                            STATE OF MICHIGAN

                            COURT OF APPEALS



In re Estate of PATRICK J. MIKES, SR.


JOHN DOE, Personal Representative of the Estate                      UNPUBLISHED
of PATRICK J. MIKES, SR.,                                            March 17, 2015

               Appellee,

v                                                                    No. 319362
                                                                     Oakland Probate Court
PATRICK J. MIKES, JR.,                                               LC No. 2012-345433-DE

               Appellant.


Before: MARKEY, P.J., and MURRAY and BORRELLO, JJ.

PER CURIAM.

        Appellant Patrick J. Mikes, Jr. (respondent) appeals as of right an October 11, 2013
probate court order granting appellee/personal representative’s (petitioner’s) petition for
revocation of benefits under Michigan’s “slayer statute,” MCL 700.2803. The court denied
appellant’s motion for rehearing and reconsideration on November 12, 2013. For the reasons set
forth in this opinion, we affirm.

                                       I. BACKGROUND

       The 54-year-old decedent, who was respondent’s father, died on August 10, 2012, from
multiple blunt-force injuries to the head. Petitioner, the decedent’s brother, was granted Letters
of Authority on August 31, 2012. Decedent’s heirs were his children Elizabeth, respondent, and
Andrew D. Mikes.

        On September 3, 2013, petitioner filed a petition for forfeiture and revocation of benefits.
Petitioner noted that respondent had been charged with open murder and pleaded guilty but
mentally ill to second-degree murder on August 6, 2013, in connection with his father’s death.
Petitioner attached a copy of a plea agreement in which respondent agreed to plead guilty but
mentally ill in exchange for a sentence of 12 to 20 years imprisonment. On the plea form,
respondent stated the facts as follows:
             On July 27, 2012 at approximately 7:00 a.m. an altercation occurred
       between myself and my father, Patrick Mikes, Sr. During the altercation, I struck

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       my father with a baseball bat rendering him incapable of fighting back. I then
       continued to strike him which resulted in his death. My intent was to cause great
       bodily harm.

       Respondent was sentenced to 12 to 20 years in prison for second-degree murder, MCL
750.317. Petitioner alleged that respondent was barred from inheriting from his father under
Michigan’s slayer statute, MCL 700.2803, which provides in pertinent part that one who
“feloniously and intentionally kills” the decedent forfeits all benefits from the decedent’s estate.

        Respondent answered, alleging that since his stated intent was to cause great bodily harm,
the “feloniously and intentionally kills” requirement was not met. Respondent also argued that
second-degree murder did not require intent to kill. Alternatively, respondent requested an
evidentiary hearing so that his mental health professional could testify regarding his ability to
form the requisite intent to kill.

        A hearing on the petition was heard on October 4, 2013. Petitioner argued that although
second-degree murder did not necessarily require intent to kill, looking to the facts of this crime,
intent to kill was shown. Respondent replied that no findings of fact were made during the plea-
taking, plus the plea was guilty but mentally ill, not simply “guilty.” Furthermore, respondent
argued, second-degree murder is a general intent crime and his intent was only to cause great
bodily harm. This was not an intentional killing. However, respondent maintained, the probate
court should make an independent determination following an evidentiary hearing, because the
facts suggested that he could not have formed the necessary intent. The court responded as
follows:

               I don’t think that the mentally ill portion has anything to do with it
       because if that were the case it would be guilty [sic] by reason of insanity. That
       would be different. But there’s nothing in the slayer statute that mentions
       mentally ill or not and he was still convicted. That just means that you go to jail
       but you get treated for your mental illness, it doesn’t mean that you’re not in
       prison and you go instead to the Center for Forensic Psychiatry. There’s a big
       distinction between not guilty by reason of insanity or guilty but mentally ill. I
       don’t really think that that applies in this situation.

               The bottom line is, I’m not going to have an evidentiary hearing. . . . I
       don’t think that would be appropriate under the circumstances.

        The court took the matter under advisement and issued an opinion on October 11, 2013.
The court found that the legislative choice of the word “kill” rather than “murder” supported
petitioner’s argument. Respondent’s argument urged insertion of definitions of specific intent
into MCL 700.2803, which was neither permitted nor required. The Legislature stated its intent
that a “killer or felon cannot profit from his or her wrong.” MCL 700.2803(5). In addition,
legislative amendments effective in 2012 expanded the statute to include forfeiture of rights from
financial exploitation, child abuse, and domestic violence, and the Legislature also directed
courts to accept a judgment of conviction as conclusive evidence for forfeiture. In absence of a
conviction, the Legislature directed the court to determine criminal accountability using a

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preponderance of the evidence standard. MCL 700.2803(6). This standard was clearly met here,
the court found, by the criminal proceedings in which respondent pleaded guilty to second-
degree murder. Respondent thus was barred from receiving any benefit from the death of his
father.

        Respondent moved for reconsideration or rehearing, arguing that the court did not take
into account that his plea was one of guilty but mentally ill. Mental illness, as defined in MCL
330.1400(g), precluded respondent from forming the required intent to kill, and an evidentiary
hearing should have been held.

       The trial court denied the motion for reconsideration, holding that the plea of guilty but
mentally ill did not require a different outcome. The court held that in accepting respondent’s
plea, the circuit judge necessarily determined under MCL 768.35 and MCL 768.36 that
respondent was guilty beyond a reasonable doubt of second-degree murder and that he suffered
from a mental illness. Nonetheless, respondent had not established by a preponderance of the
evidence that he lacked the substantial capacity to appreciate the nature and quality or
wrongfulness of his conduct or to conform his conduct to the requirements of the law.
Respondent appeals as of right.

                                         II. ANALYSIS

      Review of a probate court decision generally is on the record and is not de novo; if,
however, the issue concerns statutory construction, as in this case, review is de novo. In re
Temple Marital Trust, 278 Mich App 122, 128; 748 NW2d 265 (2008).

        “When interpreting statutes, a court’s primary goal is to determine and give meaning to
the Legislature’s intent.” Cook v Nale, 290 Mich App 704, 706-707; 803 NW2d 907 (2010). “In
construing a statute, the statutory provisions must be read in the context of the entire statute in
order to produce a harmonious whole; courts must avoid a construction that would render
statutory language nugatory.” People v McLaughlin, 258 Mich App 635, 673; 672 NW2d 860
(2003). Additionally, “the Legislature is deemed to act with an understanding of common law in
existence before the legislation was enacted.” Cook, 290 Mich App at 706.

       Michigan’s “slayer statute,” MCL 700.2803, is a subsection of the Estates and Protected
Individuals Code (EPIC), MCL 700.1101 et seq., and it provides in relevant part as follows:

                (1) An individual who feloniously and intentionally kills or who is
       convicted of committing abuse, neglect, or exploitation with respect to the
       decedent forfeits all benefits under this article with respect to the decedent’s
       estate. . . .

              (2) The felonious and intentional killing or the conviction of the felon for
       the abuse, neglect, or exploitation of the decedent does all of the following:

               (a) Revokes all of the following that are revocable:

               (i) Disposition or appointment of property made by the decedent to the
       killer or felon in a governing instrument.

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                                                ***

               (5) A killer’s or felon’s wrongful acquisition of property or interest not
       covered by this section shall be treated in accordance with the principle that a
       killer or felon cannot profit from his or her wrong.

               (6) After all right to appeal has been exhausted, a judgment of conviction
       establishing criminal accountability for the felonious and intentional killing or the
       abuse, neglect, or exploitation of the decedent conclusively establishes the
       convicted individual as the decedent’s killer or as a felon, as applicable, for
       purposes of this section. . . .

       The “‘slayer rule’ derived from the common-law rules that one who commits a murder
cannot benefit by his or her criminal act and that no devisee can take under the will of a testator
whose death has been caused by the criminal act of the devisee.” Cook, 290 Mich App at 707-
708.

        Respondent plead guilty to second-degree murder, MCL 750.317. “The elements of
second-degree murder are: (1) a death, (2) caused by an act of the defendant, (3) with malice, and
(4) without justification or excuse.” People v Goecke, 457 Mich 442, 463-464; 579 NW2d 868
(1998). “Malice is defined as the intent to kill, the intent to cause great bodily harm, or the intent
to do an act in wanton and willful[l] disregard of the likelihood that the natural tendency of such
behavior is to cause death or great bodily harm.” Id. Respondent contends that his conviction
did not establish that he “intentionally” killed the decedent because he stated in the plea that he
only intended to cause great bodily harm. The resolution of respondent’s argument turns on the
definition of the term “intentionally” for purposes of the slayer statute.

         In Cook, this Court examined the scope of the “slayer statute” in a case involving
voluntary manslaughter. In that case, the respondent was convicted of voluntary manslaughter
for the stabbing death of her husband. Cook, 290 Mich App at 705. The personal representative
of the decedent petitioned the probate court for forfeiture and revocation of benefits under the
“slayer statute” and the court granted the petition. Id. On appeal, the respondent argued that the
phrase “feloniously and intentionally” as used in MCL 700.283 did not incorporate voluntary
manslaughter because manslaughter did not involve an intentional killing. Id. at 707. This Court
disagreed, noting that “[a]n essential element of the crime of voluntary manslaughter is the intent
to kill or commit serious bodily harm,” and that “[m]urder and voluntary manslaughter are both
homicides that share the element of being ‘intentional’ killings.” Id. at 709, citing People v
Hess, 214 Mich App 33, 38; 543 NW2d 332 (1995).

        In reaching its conclusion, the Cook Court noted that, at common law, the “slayer rule”
was broad in scope and extended “beyond the crime of murder to manslaughter.” Id. In support
of this assertion, this Court quoted the following common-law description of the “slayer rule” as
set forth in Garwols v Bankers Trust Co, 251 Mich 420, 428; 232 NW 239 (1930):

              “‘To permit a person who commits a murder, or any person claiming
       under him, to benefit by his criminal act, would be contrary to public policy. And
       no devisee can take under the will of a testator whose death has been caused by

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       the criminal and felonious act of the devisee himself. And, in applying this rule,
       no distinction can be made between a death caused by murder and one caused by
       manslaughter.’” [Id., quoting Wharton on Homicide (3d ed.), § 665.]

        The origins of the “slayer rule” support that it is broad and incorporated all forms of
murder. Our Legislature is presumed to have been aware of the scope of the “slayer rule” when
it enacted MCL 700.2803. Nation, 454 Mich at 494. Indeed, the structure of the statute, when
read as a whole, supports that the Legislature intended that the codified version of the rule mirror
the common-law rule. Specifically, the Legislature included paragraph (5) within the statute,
which provides as follows:

               A killer’s or felon’s wrongful acquisition of property or interest not
       covered by this section shall be treated in accordance with the principle that a
       killer or felon cannot profit from his or her wrong. [Emphasis added.]

        Given that statutes must be construed together to form a harmonious whole, McLaughlin,
258 Mich App at 673, and considering this Court’s broad interpretation of the statute in Cook, we
conclude that when paragraph (5) is considered in conjunction with the phrase “feloniously and
intentionally kill” in paragraph (1), the legislation was clearly intended to apply broadly and
incorporate second-degree murder.

        Because MCL 700.2803 incorporates second-degree murder, respondent’s conviction of
that offense conclusively established that he was the decedent’s killer for purposes of MCL
700.2803(1)1 and the probate court properly granted petitioner’s petition for forfeiture and
revocation. Moreover, based on respondent’s account of the crime in his plea, notwithstanding
his conviction, the probate court could have concluded by a preponderance of the evidence that
respondent feloniously and intentionally killed his father. See MCL 700.2803(6) (providing that
in the absence of a conviction, upon motion, the court “shall determine, whether, under the
preponderance of evidence standard, the individual would be found criminally accountable for
the felonious and intentional killing of the decedent”).

        Here, by his own admission, respondent struck the decedent with a baseball bat,
rendering him incapable of defending himself, and then continued to beat him until he died. As
this Court has previously noted, “[t]he intent to kill may be implied where the actor actually
intends to inflict great bodily harm or the natural tendency of his behavior is to cause death or
great bodily harm.” People v Watts, 149 Mich App 502, 513-514; 386 NW2d 565 (1986); see
also People v Morrin, 31 Mich App 301, 310-311; 187 NW2d 434 (1971) (“[A]s malice
aforethought is now defined, a killing may be murder even though the actor harbored no hatred
or ill will against the victim and even though he acted on the spur of the moment.”) Here, the
preponderance of the evidence supported that respondent’s actions evinced intent to kill.
Moreover, the “catch all” provision in MCL 700.2803(5), which provides that “a killer or felon
cannot profit from his or her wrongdoing,” further supported the probate court’s decision in this


1
  Respondent does not contend that he is has not exhausted “all right to appeal” his criminal
conviction for purposes of MCL 700.2803(6).


                                                -5-
case. One who bludgeons another to death by repeating striking him with a baseball bat cannot
profit from such conduct.

       Next, respondent argues that the probate court erred in denying his request for an
evidentiary hearing. Respondent requested an evidentiary hearing to allow his mental health
professional to testify that he lacked the ability to form the requisite intent.

        We review a lower court’s decision whether to hold an evidentiary hearing for an abuse
of discretion. People v Unger, 278 Mich App 210, 216-217; 749 NW2d 272 (2008). An abuse
of discretion occurs when the court’s decision falls outside the range of reasonable and
principled outcomes. Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809 (2006).

        The probate court held that an evidentiary hearing was not necessary. This did not
constitute an abuse of discretion. MCL 700.2803(6), quoted above, provides that a conviction
“conclusively establishes” the defendant as “the decedent’s killer or as a felon, as applicable, for
purposes of this section.”2 The probate court appropriately found that the “mentally ill” portion
respondent’s plea did not change this result and therefore there was no need to hold an
evidentiary hearing. Specifically, MCL 768.36 sets forth the requirements for finding a criminal
defendant “guilty but mentally ill,” as follows:

                (1) If the defendant asserts a defense of insanity in compliance with
       section 20a of this chapter, the defendant may be found “guilty but mentally ill”
       if, after trial, the trier of fact finds all of the following:

       (a) The defendant is guilty beyond a reasonable doubt of an offense.

       (b) The defendant has proven by a preponderance of the evidence that he or she
       was mentally ill at the time of the commission of that offense.

       (c) The defendant has not established by a preponderance of the evidence that he
       or she lacked the substantial capacity either to appreciate the nature and quality
       or the wrongfulness of his or her conduct or to conform his or her conduct to the
       requirements of the law. [Emphasis added.]

        Thus, by accepting respondent’s plea, the circuit court necessarily found that respondent
failed to establish by a preponderance of the evidence that he lacked the capacity to either
appreciate “the nature and qualify or the wrongfulness of [his] conduct or to conform [his]
conduct to the requirements of the law.” Therefore, simply because respondent plead guilty but
mentally ill did not amount to poof that he did not intend to kill his father. Furthermore, the plea
did not necessitate an evidentiary hearing where respondent’s admissions in the plea would have
allowed the probate court to conclude by a preponderance of the evidence that respondent
feloniously and intentionally killed his father or where the court could have concluded that


2
  Respondent does not contend that he is in the process of exhausting his right to appeal his
criminal conviction under MCL 700.2803(6).


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respondent’s conduct fell within the catch-all provision under MCL 700.2803(5). In short, based
on the statutory provisions, the court did not abuse its discretion in concluding that an
evidentiary hearing was not warranted, all of the relevant facts having been established by the
circuit and probate court proceedings.

        Affirmed. Appellee having prevailed, may tax costs. MCR 7.219(A). We do not retain
jurisdiction.




                                                          /s/ Jane E. Markey
                                                          /s/ Christopher M. Murray
                                                          /s/ Stephen L. Borrello




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