People of Michigan v. Octavius Martez Hall

Court of Appeals, State of Michigan

ORDER

Mark T. Boonstra

People of MI v Octavius Martez Hall Presiding Judge

Docket No. 348467 Mark J. Cavanagh

LC No. 18-001384-01-FC Stephen L. Borrello

Judges

The motion for reconsideration is GRANTED, and this Court's opinion issued

November 19, 2020 is hereby VACATED. A new opinion is attached to this order.

_______________________________

Presiding Judge

January 14, 2021

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to

revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED

January 14, 2021

Plaintiff-Appellee,

v No. 348467

Wayne Circuit Court

OCTAVIUS MARTEZ HALL, LC No. 18-001384-01-FC

Defendant-Appellant.

ON RECONSIDERATION

Before: BOONSTRA, P.J., and CAVANAGH and BORRELLO, JJ.

PER CURIAM.

Defendant appeals as of right his jury trial convictions of intentionally discharging a

firearm from a motor vehicle causing serious impairment, MCL 750.234a(1)(c), assault with intent

to do great bodily harm, MCL 750.84, carrying a concealed weapon, MCL 750.227, and two counts

of possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b.

Defendant was sentenced, as a second-offense habitual offender, MCL 769.10, to 10 to 30 years’

imprisonment for the intentionally discharging a firearm from a motor vehicle causing serious

impairment conviction, 7 to 15 years’ imprisonment for the assault with intent to do great bodily

harm conviction, 3 to 7½ years’ imprisonment for the carrying a concealed weapon conviction,

and two years’ imprisonment for each of the felony-firearm convictions. We reverse defendant’s

conviction and sentence for discharging a firearm from a motor vehicle causing serious impairment

and the associated felony-firearm conviction and sentence, remand for a new trial on those charges,

and affirm defendant’s remaining convictions and sentences.

This case arises out of an April 10, 2016 incident in which defendant shot Leon McCray

multiple times in Detroit, Michigan. After being convicted and sentenced in the manner described

above, defendant commenced the instant appeal.

Defendant first argues that he was denied his right to a speedy trial. We disagree.

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“The determination whether a defendant was denied a speedy trial is a mixed question of

fact and law. The factual findings are reviewed for clear error, while the constitutional issue is a

question of law subject to review de novo.” People v Waclawski, 286 Mich App 634, 664; 780

NW2d 321 (2009) (citations omitted).

“[A] defendant’s right to a speedy trial is guaranteed by the United States and Michigan

Constitutions.” People v Rivera, 301 Mich App 188, 193; 835 NW2d 464 (2013), citing US Const,

Am VI; Const 1963, art 1, § 20. See also MCL 768.1 (codifying the right to a speedy trial). No

fixed number of days of delay exists after which the right to a speedy trial is violated. People v

Williams, 475 Mich 245, 261; 716 NW2d 208 (2006). “Whether an accused’s right to a speedy

trial is violated depends on consideration of four factors: (1) the length of delay, (2) the reason for

delay, (3) the defendant’s assertion of the right, and (4) the prejudice to the defendant.” Rivera,

301 Mich App at 193 (quotation marks and citation omitted). “Following a delay of eighteen

months or more, prejudice is presumed, and the burden shifts to the prosecution to show that there

was no injury.” Williams, 475 Mich at 262. “[A] presumptively prejudicial delay triggers an

inquiry into the other factors to be considered in the balancing of the competing interests to

determine whether a defendant has been deprived of the right to a speedy trial.” Id. (quotation

marks and citation omitted). Delays that inhere in the court system, such as docket congestion,

are technically attributable to the prosecution but are given a neutral tint and assigned only minimal

weight in determining whether a speedy trial violation occurred. Id. at 263.

At a motion hearing on May 4, 2018, the trial court provided a timeline of relevant events

and set forth its reasons for rejecting defendant’s claim of a speedy trial violation.1 The trial court

noted that defendant was arraigned on the original warrant in April 2016 and that a preliminary

examination was held on April 27, 2016. An arraignment on the information was held on May 4,

2016. Trial was originally scheduled for September 12, 2016. On August 30, 2016, defense

counsel moved to adjourn the September 12, 2016 trial date because the prosecution had allegedly

failed to produce certain discovery materials. A new trial date was scheduled for March 6, 2017.

On December 9, 2016, a pretrial conference was adjourned at the request of the defense, and the

pretrial conference was not held until February 28, 2017. The March 6, 2017 trial date was

adjourned at the request of the defense until June 26, 2017. When prosecution witnesses failed to

1

Defendant appended no documentation to his motion to dismiss or to his brief on appeal

regarding the timeline of events, even though many of the relevant events occurred in an earlier

lower court file, Wayne Circuit Court Docket No. 16-003512-02-FC, that is not part of the

instant lower court file (due to the fact that the original charges were dismissed when the

prosecution’s civilian witnesses failed to appear for the scheduled trial in June 2017 and the

charges were then refiled in the instant action). In any event, the prosecutor has provided, both

below and on appeal, the registers of actions for the prior lower court file and the instant lower

court file, and, in the trial court’s ruling from the bench, the trial court provided, from the

registers of actions as well as the trial court’s own files and records, a summary of the relevant

events as summarized herein. It is well settled that a trial court may take judicial notice of its

own files and records, In re Jones, 286 Mich App 126, 129; 777 NW2d 728 (2009), and

defendant has provided nothing to suggest that the trial court’s summary of relevant events was

inaccurate.

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appear for trial on June 26, 2017, the trial court granted defendant’s motion to dismiss without

prejudice. At the time of dismissal, the prosecution indicated that it intended to refile the charges.

While the proceedings in the earlier action and the instant action were pending, and as of the date

of the trial court’s May 4, 2018 decision on defendant’s speedy trial claim, defendant was

incarcerated on an unrelated matter with the Department of Corrections, with an earliest release

date of January 9, 2019. The warrant in the instant action was filed on June 28, 2017, and defendant

was arraigned on the warrant on January 17, 2018. The preliminary examination was originally

scheduled for January 30, 2018, but it was adjourned at the request of the defense until February

13, 2018; on that later date, the preliminary examination was commenced and then continued on

February 22, 2018.

The trial court then summarized pertinent caselaw regarding the right to a speedy trial and

the four factors to be considered, which were set forth earlier in this opinion. The trial court noted

that the length of the delay was 23 months, with approximately seven months of the delay

attributable to the defense and 16 months attributable to the prosecution. The court noted that a

delay in excess of 18 months creates a presumption of prejudice and that the prosecution bears the

burden of showing that no injury occurred. Based on its review of the register of actions for the

prior lower court file, the trial court questioned whether the adjournment of the September 12,

2016 trial date was attributable to the prosecution, given that the defense moved for the

adjournment. Anyway, the length of the delay was insufficient by itself to require a dismissal.

The delay in arraigning defendant on the new warrant was not malicious, and the prosecutor’s

negligence as well as docket congestion were neutral reasons that should be given minimal weight.

Defendant did not assert his right to a speedy trial until the preliminary examination in February

2018 and the filing of his speedy trial motion in March 2018. Defendant’s failure to assert his

speedy trial right earlier weighed against a finding of a speedy trial violation. Defendant was not

prejudiced by the delay in this case. Defendant was incarcerated on unrelated convictions during

the delay in the arraignment on the new warrant, and there was no prejudice to his defense.

Defendant’s motion to dismiss the case was thus denied.

Defendant argues that the trial court erred in concluding that there was no violation of

defendant’s right to a speedy trial. We disagree.

The first factor to consider in determining whether a speedy trial violation occurred is the

length of the delay. The parties agree that the relevant delay was 23 months. 2 As the prosecutor

2

Defendant’s appellate argument focuses on the 23-month delay that was the focus of his motion

to dismiss. Because defendant’s trial did not occur until February 2019, the delay was actually

greater than 23 months, but defendant’s appellate argument only focuses on the delay up until the

time of defendant’s speedy trial motion. Defendant does not argue that his right to a speedy trial

was violated by the additional delay after the denial of his speedy trial motion, nor did he renew

his speedy trial claim below on the basis of such additional delay of the trial. Moreover, it

appears that most of the delay after the May 4, 2018 denial of defendant’s speedy trial motion is

attributable to the defense, and defendant waived any speedy trial claim for much of that period.

At the May 4, 2018 hearing, after the trial court denied defendant’s speedy trial motion,

defendant’s retained counsel, Henry Scharg, said that he was unavailable for a trial until

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concedes, because the delay exceeded 18 months, prejudice is presumed, the burden shifts to the

prosecution to show the absence of any injury, and an inquiry is required into the other factors

used to determine whether a speedy trial violation occurred. See Williams, 475 Mich at 262.

The second factor is the reasons for the delay. The trial court exhaustively reviewed its

own files and records as well as the registers of actions for both the prior action and this action.

The court noted that various adjournments had been requested by the defense and ultimately

concluded that seven months of the 23-month delay were attributable to the defense and that 16

months of the delay were attributable to the prosecution.3 Although there was a lengthy delay

between the filing of the new warrant on June 28, 2017, and the arraignment on that warrant on

January 17, 2018, the trial court aptly noted that there was no indication that this delay was

attributable to any deliberate effort by the prosecution to delay the trial. Rather, it appears that this

delay was due to prosecutorial negligence, which is viewed with a neutral tint and should not be

weighed heavily. See Barker v Wingo, 407 US 514, 531; 92 S Ct 2182; 33 L Ed 2d 101 (1972).

The third factor is the assertion of the right to a speedy trial. The prosecution concedes

that defendant asserted his speedy trial right at the preliminary examination in February 2018 and

when he filed in the circuit court his motion to dismiss the case premised on a speedy trial violation

in March 2018. Although defendant asserted his speedy trial right at those points, the trial court

was correct to note that defendant did not assert his speedy trial right earlier in the proceedings. A

defendant’s failure to timely assert the right weighs against a finding that a speedy trial violation

September 2018 because he had a major trial in federal court over the summer of 2018. Trial in

this case was thus scheduled for October 9, 2018. At a hearing on September 21, 2018, Scharg

asked for permission to withdraw from the case for reasons that he did not want to state on the

record. Defendant stated that he had no objection to Scharg’s request to withdraw from the case.

Defendant said that he would be unable to retain a new attorney and would thus need appointed

counsel. Defendant expressed his understanding that it would be difficult for a new attorney to

prepare for the scheduled trial date of October 9, 2018. Scharg said that he had conferred with

defendant on the matter and that defendant would waive any speedy trial claim for the period of

delay between the October 9, 2018 scheduled trial date and any new trial date that the trial court

would set. The trial court thus allowed Scharg to withdraw. At a special pretrial hearing on

September 25, 2018, the trial court announced that Robert Kinney had been appointed as

defendant’s new counsel, and the court adjourned the October 9, 2018 trial date so that Kinney

could have time to prepare.

3

Defendant suggests that the trial court erred in attributing seven months of the delay to the

defense; defendant reasons that the defense requests for adjournments were due to the

prosecutor’s failure to turn over discovery materials. But defendant has provided no

documentation from the prior lower court file to support this reasoning. Anyway, even if the

trial court somehow erred in attributing some of the delay to the defense, it does not affect the

ultimate determination that defendant’s right to a speedy trial was not violated. As explained

later, the most important consideration in this case is that defendant was not prejudiced by the

23-month delay. This Court will affirm a trial court’s decision that reaches the correct result for

the wrong reason. People v McLaughlin, 258 Mich App 635, 652 n 7; 672 NW2d 860 (2003).

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occurred. People v Wickham, 200 Mich App 106, 112; 503 NW2d 701 (1993). Defendant alludes

to the possibility that he lacked notice that the new warrant had been filed until he was arraigned

on that warrant in January 2018, but the prosecution had expressed its intent to refile the charges

when the earlier action was dismissed in June 2017. In any event, this factor does not weigh

heavily in either direction and is not dispositive of whether a speedy trial violation occurred here.

The final factor is whether defendant was prejudiced by the delay. “There are two types

of prejudice which a defendant may experience, that is, prejudice to his person and prejudice to

the defense.” Williams, 475 Mich at 264 (quotation marks and citation omitted). “Prejudice to the

defense is the more serious concern, because the inability of a defendant adequately to prepare his

case skews the fairness of the entire system.” Id. (quotation marks and citations omitted). See

also People v Simpson, 207 Mich App 560, 564; 526 NW2d 33 (1994) (“The length of delay is

insufficient in and of itself to require dismissal. In considering the prejudice to the defendant, the

most serious inquiry is whether the delay has impaired the defendant’s defense.”) (citation

omitted). Defendant suffered no prejudice to his person. He was incarcerated on an unrelated

matter during the relevant period of delay.4 Nor has defendant suffered any prejudice to his

defense. Defendant has not alleged that any exculpatory evidence has been lost or destroyed or

that any defense witnesses have become unavailable as a result of the delay. The lack of prejudice

to the defense weighs heavily against a speedy trial violation, even when the delay is long. See

Williams, 475 Mich at 263-264; People v Chism, 390 Mich 104, 115-116; 211 NW2d 193 (1973).

Overall, we agree with the trial court’s decision. Consideration and balancing of the

various factors lead to the conclusion that defendant’s right to a speedy trial was not violated.

Defendant next argues that the trial court committed an instructional error by omitting from

the final jury instructions an element of the offense of intentionally discharging a firearm from a

motor vehicle causing serious impairment. Defendant also argues that defense counsel was

ineffective for agreeing to the trial court’s flawed instruction. Although the instructional issue

itself is waived, we agree with defendant that he was denied the effective assistance of counsel

with respect to this issue.

“A party must object or request a given jury instruction to preserve the error for review.”

People v Sabin (On Second Remand), 242 Mich App 656, 657; 620 NW2d 19 (2000). Defendant

did not object to the instruction on the offense of intentionally discharging a firearm from a motor

vehicle causing serious impairment. Therefore, the instructional issue is unpreserved.

4

Defendant cursorily suggests that he was denied the ability to participate in unspecified

programs in the Department of Corrections because of the pending charges, but this contention

has been supported by nothing more than defense counsel’s bare assertion in the trial court.

Moreover, defendant cites no authority holding that the inability to participate in a program in a

correctional facility constitutes prejudice to a defendant’s person for the purpose of a speedy trial

claim. “An appellant may not merely announce his position and leave it to this Court to discover

and rationalize the basis for his claims, nor may he give only cursory treatment with little or no

citation of supporting authority.” People v Kelly, 231 Mich App 627, 640-641; 588 NW2d 480

(1998).

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Moreover, defendant did not merely fail to object to the instruction; his trial attorney

affirmatively approved of the trial court’s instructions. After the trial court provided its final

instructions to the jury, including the instruction challenged on appeal, the trial court asked the

attorneys if there were any objections to the instructions that were given, and defense counsel

responded that he did not have any objections. By expressly approving the jury instructions,

defendant waived review of the alleged instructional error. See People v Kowalski, 489 Mich 488,

503-505; 803 NW2d 200 (2011). Waiver extinguishes any error, meaning that there is no error to

review. Id. Although the instructional issue itself is waived, we will consider the underlying issue

in the context of defendant’s claim of ineffective assistance of counsel with respect to the failure

to object to the instruction.

To preserve a claim of ineffective assistance of counsel, a defendant must raise the issue

in a motion for a new trial or a Ginther5 hearing. People v Foster, 319 Mich App 365, 390; 901

NW2d 127 (2017). Defendant did not raise this issue in a motion for a new trial or a Ginther

hearing. Hence, the ineffective assistance of counsel issue is unpreserved.

Generally, claims of instructional error involving a question of law are reviewed de novo.

People v Dupree, 486 Mich 693, 702; 788 NW2d 399 (2010). Whether a defendant was denied

the effective assistance of counsel presents a mixed question of fact and constitutional law. People

v Heft, 299 Mich App 69, 80; 829 NW2d 266 (2012). Findings of fact are reviewed for clear error,

and questions of law are reviewed de novo. Id. Because defendant failed to move for a new trial

or request a Ginther hearing on this issue, this Court’s review is limited to mistakes apparent on

the record. Foster, 319 Mich App at 390.

As explained above, the instructional issue itself is waived. Nonetheless, defendant argues

that he was denied the effective assistance of counsel when defense counsel failed to object and

expressly approved the flawed instruction on intentionally discharging a firearm from a motor

vehicle causing serious impairment. The prosecutor concedes that defendant is entitled to relief

on the basis of ineffective assistance of counsel. We agree.

“To prove that his defense counsel was not effective, the defendant must show that (1)

defense counsel’s performance fell below an objective standard of reasonableness and (2) there is

a reasonable probability that counsel’s deficient performance prejudiced the defendant.” People v

Lane, 308 Mich App 38, 68; 862 NW2d 446 (2014). “Effective assistance of counsel is presumed,

and the defendant bears a heavy burden of proving otherwise.” People v Head, 323 Mich App

526, 539; 917 NW2d 752 (2018) (quotation marks, brackets, and citation omitted). Defense

counsel is afforded wide discretion on matters of trial strategy, People v Dunigan, 299 Mich App

579, 584; 831 NW2d 243 (2013), and the defendant must overcome the strong presumption that

defense counsel’s performance constituted sound trial strategy, People v Matuszak, 263 Mich App

42, 58; 687 NW2d 342 (2004). To establish prejudice, the defendant must demonstrate “a

reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different. A reasonable probability is a probability sufficient to undermine

5

People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).

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confidence in the outcome.” People v Randolph, 502 Mich 1, 9; 917 NW2d 249 (2018) (quotation

marks and citation omitted).

“A criminal defendant has a constitutional right to have a jury determine his or her guilt

from its consideration of every essential element of the charged offense. A defendant is thus

entitled to have all the elements of the crime submitted to the jury in a charge which is neither

erroneous nor misleading.” Kowalski, 489 Mich at 501 (quotation marks, brackets, ellipsis, and

citations omitted).

Defendant was charged with, and convicted of, intentionally discharging a firearm from a

motor vehicle causing serious impairment, which is set forth in MCL 750.234a(1)(c). MCL

750.234a(1) provides:

(1) An individual who intentionally discharges a firearm from a motor vehicle, a

snowmobile, or an off-road vehicle is guilty of a crime as follows:

(a) If the violation endangers the safety of another individual, the individual is

guilty of a felony punishable by imprisonment for not more than 10 years or a fine

of not more than $10,000.00, or both.

(b) If the violation causes any physical injury to another individual, the individual

is guilty of a felony punishable by imprisonment for not more than 15 years or a

fine of not more than $15,000.00, or both.

(c) If the violation causes the serious impairment of a body function of another

individual, the individual is guilty of a felony punishable by imprisonment for not

more than 20 years or a fine of not more than $25,000.00, or both.

MCL 750.234a(5)(b) provides, “ ‘Serious impairment of a body function’ means that term as

defined in section 58c of the Michigan vehicle code, 1949 PA 300, MCL 257.58c.” MCL 257.58c

states:

“Serious impairment of a body function” includes, but is not limited to, 1 or more

of the following:

(a) Loss of a limb or loss of use of a limb.

(b) Loss of a foot, hand, finger, or thumb or loss of use of a foot, hand, finger, or

thumb.

(c) Loss of an eye or ear or loss of use of an eye or ear.

(d) Loss or substantial impairment of a bodily function.

(e) Serious visible disfigurement.

(f) A comatose state that lasts for more than 3 days.

(g) Measurable brain or mental impairment.

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(h) A skull fracture or other serious bone fracture.

(i) Subdural hemorrhage or subdural hematoma.

(j) Loss of an organ.

The trial court instructed the jury as follows regarding the elements of this offense:

The Defendant is charged with intentionally discharging a firearm from a

motor vehicle. To prove this charge the prosecutor must prove each of the

following elements beyond a reasonable doubt.

First, that the Defendant discharged a firearm. Second, that he did so

intentionally, that is on purpose. Third, that he did so from a motor vehicle. Fourth,

that he discharged the firearm in a way that caused the physical injury to Leon

McCray.

The trial court failed to instruct the jury that defendant must have discharged the firearm in a way

that caused a serious impairment of a body function, and the court failed to instruct the jury on the

definition of a serious impairment of a body function. Rather, the court instructed the jury that the

violation need only have caused a physical injury to McCray. The trial court thus omitted an

essential element of the offense with which defendant was charged and of which he was convicted.

Defense counsel’s failure to object to this flawed instruction, and his affirmative approval of the

instruction, fell below an objective standard of reasonableness. There was no reasonable strategic

basis to fail to object or to approve an instruction that omitted an essential element of the offense.

Moreover, defendant was prejudiced by defense counsel’s deficient performance.

Although McCray was shot in three parts of his body, there was a lot of blood at the scene, and he

was taken to the hospital, there was not overwhelming evidence at trial that his condition qualifies

as a serious impairment of a body function under the statutory definition. But for counsel’s

unprofessional error, there is a reasonable probability of a different result, i.e., a probability

sufficient to undermine confidence in the outcome. See Randolph, 502 Mich at 9. Defendant is

thus entitled to a new trial with respect to his conviction of intentionally discharging a firearm

from a motor vehicle causing serious impairment as well as the associated felony-firearm

conviction.6

6

When instructing the jury on the associated felony-firearm charge, the trial court referred to its

earlier erroneous instruction on the predicate offense.

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Defendant also challenges the scoring of Prior Record Variables (PRV) 2 and 5, as well as

Offense Variables (OV) 3 and 4. While these arguments are moot as to defendant’s sentence for

his conviction of intentionally discharging a firearm from a motor vehicle causing serious

impairment, the scoring issues are relevant to the sentences for the remaining convictions. As the

prosecutor conceded, PRV 2 and 5 were incorrectly scored. The total PRV score should have been

60, resulting in PRV Level E—not 95 and resulting in PRV Level F. Therefore, the errors changed

the sentencing guidelines range for the remaining convictions.

However, we reject defendant’s arguments as to the scoring of OVs 3 and 4, which were

correctly scored at 25 points and 10 points, respectively, for a total OV score of 65, resulting in

OV Level V.

OV 3 pertains to physical injury to a victim. MCL 777.33(1). An assessment of 25 points

is required if the victim suffered a life-threatening or permanently incapacitating injury. MCL

777.33(1)(c). The trial court determined that an assessment of 25 points was warranted because

McCray suffered three gunshot wounds and had to undergo surgery, which was sufficient to

conclude that he suffered a life-threatening injury. Injuries are considered life-threatening if they

were, in the normal course, potentially fatal. People v Chaney, 327 Mich App 586, 590-591; 935

NW2d 66 (2019). McCray was shot three times, bled heavily, and was rushed to the hospital for

emergency treatment, including surgery. McCray’s victim impact statement indicated that he had

been unable to return to work because of the gunshot wound to his arm. Being shot in three parts

of one’s body, necessitating emergency hospitalization and surgery, is potentially fatal. The trial

court did not clearly err in finding by a preponderance of the evidence that McCray’s injuries were

life-threatening. See People v Hardy, 494 Mich 430, 438; 835 NW2d 340 (2013) (citations

omitted), superseded by statute in part on other grounds as stated in People v Rodriguez, 327 Mich

App 573, 579 n 3; 935 NW2d 51 (2019).

OV 4 concerns psychological injury to a victim. MCL 777.34(1). An assessment of 10

points is required for a serious psychological injury requiring professional treatment. MCL

777.34(1)(a). An assessment of 0 points is required if there was no serious psychological injury

requiring professional treatment. MCL 777.34(1)(c). MCL 777.34(2) provides, “Score 10 points

if the serious psychological injury may require professional treatment. In making this

determination, the fact that treatment has not been sought is not conclusive.” “The trial court may

rely on reasonable inferences arising from the record evidence to sustain the scoring of an offense

variable.” People v Earl, 297 Mich App 104, 109; 822 NW2d 271 (2012), aff’d 495 Mich 33

(2014). The trial court assessed 10 points for OV 4. The trial court relied on McCray’s impact

statement that he was already in counseling for other issues and this event apparently compounded

those issues. Further, McCray testified at trial that he was panicking on the way to the hospital;

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he was in fear for his life because he saw a lot of blood and did not know where he had been shot.

Considering all of the evidence and reasonable inferences, the trial court did not clearly err in

finding by a preponderance of the evidence that McCray suffered a serious psychological injury

requiring professional treatment. See Hardy, 494 Mich at 438.

Accordingly, because the scoring errors as to PRV 2 and 5 affected the minimum

sentencing guidelines range for the remaining convictions, resentencing as to those convictions is

required. See People v Francisco, 474 Mich 82, 89-92; 711 NW2d 44 (2006).

Affirmed in part, reversed in part, and remanded for further proceedings consistent with

this opinion. We do not retain jurisdiction.

/s/ Mark T. Boonstra

/s/ Mark J. Cavanagh

/s/ Stephen L. Borrello

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