ARM v. KJL

342 Mich.App. 283

995 N.W.2d 361

ARM, Petitioner, and People of the State of Michigan, Appellee, v. KJL, Respondent-Appellant.

ARM, Petitioner-Appellee, v. KJL, Respondent-Appellant.

ARM, Petitioner-Appellee, v. KJL, Respondent-Appellant.

No. 357120

No. 358858

No. 358859

Court of Appeals of Michigan.

Submitted June 1, 2022, at Detroit.

Decided July 14, 2022, 9:15 a.m.

Outside Legal Counsel PLC, Hemlock (by Philip L. Ellison ) for respondent in No. 357120.

State Appellate Defender (by Jacqueline J. McCann and Rasheed M. Gilmer ) for respondent in Nos. 358858 and 358859.

Before: Cameron, P.J., and O'Brien and Swartzle, JJ.

Swartzle, J. ARM sought and received several domestic personal protection orders (PPO) against KJL. This appeal centers on one PPO issued by the trial court in 2016. We conclude that KJL's conviction of criminal contempt survives his various challenges on appeal, and we further conclude that KJL's claim that his separate sentences were de facto consecutive sentences is moot. While we also find that his claim involving good-time credit is likewise moot, we choose to address it because it has public significance and would likely evade appellate review in future cases. On this latter claim, we agree with KJL that the local sheriff's policy of categorically prohibiting certain offenders from earning good-time credit—i.e., those incarcerated for contempt of court—runs directly contrary to the statute enacted by our Legislature.

Accordingly, for the reasons more fully explained below, we affirm in part and reverse in part.

I. BACKGROUND

There is a lengthy history between ARM and KJL. The two share a child, and there was an acrimonious custody battle over the child. Based on allegations of mental and physical domestic violence, ARM obtained and received a PPO against KJL in 2015. The trial court held an evidentiary hearing and found that the PPO had been properly granted and that KJL had violated it; KJL violated the PPO again later that year. The PPO eventually lapsed by its own terms in March 2016.

Immediately thereafter, ARM sought another PPO against KJL, the one at issue in this appeal. ARM made various allegations against KJL, including repeated unwanted contacts with her and her friends and family on social media. The trial court entered the order on March 31, 2016, without a hearing. In addition to other prohibitions not relevant to this appeal, the PPO barred KJL from stalking petitioner, as defined under MCL 750.411h and MCL 750.411i. (The order was subsequently amended to permit contact between the parties at parenting-time exchanges.) KJL moved to terminate the PPO in April 2016, and, after several proceedings, the trial court denied the motion in March 2018. KJL did not argue at that time that the PPO violated his right to free speech, nor did he appeal the trial court's order.

In March 2019, ARM filed a show-cause motion with respect to the present PPO, alleging that KJL had used a Facebook profile with the name of his deceased father, "KW," to speak directly to ARM, speak about her with others, tag her in comments, share photographs and posts from her old Facebook account, and post an order from their custody case that included her address. She argued that this conduct violated the PPO.

The trial court held an evidentiary hearing on the matter. During the hearing, ARM offered "Exhibit A" as proof that KJL violated the PPO. Exhibit A consisted of 12 pages of screenshots ARM took on her cell phone of a Facebook page KJL created called "Justice for O." (O is the child of ARM and KJL.) In the screenshots, "KW" alleged that ARM associated with a sex offender and allowed the offender to interact with O. "KW" also posted screenshots of ARM's old Facebook posts on past Father's Days that expressed love and affection for KJL. Then, on page seven of the exhibit, "KW" appeared to tag ARM in a comment, which directly alerted ARM about the post.

When the prosecutor offered to admit Exhibit A into evidence, KJL's attorney asked if the prosecutor was moving to admit "pages one through 12." The prosecutor answered "[y]es," to which KJL's attorney responded, "I have no objection to that."

ARM testified that she believed KJL wrote the posts purportedly by "KW" because she recognized KJL's writing style and how he used social media. The prosecutor objected on cross-examination to questions about page three of the exhibit, prompting the trial court to question whether the post on page three was "one of the things that [ARM]’s asserting as a violation of the PPO." The prosecutor responded that only the posts on pages 8 through 12 were alleged to be direct violations of the order. In light of this explanation, KJL's attorney moved to strike pages one through seven from the record. The prosecutor opposed the motion, reasoning that the earlier pages provided context for the subsequent pages. The trial court agreed with the prosecutor, stating that pages one through seven "may support an interpretation of eight through 12, and it's already part of the record so I'm not going to strike it." KJL's attorney then proceeded to question ARM in detail about the entirety of Exhibit A, including the first seven pages.

After ARM's testimony concluded, the trial court admitted into evidence phone calls KJL made in jail after ARM filed her show-cause motion. During the calls, KJL discussed with his sister, MC, and at least one other person, various Facebook posts that they should make on the "Justice for O" page. During one of the calls, KJL gave specific instructions about what he wanted posted on the "Justice for O" profile (the "Justice for O" page and profile are two separate Facebook accounts), detailing the post's precise words and even spacing. In a subsequent call, KJL directed a person to "make sure that you're posting as [KW] too.... Because ... that's just going to negate their whole argument that it's me doing it, you know what I mean?" During that same call, KJL gave specific instructions for a post on the "Justice for O" page that included pictures of ARM. MC testified and claimed that she was solely responsible for the "KW" Facebook posts. MC admitted that she discussed the Facebook posts with KJL but claimed that she never posted a message that KJL requested word-for-word.

KJL's attorney moved to dismiss at the conclusion of the hearing. As part of her response, the prosecutor clarified, "[A]t first the focus really was on pages eight through 12 [of Exhibit A], but through Defense Counsel's questioning he enlightened me that in fact there is a lot more violations than just those in the end of the document." The prosecutor then argued, in relevant part, that the information on page seven of the exhibit further established that KJL violated the PPO. KJL's attorney did not object or otherwise suggest that the trial court could not consider pages one to seven of Exhibit A. The trial court denied KJL's motion to dismiss and took the matter under advisement.

The trial court issued a written opinion and order. Relevant to this appeal, the trial court found as a factual matter that KJL was responsible for the Facebook posts from the "KW" profile because he either directly posted the comments or indirectly posted them in coordination with others. The trial court took note of the "ease" by which KJL spoke with people about making Facebook posts, and from this, the court drew the conclusion that such conversations were a regular occurrence. Even so, the trial court concluded that most of the complained-of Facebook posts were constitutionally protected speech. It was only with respect to a single post that KJL stepped over the line: "All while the mother [referring to ARM] who has never made an issue out of his [referring to KJL's] charges. The drug charge was a medical marijuana charge that he took so that the mother didn't get in trouble. Ask [ARM] ." The post tagged ARM, meaning that her name was spelled out and bold faced. With respect to this post, the trial court explained,

However, Exhibit A, p. 7, is also the only post which was a direct communication to [ARM]. [ARM] testified that she was "tagged" in the post, which means that, when her contact information was typed into the post, she received a notification that the post had been made. [ARM], by obtaining the PPO, had made it clear to [KJL] that she did not want communications from him. See Peterson [v. Peterson , unpublished per curiam opinion of the Court of Appeals, issued June 17, 2008 (Docket No. 283188), p. 5, 2008 WL 2439888 ]. "Tagging" [ARM] in the post violated [ARM's] constitutional "right to be left alone," and is not constitutionally protected speech. PLT [v. JBP , unpublished per curiam opinion of the Court of Appeals, issued Dec. 26, 2019 (Docket No. 346948), p. 4, 2019 WL 7206134 ]. Because the speech is not constitutionally protected, it is a violation of the PPO. [Opinion and Order Regarding Order to Show Cause of March 6, 2019, Against Respondent, issued June 16, 2020 (Case No. T 2016-0741), p. 18.]

The trial court had earlier concluded that KJL's conduct, including the offending tagged comment, would cause a reasonable person to feel harassed or molested and did, in fact, cause ARM to feel this way as well as emotionally distressed. Moreover, the trial court observed that the conduct was part of an "ongoing course of conduct" by KJL spanning several years, i.e., this was not a limited, one-off contact with ARM. Accordingly, the trial court found KJL guilty of violating the 2016 PPO for the tagged comment. KJL's appeal in Docket No. 357120 relates to this opinion and order.

With respect to the other two appeals (Docket Nos. 358858 and 358859), ARM obtained another PPO against KJL in August 2020, and the trial court sentenced KJL on several separate occasions for criminal contempt. The sentencing orders from June 22, 2021, and July 29, 2021, are at issue on appeal. The March 30, 2021 order sentenced...