                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    June 2, 2015
               Plaintiff-Appellant,

v                                                                   No. 315983
                                                                    Muskegon Circuit Court
MAURICE DANTE HENDERSON,                                            LC No. 12-062643-FH

               Defendant-Appellee.


                                         ON REMAND

Before: SHAPIRO, P.J., and STEPHENS and RIORDAN, JJ.

PER CURIAM.

         The prosecution appeals by right from the trial court order granting defendant’s motion to
dismiss the criminal charges against him on the basis of the “180-day rule.” MCL 780.131-
780.133. The trial court found two violations of the rule. When we1 first heard this case, we
affirmed the trial court’s finding of the first violation and, accordingly, declined to address its
second finding. People v Henderson, unpublished opinion per curiam of the Court of Appeals,
issued November 6, 2014 (Docket No. 315983), p 5. The prosecution applied for leave to appeal
to our Supreme Court, which reversed our affirmance and remanded the case for us to consider
the trial court’s finding of a second violation of the 180-day rule. People v Henderson, ___ Mich
___; 861 NW2d 50 (2015). On remand, we conclude that the trial court erred in finding the
second violation and, accordingly, reverse and remand for proceedings consistent with this
opinion.

                                              I. FACTS

       The underlying facts described in our original opinion have not changed and are quoted
below in relevant part:




1
 Judge Riordan has been substituted for Judge Whitbeck, who originally sat on this panel but
has since retired.



                                                -1-
               On March 16, 2012, police officers executed a search warrant at the
       residence of defendant’s mother in Muskegon Heights. While executing the
       search warrant, an officer found two handguns inside of a duffel bag; the duffel
       bag was in a room in the basement of the residence that contained many items that
       belonged to defendant. On March 19, 2012, a police officer interviewed
       defendant regarding the guns; at that time, defendant was housed at the Ottawa
       County jail awaiting the disposition of several alleged parole violations. When
       the police interviewed defendant, he admitted that he knew that the guns were in
       the basement. Defendant further stated that a friend gave the duffel bag to him
       and he had kept the bag because “he was afraid that his friend was going to do
       something stupid with it.” In addition, at the time defendant was given the duffel
       bag by his friend, defendant had been convicted of a felony and was prohibited
       from possessing a firearm. At some point after March 19, 2012, defendant
       apparently pled guilty to, or was found guilty of, the parole violations for which
       he was being held in the Ottawa County jail because he was remanded to the
       custody of the [Michigan Department of Corrections (DOC)] for parole
       violations.

              On May 3, 2012, the DOC mailed a certified letter addressed to the
       Muskegon County Prosecutor. The letter references defendant and “possible
       firearm charges,” and states . . . .[2]

                                             * * *

               On July 12, 2012, a warrant for defendant’s arrest was authorized and a
       felony warrant was issued for defendant on July 20, 2012, charging defendant
       with one count of felon in possession of a firearm, MCL 750.224f, and one count
       of possessing a firearm during the commission of a felony, MCL 750.227b,
       arising out of the discovery of the handguns in the duffel bag. On July 20, 2012, a
       felony complaint was filed alleging that defendant committed the charged
       offenses. Defendant was arraigned in the district court on October 10, 2012, and
       bond was set. A preliminary examination was held on October 24, 2012, and, at
       the conclusion of the preliminary examination, defendant was bound over to the
       circuit court on all of the charges in the felony complaint. A felony information
       was filed in circuit court on October 26, 2012. On November 16, 2012, the trial
       court held a pretrial hearing, but in December 2012, the case was reassigned
       within the trial court due to docket management. The case was set for trial with
       the new judge on February 26, 2013.

             On March 8, 2013, defendant moved to dismiss the case, arguing that the
       180-day rule had been violated. A hearing was held on defendant’s motion on


2
  The Supreme Court reversed our previous finding that this letter was sufficient to trigger the
180-day period under MCL 780.131. Henderson, 861 NW2d 50. Thus, the facts regarding this
letter have been omitted.



                                               -2-
       March 18, 2013, at which time the trial court requested supplemental briefing on
       several issues. On March 28, 2013, the trial court issued an opinion and order
       granting the motion to dismiss, finding that the prosecution did not comply with
       the 180-day rule. The trial court agreed with the prosecution that at the time the
       DOC letter was sent, there were no charges pending against defendant. However,
       the trial court found that [People v Lown, 488 Mich 242; 749 NW2d 9 (2011)],
       “appears to contemplate that the DOC notice could be valid even if provided prior
       to the commencement of the criminal litigation. So the court cannot conclude that
       the DOC’s May notice is a nullity.” After the trial court found that the May 3,
       2012 notice triggered the 180-day rule, it went on to find that “[u]nder this
       interpretation, the court must grant the motion, since the clock started in May. It
       must be remembered that the statute itself requires the inmate ‘to be brought to
       trial’ within 180 days.”

               Further, the trial court found that “there is a second analysis which also, in
       the end, requires granting defendant’s motion.” The trial court went on to find
       that even if the DOC letter was disregarded, the 180-day “clock started ‘ticking’
       in July when the complaint was filed;” therefore, the 180-day period provided by
       MCL 780.131 “would have expired in mid-January.” Because the trial was not
       originally scheduled to start until February 26, 2013, the trial court found that
       “[t]he only logical conclusion left for the court is that prosecutor [sic] had an
       intent to not bring the case to trial promptly.” [Henderson, unpub op at 2-3
       (footnote omitted).]

We are tasked with reviewing the court’s finding of a second violation.3

                                         II. ANALYSIS

       The 180-day rule provides procedures that must be followed when criminal charges are
brought against a defendant incarcerated in a state correctional facility. See Lown, 488 Mich at
254. An inmate incarcerated by the DOC and who has charges pending against him “shall be
brought to trial within 180 days after” the DOC delivers written notice of the inmate’s location
and status to the prosecuting attorney for the county in which the charges are pending. MCL
780.131(1); Lown, 488 Mich at 255. If “action is not commenced on the matter” within 180
days, the trial court loses personal jurisdiction over the defendant and the charges must be
dismissed with prejudice. MCL 780.133. The rule does not require that trial commence within
180 days; rather, “it is sufficient that the prosecutor ‘proceed promptly’ and ‘move [] the case to
the point of readiness for trial’ within the 180-day period.” Lown, 488 Mich at 246, quoting
People v Hendershot, 357 Mich 300, 304; 98 NW2d 568 (1959).

      The trial court’s second basis for finding a violation of the 180-day rule was that, even if
the May 3, 2012 DOC letter was disregarded, the 180-day period began to run in July 2012 when


3
 Questions of statutory interpretation, such as construing the “meaning and proper application of
MCL 780.131 and MCL 780.133” are reviewed de novo. Lown, 488 Mich at 254-255.



                                                -3-
the prosecution filed the complaint charging defendant with the subject firearm offenses.
However, we find no statutory language nor caselaw in support of a principle that the filing of a
complaint charging an incarcerated defendant, in and of itself, triggers the running of the 180-
day period. The period only begins to run the day after the prosecution receives notice from the
DOC that the defendant is incarcerated in a particular prison and is awaiting trial on the newly
filed charges. People v Williams, 475 Mich 256-257 n 4; 716 NW2d 208 (2006). In this case,
our Supreme Court expressly held that the May 3, 2012 DOC letter was insufficient to trigger the
180-day period. Henderson, 861 NW2d 50. Because this letter was insufficient to trigger the
180-day period, and there is no legal basis to conclude that the filing of the complaint was
sufficient to trigger same, we conclude that the trial court erred in finding a second violation of
the 180-day rule.

        Reversed and remanded for proceedings consistent with this opinion.4 We do not retain
jurisdiction.



                                                              /s/ Douglas B. Shapiro
                                                              /s/ Cynthia Diane Stephens
                                                              /s/ Michael J. Riordan



4
       Despite our ruling, we reiterate our criticism of the Muskegon County Prosecutor, as
discussed in our earlier opinion:

       . . . [W]e are troubled by the prosecution’s failure to take appropriate action to
       correct its brief after having learned that it contained factual assertions, central to
       the analysis of the case, that it subsequently learned were false. The prosecutor
       asserted in its brief that the DOC letter in question had never been sent and
       intimated that the copy on which defendant relied was fraudulent. That brief was
       filed on August 6, 2013. Six weeks later, on October 1, 2013, the prosecution
       learned that these assertions were factually false. During the approximately 11
       months that followed, the prosecution did not inform this Court of its discovery
       nor amend its brief. Perhaps more significant, the prosecution made no effort to
       inform defense counsel of its discovery. The discovery was only revealed after
       this Court sua sponte ordered oral argument and it appears highly unlikely that the
       defense or the Court would have ever learned of it, but for the direction that the
       parties appear for oral argument. “[A] prosecutor’s role and responsibility is to
       seek justice and not merely to convict[.]” People v Dobek, 274 Mich App 58, 63;
       732 NW2d 546 (2007). And all attorneys, including prosecutors, have a duty of
       candor to the court and to the opposing party. We therefore caution the
       prosecutor to take all steps necessary to avoid such circumstances in the future.
       [Henderson, unpub op at 6.]




                                                -4-
