Opinion
Docket No. 125395.
Submitted March 9, 1993, at Lansing.
Decided April 20, 1993, at 9:10 A.M. Leave to appeal sought.
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Michael D. Thomas, Prosecuting Attorney, and Laura A. Vargas, Assistant Prosecuting Attorney, for the people.
James Edward Jacobs, for the defendant on appeal.
Amicus Curiae:
Sandra Girard, for Prison Legal Services of Michigan, Inc.
Before: BRENNAN, P.J., and HOOD and TAYLOR, JJ.
Defendant appeals by leave granted from the trial court's order imposing sanctions upon him. We reverse.
Defendant had been convicted by a jury of possession with intent to deliver between 50 and 225 grams of cocaine, MCL 333.7401(2)(a)(iii); MSA 14.15(7401)(2)(a)(iii), and between 225 and 650 grams of heroin, MCL 333.7401(2)(a)(ii), MSA 14.15 (7401)(2)(a)(ii). He was sentenced to concurrent prison terms of ten to twenty and twenty to thirty years, respectively. The convictions were affirmed by this Court in an unpublished opinion per curiam, decided December 7, 1988 (Docket No. 100861). The Supreme Court denied leave to appeal. 432 Mich. 919 (1989).
Defendant then filed a motion requesting an evidentiary hearing regarding ineffective assistance of counsel and also requesting a new trial or resentencing. That motion was denied. Defendant filed a motion for reconsideration, which was also denied. He then filed a motion for relief from judgment, which was denied. The trial court then found that defendant's last motion was frivolous under MCR 2.114(E) and fined him $150 payable to the court.
In granting leave to appeal, this Court ordered the parties to brief the following issues:
I. Whether sanctions are ever appropriate in a post-conviction criminal case where a prisoner asserts a liberty interest in pro per and, if so, whether the threshold for imposing such sanctions is higher than in other cases.
II. Whether MCR 2.114(E) allows the imposition of fines payable to the court and, if so, what process is due.
III. Whether doctrines of preclusion such as the law of the case can form the basis for imposing sanctions in a criminal case such as this one.
Discussion of these issues has been made unnecessary, however, by a relatively recent decision of this Court that holds that motions are not "pleadings" within the meaning of MCR 2.114(E) and that, therefore, sanctions may not be imposed for filing frivolous motions. See Richmond Twp v Erbes, 195 Mich. App. 210, 225; 489 N.W.2d 504 (1992) (relying on MCR 2.110[A]); see also Warden v Fenton Lanes, Inc, 197 Mich. App. 618; 495 N.W.2d 849 (1992). We agree with the Warden panel that the Richmond case was erroneously decided because, under MCR 2.113(A), a motion is a "pleading" for purposes of rules such as MCR 2.114, which cover signature and verification requirements. However, pursuant to Administrative Order No. 1990-6, 436 Mich lxxxiv and Administrative Order No. 1992-8, 441 Mich lii, we are constrained to follow Richmond until it is reversed. We do not otherwise express an opinion regarding the merits of defendant's appeal.
Reversed.