                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     April 12, 2018
               Plaintiff-Appellant,

v                                                                    No. 337455
                                                                     Wayne Circuit Court
NELSON KELLY SCOTT,                                                  LC No. 16-009370-01-FC

               Defendant-Appellee.


Before: SAWYER, P.J., and HOEKSTRA and MURRAY, JJ.

PER CURIAM.

         In August 2016, defendant was charged with two counts of first-degree criminal sexual
conduct (CSC), MCL 750.520b, for conduct that allegedly occurred approximately 19 years
earlier, on September 6, 1997. Defendant filed a motion to dismiss the charges, which the trial
court granted based on the conclusion that the delay violated defendant’s due process rights. The
prosecution now appeals as of right the trial court’s order dismissing the charges with prejudice.
Because defendant failed to show that he was prejudiced by the delay, the trial court abused its
discretion by granting defendant’s motion to dismiss. Accordingly, we reverse and remand for
reinstatement of the charges.

        The procedural history in this case is uncontested. Defendant was originally charged
with CSC in 1997 for allegedly assaulting the victim in this case, PM. In 1997, defendant was
also charged with CSC for crimes perpetrated against two additional victims—RO and GF. At
the preliminary examination for the PM case, PM failed to appear, purportedly because she was
never subpoenaed. The examination was adjourned, but when PM failed to appear at the
rescheduled preliminary examination, the trial court dismissed the case without prejudice.

       Meanwhile, proceedings related to the RO and GF cases were ongoing, and defendant
eventually reached a plea agreement with the prosecution regarding those cases. On March 4,
1998, defendant was sentenced to concurrent terms of 15 to 25 years’ imprisonment for three
counts of first-degree CSC and one count of first-degree home invasion. Defendant was released
from prison on November 19, 2015.

       In August 2016, after obtaining DNA evidence implicating defendant in the PM case, the
prosecution refiled the CSC charges that had been dismissed in 1997. Defendant filed a motion
to dismiss, arguing that the prosecution’s delay in refiling the charges violated his constitutional
due process rights. The trial court agreed, and granted defendant’s motion. The prosecution now
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appeals, arguing that defendant failed to establish that he was prejudiced by the delay and that
the trial court thus abused its discretion by granting defendant’s motion. We agree.

        “This Court reviews a trial court’s ruling regarding a motion to dismiss for an abuse of
discretion.” People v Adams, 232 Mich App 128, 132; 591 NW2d 44 (1998). “A trial court may
be said to have abused its discretion only when its decision falls outside the range of principled
outcomes.” People v Nicholson, 297 Mich App 191, 196; 822 NW2d 284 (2012). The
underlying legal question, “whether the delay in charging defendant violated his right to due
process of law,” is a question of law that we review de novo. People v Reid (On Remand), 292
Mich App 508, 511; 810 NW2d 391 (2011).

       “A prearrest delay that causes substantial prejudice to a defendant’s right to a fair trial
and that was used to gain tactical advantage violates the constitutional right to due process.”
People v Woolfolk, 304 Mich App 450, 454; 848 NW2d 169 (2014). Michigan applies a
balancing test to determine whether a delay violates a defendant’s constitutional right to due
process of law. People v Cain, 238 Mich App 95, 108; 605 NW2d 28 (1999). Under this
balancing test, a defendant bears the initial burden of demonstrating prejudice. Adams, 232 Mich
App at 134.

       [O]nce a defendant has shown some prejudice, the prosecution bears the burden
       of persuading the court that the reason for the delay is sufficient to
       justify whatever prejudice resulted. This approach places the burden of coming
       forward with evidence of prejudice on the defendant, who is most likely to have
       facts regarding prejudice at his disposal. The burden of persuasion rests with the
       state, which is most likely to have access to facts concerning the reasons for delay
       and which bears the responsibility for determining when an investigation should
       end. [Id. at 133-134 (citation omitted).]

        To meet the initial burden of demonstrating prejudice, the defendant must present
evidence of “actual and substantial prejudice to his right to a fair trial.” Id. at 134 (quotation
marks and citation omitted). Actual prejudice cannot be shown by mere speculation; that is, “[a]
defendant cannot merely speculate generally that any delay resulted in lost memories, witnesses,
and evidence, even if the delay was an especially long one.” Woolfolk, 304 Mich App at 454
(citations omitted). “Substantial prejudice is that which meaningfully impairs the defendant’s
ability to defend against the charge in such a manner that the outcome of the proceedings was
likely affected.” People v Patton, 285 Mich App 229, 237; 775 NW2d 610 (2009).

        In this case, the court found that defendant was prejudiced by the passage of time
between the dismissal of charges in 1997 and the refiling of the charges in 2016. Specifically,
the trial court concluded that defendant was prejudiced by the delay because, had the charges
been pursued in 1997, (1) defendant “might have had an alibi witness” and (2) the charges
relating to PM could have been included in the plea agreement relating to RO and GF, whereas
defendant now essentially faces consecutive sentencing “that was never contemplated or
bargained for or agreed upon in his original plea.” Contrary to the trial court’s conclusions,
speculations regarding a possible alibi and the potential for adverse sentencing consequences do
not constitute actual and substantial prejudice to defendant’s right to a fair trial, and thus


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defendant’s due process argument must fail because he has not shown prejudice. Adams, 232
Mich App at 134.

        In particular, the trial court first reasoned that defendant “might” have lost an alibi
witness. The trial court hypothesized that, for all anyone knew, defendant “might have been on
the clock at McDonald’s that day . . . .” However, regardless of the passage of time, speculation
as to lost witnesses or evidence is insufficient to establish prejudice. See Woolfolk, 304 Mich
App at 454. Defendant is tasked with presenting evidence of prejudice that is actual and
substantial. Id.; Adams, 232 Mich App at 134. Defendant has failed, however, to name any
actual alibi witnesses and he has failed to provide any details of a possible alibi defense. Cf.
Patton, 285 Mich App at 237. Defendant has not shown prejudice based on the speculative
possibility that he might have had an alibi.

        In attempting to establish prejudice, on appeal defendant references a specific witness—
the victim’s son—who has died and is no longer available as a witness. The victim’s son
witnessed the assault on PM, and defendant now claims prejudice because this witness is
unavailable. However, defendant also admits that he has no idea what testimony the witness
would have offered, and there is no indication that the loss of this testimony actually and
substantially prejudiced defendant’s ability to receive a fair trial. “[A] defendant does not show
actual prejudice based on the death of a potential witness if he has not given an indication of
what the witness’s testimony would have been . . . .” Adams, 232 Mich App at 136 (citation
omitted). Indeed, given that the witness was a potential prosecution witness, it would seem that,
if any party has been prejudiced by the passage of time, it is the prosecution that will be
detrimentally affected by the loss of this witness. Cf. id. at 136-137. In short, the death of the
victim’s son does not establish that defendant has suffered actual and substantial prejudice.

        Finally, the trial court also found that defendant was prejudiced with regard to sentencing
because of the plea agreement pertaining to the RO and GF cases. The trial court theorized that
defendant would have been able to include the charges relating to PM in his plea agreement
relating to the other cases and that defendant could have served his sentences concurrently,
whereas now, if convicted and sentenced, defendant will effectively have received consecutive
sentences. There are two flaws with the trial court’s reasoning. First, while it is possible that the
charges relating to PM could have been included in the plea agreement in 1997, there is nothing
in the record to suggest that this possibility is anything more than speculation. That is, there is
no indication that the parties intended for the plea agreement to apply to the PM case. Defendant
cannot establish prejudice based on speculation regarding his plea agreement. See Woolfolk, 304
Mich App at 454. Second, and more importantly, defendant’s attempt to show prejudice by
demonstrating unfavorable sentencing ramifications is misplaced in the context of the due
process analysis before us. When considering whether a defendant was prejudiced by a delay in
pursuing charges, “[w]hat must be kept in mind is that the prejudice to the defendant must impair
his right to a fair trial, not merely that it has an adverse impact upon the sentence imposed upon
the defendant.” People v Ervin, 163 Mich App 518, 520; 415 NW2d 10 (1987). See also United
States v Ivy, 678 Fed Appx 369, 374 n 3 (CA 6 2017) (finding “no authority for the proposition
that a delay that may affect one’s ability to serve sentences concurrently . . . implicates due
process”). In other words, the question before the trial court was whether defendant’s ability to
defend against the charges had been meaningfully impaired by the prearrest delay, Patton, 285
Mich App at 237, not whether defendant might have received a better “package” deal or served

                                                -3-
concurrent sentences had the PM case been litigated in 1997. 1 See Ervin, 163 Mich App at 520.
Thus, the trial court erred by finding prejudice to defendant based on potentially negative
sentencing consequences.

       Overall, defendant has not shown that his ability to defend against the charges was
impaired by the delay, and thus the burden did not shift to the prosecutor to establish the
reasonableness of the delay. See Adams, 232 Mich App at 136. Because defendant has not
presented evidence of prejudice, his due process claim is without merit. Accordingly, the trial
court abused its discretion by granting defendant’s motion to dismiss based on the delay in
pursuing the charges related to PM. Id. at 138-139.

        Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.



                                                            /s/ David H. Sawyer
                                                            /s/ Joel P. Hoekstra
                                                            /s/ Christopher M. Murray




1
  The trial court also suggested that defendant’s original attorney, who has since died, could be
considered ineffective for failing to ensure that the PM charges were included in the plea
agreement; but, without some indication that the prosecution was amenable to including the PM
charges in the plea offer, there is no basis for concluding that defense counsel was ineffective
during the plea bargaining process and defendant is not entitled to relief on this basis. See
People v Douglas, 496 Mich 557, 592; 852 NW2d 587 (2014). Moreover, defendant’s claim is
not one for ineffective assistance; instead, he claimed a due process violation based on the delay
in pursuing charges relating to PM. As noted, the due process inquiry focuses on a defendant’s
ability to defend against the charges, not his ability to obtain a plea bargain that would include
concurrent sentencing. We see no basis for concluding that defendant’s due process rights were
violated because his attorney failed to obtain resolution of the PM charges in 1997.


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