and leave it to this Court to
       discover and rationalize the basis for his claims, nor may he give only cursory
       treatment with little or no citation of supporting authority. An appellant’s failure
       to properly address the merits of his assertion of error constitutes abandonment of
       the issue. [People v Konopka (On Remand), 309 Mich App 345, 366; 869 NW2d
       651 (2015) (citations and quotation marks omitted).]


       Regardless, the detail sufficed. The bench warrants listed the underlying charges to
which defendant had previously pleaded guilty and for which he had been sentenced. The
warrants further commanded the police to arrest defendant for his failure to appear for a violation
of probation hearing on November 9, 2005. This description was sufficient to alert defendant
regarding why he was being arrested. The warrant is meant to function as an initial notice to a
defendant by providing him with the basic information about the reason for his arrest; it is not
meant to function as a comprehensive explanation of all the relevant information that he might
eventually need to know. However, it appears that defendant was advised that the bench warrant
was being issued based on defendant’s (1) failure to remain crime free, (2) failure to make court-
ordered payments, and (3) failure to maintain full employment. Considered together, the
documents provided were sufficient to comply with the requirements of the applicable court
rules.
                                                -9-
       Notably, defendant did not object to the form or sufficiency of the summons when he first
appeared in court on October 26, 2005, and he failed to object to the form or sufficiency of the
warrant when he appeared before the court on December 17, 2014, after having been arrested, or
on February 25, 2015, before he pleaded guilty to the probation violations. This failure deprived
the court of any opportunity to address or correct any defects that might have existed. People v
Pipes, 475 Mich 267, 277; 715 NW2d 290 (2006). Because defendant failed to object before
pleading guilty, and because he has failed to provide any authority to support his claim that the
summons or the warrant were insufficient, he has waived any claim that the summons or the
warrant did not comport with the minimal requirements of the applicable court rules.

       We conclude that (1) the probation officer and the trial court filed documents sufficient to
commence the violation of probation proceedings, (2) those proceedings clearly commenced
with the scheduled court appearances on October 26, 2005, and November 9, 2005, (3)
defendant’s failure to appear on November 9, 2005 resulted in the issuance of a bench warrant
more than six months before defendant’s term of probation expired, and (4) the trial court was
therefore not deprived of jurisdiction to continue the probation revocation proceedings when
defendant was eventually apprehended and brought before the court.

         III. DUE DILIGENCE IN THE EXECUTION OF THE BENCH WARRANT

       Defendant also contends that the delay in executing the bench warrant constituted a
waiver of the probation violation and entitles him to have his sentence vacated. He further
claims that counsel was ineffective for failing to challenge the validity of the probation violation
proceeding on these grounds. We disagree.

        The issue, as posed by defendant, is whether the probation authorities exercised due
diligence to execute the warrant where defendant was arrested nine years after the warrant
issued, and then only because he was arrested on other charges. We review the trial court’s
determination concerning the probation authorities’ exercise of due diligence in executing the
bench warrant for an abuse of discretion. cf. People v Bean, 457 Mich 677, 684; 580 NW2d 390
(1998) (recognizing that a trial court’s determination regarding whether the prosecution
exercised diligence and acted in good faith to produce a witness for trial is reviewed for an abuse
of discretion).

        Once a bench warrant has been issued, the authorities charged with its execution have a
duty to exercise due diligence to execute the warrant. People v Ortman, 209 Mich App 251, 254;
530 NW2d 161 (1995). This Court stated in People v Miller, 77 Mich App 381, 384; 258 NW2d
235 (1977), in pertinent, part, as follows:

               [t]o ascertain whether the authorities exercised due diligence between the
       incident allegedly violating probation and the issuing of the probation violation
       notice, we consider it appropriate to refer to the guidelines established by our
       Supreme Court in the speedy trial cases. In People v Collins, [388 Mich 680; 202
       NW2d 769 (1972)], the Court cited the factors to be taken into account in




                                               -10-
       deciding whether a defendant has been deprived of his right to a speedy trial,
       three of which are relevant here: length of delay, reason for delay and prejudice
       to the defendant.3 [Footnote added.]


This Court cited these three factors in Ortman, 209 Mich App at 255, as the factors that should
be analyzed “in determining whether the probation authorities exercised due diligence in
executing the warrant.”

        The length of the delay in this case is approximately nine years. While we acknowledge
the length of the delay, we are not persuaded that length alone, or length of a particular duration,
is automatically indicative of a lack of due diligence.4 Moreover, the trial court found that the
reason for the delay was largely the fact that defendant absconded. The trial court expressly
noted that “[d]efendant presents no evidence showing that the People could have and should
have located and arrested him sooner.” This remains true on appeal. Without credible
evidentiary support, defendant simply asserts that the authorities were aware of his whereabouts
and did not act in a timely manner to apprehend him.

        In support of his assertion that the authorities knew his whereabouts, defendant has
presented a Request and Writ for Garnishment form. However, there is no indication in the
record that (1) defendant was actually in fact served with the form, (2) defendant resided at the
address listed on the form, or (3) defendant appeared or objected to the garnishment. It is also
not clear what the basis for the garnishment was and defendant has not established anything else
about the garnishment other than that a writ was issued.5 Further, the information defendant has


3
 A defendant may incur prejudice in two ways, to his person and to the defense. People v
Williams, 475 Mich 245, 264; 716 NW2d 208 (2006).
4
  Defendant points to People v Hanson, 178 Mich App 507, 510; 444 NW2d 175 (1989) (opinion
by MAHER, J.), where Judge MAHER opined that a twenty-seven-week time period between the
issuance of a bench warrant and its execution was “unreasonable on its face.” However, Judge
MAHER went on to note, in an opinion with which Judge REILLY concurred in result only, that
“jurisdiction to try the case is not lost if the authorities acted with due diligence in attempting to
execute the warrant.” Id. (opinion by MAHER, J.). In her concurring opinion, Judge REILLY
stated that she “reject[ed] Judge MAHER’S statement that the twenty-seven-week delay was
‘unreasonable on its face.’” Id. at 514 (opinion by REILLY, J.). In Judge REILLY’S view, the
determination was best left to the factfinder on remand. Id. (opinion by REILLY, J.). Another
case defendant cites, People v Gunnar, 61 Mich App 569, 570; 233 NW2d 87 (1975), is
distinguishable on its facts where the Court recognized that the probation department was in
possession of the defendant’s address, but did not act to arrest the defendant for almost a year.
5
  With respect to defendant’s reference to a pending Oakland County Friend of the Court matter,
the probation department’s case report includes a statement concerning an outstanding civil
warrant for child neglect issued out of the Oakland County Circuit Court on October 25, 2011.
However, there is nothing in the existing record to confirm that the probation authorities were
aware of defendant’s whereabouts as a result of the child neglect warrant.


                                                -11-
presented in support of his contention that the authorities ought to have ascertained his location
concern Oakland County: his initial arrest on charges in the three cases involved in these
combined appeals, the additional offenses allegedly committed in 2005 that formed part of the
basis for the probation department’s 2005 action to violate defendant’s probation, the tax
garnishment, and a Friend of the Court action. But when defendant was finally located in 2014,
it was not in Oakland County, but rather in neighboring Wayne County. Additionally, there has
been no showing that defendant was known to be a resident of Wayne County before his 2014
arrest. Notably, defendant does not dispute that he failed to appear for the adjourned violation of
probation hearing on November 9, 2005, and that he never subsequently contacted either the trial
court or his probation officer. Consequently, this was more than sufficient to show that
defendant absconded and that he was avoiding legal process. From all that appears in the present
record, defendant was “living off the grid.” Defendant apparently changed his residence to a
different, undisclosed location in a neighboring county and managed to successfully avoid
involvement with the authorities until 2014. His success in avoiding arrest should not be
rewarded with a finding that the authorities were not duly diligent in executing a bench warrant
because they failed to find defendant’s hiding place. The present case is thus distinguishable
from Ortman, where the record in that case reflected that the defendant had lived at the same
house for over 20 years, had not “changed his name, moved, or otherwise attempted to evade the
probation authorities[,]” and the probation authorities did not provide a reason for the delay in
arresting the defendant. Ortman, 209 Mich App at 254.

         Defendant claims that he suffered prejudice because “it is unclear what charges of
probation violation would have been brought in 2005, nor Mr. Key’s defenses” and “the
allegation of new criminal conduct appears to stem from charges resulting from his 2014 arrest.”
Contrary to defendant’s claim, the charges of probation violation he faced in 2005 were clearly
spelled out in documents in the lower court record, as defendant had failed (1) to make required
restitution payments, (2) to be employed, and (3) to avoid committing a new crime. Defendant
also claims that “[t]he allegations of failure to report are unexplained.” However, defendant does
not dispute that he did not report to his probation agent, so this claim is contradicted by the clear
evidence in the record. Finally, defendant asserts that he was prejudiced because of “the
additional charge of ‘new criminal conduct,’ which had not actually occurred during the original
period of probation.” Essentially, defendant is claiming that he suffered prejudice because, by
failing to apprehend him sooner, the probation authorities allowed defendant to continue to break
the law, which resulted in his being charged with new felony criminal offenses. Defendant
cannot blame the probation authorities for his own decision to continue his criminal conduct; this
clearly does not establish prejudice arising from the probation authorities’ lack of due diligence.6
We note that while the delay at issue was lengthy, the reason for the delay was attributable
primarily to defendant’s behavior, and defendant has failed to establish any prejudice from the
delay. Therefore, the trial court did not abuse its discretion in declining defendant’s request to
correct what defendant characterized as an invalid sentence.


6
 The prosecution also correctly observes that defendant was not incarcerated during the nine-
year delay and so did not suffer any prejudice to his person. People v Gilmore II, 222 Mich App
442, 462; 564 NW2d 158 (1997).


                                                -12-
        With respect to defendant’s claim that he was deprived of his right to the effective
assistance of counsel by his counsel’s failure to challenge the trial court’s alleged lack of
jurisdiction where the probation authorities did not act with due diligence, this claim is without
merit. “Defense counsel is not required to make frivolous or meritless motions.” People v
Darden, 230 Mich App 597, 605; 585 NW2d 27 (1998) (citation omitted).

       Affirmed.



                                                            /s/ Michael F. Gadola
                                                            /s/ Patrick M. Meter
                                                            /s/ Karen M. Fort Hood




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