                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     May 16, 2017
               Plaintiff-Appellee,

v                                                                    No. 331531
                                                                     Delta Circuit Court
PHILLIP JAMES LANAVILLE,                                             LC No. 14-008948-FH

               Defendant-Appellant.


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

PER CURIAM.

       Following a bench trial, defendant was convicted of two counts of home invasion, first-
degree, MCL 750.110a(2), home invasion, second-degree, MCL 750.110a(3), breaking and
entering with intent to commit a larceny, MCL 750.110, and unlawful driving away of an
automobile, MCL 750.413. The trial court sentenced defendant as a fourth habitual offender,
MCL 769.12, to concurrent terms of 20 to 30 years for each of the first-degree home invasion
convictions, 11 to 30 years for the second-degree home invasion conviction, 6 to 30 years for the
breaking and entering conviction, and 4 to 30 years for the unlawful driving away of an
automobile conviction. Defendant appeals as of right, and we affirm.

       Defendant’s convictions resulted from a series of break-ins where firearms and other
valuables were stolen. Defendant openly described his crimes to the police.

        Defendant first argues that the charges should have been dismissed because a violation of
the 180-day rule occurred. Generally, prisoners within Michigan correctional facilities who have
pending criminal charges “ ‘shall be brought to trial within 180 days after’ ” the Department of
Corrections (DOC) provides the prosecutor with a written notice of the imprisonment. People v
Lown, 488 Mich 242, 255; 794 NW2d 9 (2011), quoting MCL 780.131(1). This Court reviews a
ruling on a motion to dismiss for violation of the 180-day rule de novo. People v McLaughlin,
258 Mich App 635, 643; 672 NW2d 860 (2003).

        The prosecutor ultimately has the responsibility of moving a case forward towards a trial.
People v Forrest, 72 Mich App 266, 270; 249 NW2d 384 (1976). The Supreme Court has
determined that MCL 780.131 requires that the prosecutor “ ‘proceed promptly’ and ‘move[ ] the
case to the point of readiness for trial’ within the 180-day period,” rather than requiring that the
trial begin in the 180-day period. Lown, 488 Mich at 246, quoting People v Hendershot, 357
Mich 300, 304; 98 NW2d 568 (1959). According to MCL 780.133, the trial court would lose
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jurisdiction and be required to dismiss the case when the “action is not commenced on the matter
within the 180-day period.” Lown, 488 Mich at 256 (quotation marks omitted).

        The 180-day rule requires that the prosecutor begin proceedings on the pending charges
with prompt and “ ‘apparent good-faith action . . . toward readying the case for trial.’ ” Id. at
257, quoting Hendershot, 357 Mich at 304. “[T]he relevant question is . . . whether action was
commenced within 180 calendar days following the date the prosecutor received the notice. If
so, the rule has been satisfied . . . .” Lown, 488 Mich at 247.

       Here, the DOC sent the prosecutor a letter dated March 28, 2014, that informed of
defendant’s imprisonment; it was stamped March 31, 2014, which is the date it was presumably
received by the prosecutor. Defendant’s trial commenced on December 8, 2015. Although it
took 21 months to bring defendant to trial, the prosecutor did commence action toward trial
within 180-days, and continued progressing toward trial without unexcused delay throughout the
procedural history of the case.

        Defendant filed his first motion to dismiss based, in part, on failure to comply with the
180-day rule, on November 25, 2014, and the hearing on this motion was held on December 1,
2014. The trial court denied defendant’s motion, finding that the prosecutor “has commenced
the action to bring the defendant to trial well within the 180-day period, was actually ready to
proceed and has been ready to proceed during that period, and has remained ready to proceed
with the trial at all times thereafter.” The trial court stayed the proceedings on December 12,
2014, while defendant pursued an interlocutory appeal, the application for which was denied by
this Court on March 27, 2015. Defendant states that the trial court’s first denial of his motion to
dismiss was arguably correct, and states that this period of time “is not at issue” in this appeal.
Thus, defendant does not dispute that the prosecutor commenced action to bring defendant to
trial within 180 days of his referral letter from the DOC until the denial of his application for
leave to appeal on March 27, 2015.

        Defendant argues that the prosecutor violated the 180-day rule by failing to timely bring
him to trial after March 27, 2015; trial did not occur until December 8, 2015, over eight months
later. However, the 180-day period is not divisible into sections, as it “is a fixed, consecutive
period.” Lown, 488 Mich at 263. A prosecutor satisfies the 180-day rule by commencing the
action within the 180 days following the notice letter, “unless the prosecutor’s initial steps are
followed by inexcusable delay beyond the 180-day period and [there is] an evident intent not to
bring the case to trial promptly . . . .” Id. at 247 (citation and quotation marks omitted). When
the prosecutor “takes no action or delays inexcusably after taking preliminary steps, . . . ‘the
statute opens the door to a finding by the court that good-faith action was not commenced . . . .’ ”
Id. at 257-258, quoting Hendershot, 357 Mich at 303-304. Essentially, defendant is arguing that
the prosecutor violated the 180-day rule by taking no action or inexcusably delaying following
our Court’s denial of his application for interlocutory appeal.

       Yet, four days after defendant’s application to appeal was denied, the trial court
scheduled a status conference for April 15, 2015. Then, defendant’s trial attorney, John M.
Bergman, died on April 27, 2015. Defendant filed two motions in propria persona on July 7,
2015, one to dismiss based on the assertion that his statement was given while in custody and
one requesting the appointment of his former trial counsel’s son, John M. A. Bergman, as his
counsel, or the appointment of new counsel. Thus, after April 15, 2015, other than filing the two
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motions and the passing of his attorney, there was no action on the case for 100 days, until
August 4, 2015, when the trial court scheduled a status conference for August 7, 2015.

       On August 8, 2015, the trial court appointed John M.A. Bergman as successor counsel.
Thus, between the time of the presumed status conference and the order appointing counsel, 136
days passed. Two days later, the court scheduled the trial to begin on December 8, 2015. The
record does not clearly indicate why trial was scheduled for four months later, but the prosecutor
represented that all parties agreed that the trial date was acceptable. Defendant’s motion to
dismiss was denied on August 12, 2015.

        After defense counsel’s appointment, the prosecutor sent a plea offer to defendant’s trial
counsel. The prosecutor indicated that there had been ongoing negotiations relative to a different
offer between the former prosecutor (who was apparently elected to office) and the first Mr.
Bergman; he revoked the initial offer and presented a new offer. Defendant then sought a
preliminary evaluation of his sentence length on September 4, 2015, and the trial court provided
such an evaluation on September 28, 2015, which was discussed at a September 28 hearing.
Negotiations apparently broke down, as the prosecutor filed a witness list and exhibit list on
October 13, 2015, and issued various trial subpoenas in mid-October 2015. The prosecutor filed
an amended witness list on October 19, 2015, and additional subpoenas were issued. A notice of
intention to admit evidence of other crimes, according to MRE 404(b), was filed on October 20,
2015, which was the subject of a November 9, 2015 hearing, and came after more subpoenas and
a November 4, 2015 second amended witness list. A third amended witness list was also filed on
November 9, 2015.

       A first amended exhibit list was filed on November 12, 2015, and more subpoenas were
issued. Defendant filed several motions in propria persona on November 13, 2015, including
for substitute counsel, notice of perjured testimony, to disqualify the trial judge, to change venue,
to suppress his confession and identification, and to dismiss for violation of the 180-day rule.
The court issued an order allowing the other acts evidence on November 13, 2015. Defendant’s
in propria persona motions were argued at hearings on November 23 and November 30, 2015.
The prosecutor filed responses to the motions on November 24, 2015, and the court issued orders
denying various motions on November 24, 2015, and an opinion denying a motion to disqualify
the judge on December 7, 2015. The trial began as scheduled on December 8, 2015.

       Thus, there was a period of apparent inactivity from the time of the presumed status
conference on April 15, 2015, which included the death of defendant’s counsel on April 27,
2015, and lasted until the appointment of successor counsel on August 8, 2015. The brief period
of time before the death of defendant’s counsel and following the appointment of successor
counsel included several actions moving the case towards readiness for defendant’s trial.

        Although there was a period of inactivity before defendant’s successor counsel was
assigned, there is no evidence to show that “the prosecutor’s initial steps [we]re followed by
inexcusable delay beyond the 180-day period,” that the prosecutor had an “intent not to bring the
case to trial promptly,” Lown, 488 Mich at 247 (citation and quotation marks omitted), or that “
‘good-faith action was not commenced.’ ” Id., at 257-258, quoting Hendershot, 357 Mich at
303-304. “Where the trial does not begin until well after the 180 day period has expired, the
court may still have jurisdiction to proceed if the initial action was followed by reasonable
diligence of the prosecution and steady progress towards trial, even if there have been significant
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delays not caused by the defendant.” Forrest, 72 Mich App at 270. Therefore, the trial court did
not err in denying defendant’s motion for a new trial based on violation of the 180-day rule.

        Next, defendant argues that his right to be present during critical times of his trial was
violated when he was not physically present during three pretrial motion hearings. Defendant
did not object to participating by video, rather than in person. Thus, this issue was not properly
preserved for appeal. Unpreserved claims, including constitutional claims, are reviewed for
plain error affecting substantial rights. People v Carines, 460 Mich 750, 763-764; 597 NW2d
130 (1999). Reversal is warranted only if the plain error resulted in the conviction of an innocent
defendant or if the “error seriously affect[ed] the fairness, integrity or public reputation of
judicial proceedings independent of the defendant’s innocence.” Id. at 763 (citations and
quotation marks omitted; alteration in original).

       On December 1, 2014, defendant participated by video in a hearing on motions to
suppress his confession, and to dismiss the case for violation of the 180-day rule. Three
witnesses, including defendant, provided testimony. Defendant also participated by video in a
November 23, 2015 hearing on his motion for a bill of particulars, motion to disqualify the trial
judge, motion for a new attorney, and motion to give immunity to a witness, and at a November
30, 2015 hearing on motions to change venue, suppress the confession, dismiss for violation of
the 180-day rule, and suppress identification. Witnesses also testified at the November 23
hearing. Defendant did not appear at a November 9, 2015 hearing on the prosecutor’s motion to
admit other acts evidence.

         Defendant argues that his constitutional right to be present at his trial proceedings was
violated. “The Due Process Clause and the Confrontation Clause of the Sixth Amendment, as
applied to the States via the Fourteenth Amendment, both guarantee to a criminal defendant . . .
the right to be present at all stages of the trial where his absence might frustrate the fairness of
the proceedings.” Tennessee v Lane, 541 US 509, 523; 124 S Ct 1978; 158 L Ed 2d 820 (2004)
(citation and quotation marks omitted).1 Defendant had a “right to personal presence at all
critical stages of the trial . . . .” Rushen v Spain, 464 US 114, 117; 104 S Ct 453; 78 L Ed 2d 267
(1983). “Critical stage is understood to mean prosecutorial activity which has some effect on the
determination of guilt or innocence which could properly be avoided, or mitigated, by the
presence of counsel.” People v Donaldson, 103 Mich App 42, 48; 302 NW2d 592 (1981),
quoting People v Killebrew, 16 Mich App 624, 627; 168 NW2d 423 (1969) (quotation marks
omitted).

       However, despite defendant’s right to be physically present at any aspect of the trial
where his “substantial rights might be adversely affected,” People v Mallory, 421 Mich 229, 247;
365 NW2d 673 (1984), the general rule is “that motions, conferences and discussions of law,
even during trial, do not involve substantial rights vital to the defendant’s participation in his




1
    US Const, Ams IV, VI, and XIV.

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defense.” People v Thomas, 46 Mich App 312, 320; 208 NW2d 51 (1973).2 Thus, defendant’s
constitutional right to be physically present at critical stages of his trial was not infringed.

        Defendant also argues, correctly, that the trial court was not authorized by court rule to
conduct pretrial motion hearings with defendant attending by video. MCR 6.006(A) provides for
the use of two-way interactive video technology for court proceedings, as follows:

               District and circuit courts may use two-way interactive video technology
       to conduct the following proceedings between a courtroom and a prison, jail, or
       other location: initial arraignments on the warrant or complaint, probable cause
       conferences, arraignments on the information, pretrial conferences, pleas,
       sentencings for misdemeanor offenses, show cause hearings, waivers and
       adjournments of extradition, referrals for forensic determination of competency,
       and waivers and adjournments of preliminary examinations.

        Because the court rule does not permit a defendant to attend a motion by video, the trial
court erred in conducting motion hearings that defendant attended electronically. Additionally,
because the court rule expressly lists “the proceedings amenable to the employment of two-way
interactive video technology, the Supreme Court has telegraphed that this means of
communication may not be used elsewhere.” People v Heller, 316 Mich App 314, 318; 891
NW2d 541 (2016), citing In re MCI Telecom Complaint, 460 Mich 396, 415; 596 NW2d 164
(1999) (“The express mention of one thing in a statute implies the exclusion of other similar
things.”).3 Further, MCR 6.006(C)(1) permits trial courts to utilize two-way interactive video
technology to allow witnesses to testify from other locations if the defendant is present or has
waived the right to be present at an evidentiary hearing. Thus, within MCR 6.006, the court rule
distinguished between pretrial conferences and evidentiary hearings.

        Although the trial court could not use two-way interactive video technology to ensure
defendant’s presence at pretrial motion hearings, defendant is not able to demonstrate plain error.
We note that he confessed to the crimes, and the pretrial motion hearings were not critical stages
of the trial that required his physical presence. Thus, defendant was not prejudiced by the error,
nor did the error result in proceedings that were unfair to defendant.

       Affirmed.

                                                             /s/ David H. Sawyer
                                                             /s/ Christopher M. Murray
                                                             /s/ Elizabeth L. Gleicher


2
  “A defendant has a right to be present during the voir dire, selection of and subsequent
challenges to the jury, presentation of evidence, summation of counsel, instructions to the jury,
rendition of the verdict, imposition of sentence, and any other stage of trial where the
defendant’s substantial rights might be adversely affected.” Mallory, 421 Mich at 247.
3
 Court rules are interpreted using the same principles that apply to the interpretation of statutes.
People v Buie, 491 Mich 294, 304; 817 NW2d 33 (2012).

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