People v. Herrera

• Decision Date: 22 March 1994
• Docket Number: Docket No. 169463
• Citation: 204 Mich.App. 333,514 N.W.2d 543
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Victoriano HERRERA, Defendant-Appellant, and Prison Legal Services of Michigan, Amicus Curiae. (On Remand)
• Court: Court of Appeal of Michigan — District of US

Page 543

514 N.W.2d 543

204 Mich.App. 333

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Victoriano HERRERA, Defendant-Appellant and Prison Legal Services of Michigan, Amicus Curiae. (On Remand)

Docket No. 169463.

Court of Appeals of Michigan.

Submitted Nov. 1, 1993, at Lansing.

Decided March 22, 1994, at 9:25 a.m.

Released for Publication April 27, 1994.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Michael D. Thomas, Pros. Atty., and Edwin R. Brown, Asst. Pros. Atty., for the People.

James Edward Jacobs, Frankenmuth, for defendant-appellant on appeal.

Sandra Girard, Jackson, for Prison Legal Services of Michigan, Inc., amicus curiae.

Before BRENNAN, P.J., and HOOD and TAYLOR, JJ.

PER CURIAM.

This case comes to us on remand from the Supreme Court.

Defendant appealed by leave granted from the trial court's order imposing sanctions upon him. In a prior opinion, we reluctantly followed Richmond Twp. v. Erbes, 195 Mich.App. 210, 225, 489 N.W.2d 504 (1992), which held that sanctions could not be imposed under MCR 2.114(E) for filing frivolous motions, and reversed. 199 Mich.App. 425, 427, 502 N.W.2d 347 (1993). However, in Bechtold v. Morris, 443 Mich. 105, 108-109, 503 N.W.2d 654 (1993), our Supreme Court effectively overruled Richmond Twp., holding that "sanctions can be imposed against a lawyer who files an improperly signed paper, even if it is not a pleading." The Supreme Court, in lieu of granting leave to appeal, vacated our judgment and remanded the case to this Court for reconsideration. 444 Mich. 864, 509 N.W.2d 155 (1993).

After reconsidering the merits of defendant's appeal, we vacate the trial court's decision and remand.

In the underlying proceeding, defendant was convicted of possession with intent to deliver between 50 and 225 grams of cocaine, M.C.L. § 333.7401(2)(a)(iii); M.S.A. § 14.15(7401)(2)(a)(iii), and between 225 and 650 grams of heroin, M.C.L. § 333.7401(2)(a)(ii); M.S.A. § 14.15(7401)(2)(a)(ii). He was sentenced to concurrent 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 The convictions were affirmed by this Court in an unpublished opinion per curiam, decided December 7, 1988 (Docket No. 100861). Leave to appeal was denied. 433 Mich. 919 (1989).

Defendant then filed a delayed motion requesting an evidentiary hearing regarding whether he had received effective assistance of counsel and also requesting a new trial or resentencing. That motion was denied. Defendant filed a motion for reconsideration that was also denied. He then filed a motion for relief from judgment that was, again, 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 fines, as opposed to costs, may be imposed under MCR 2.114(E);

II. If so, whether some form of due process is required before sanctions may be imposed;

III. Whether doctrines of preclusion such as res judicata, collateral estoppel, and the law of the case are relevant to the imposition of sanctions; and

IV. Whether, given the constitutional issues involved, sanctions are ever appropriate in criminal cases involving pro se defendants and, if so, whether a higher standard should apply to such cases.

We now turn to the merits of these issues, albeit not exactly in that order.

MCR 2.114(D) imposes various requirements of good faith and reasonable inquiry upon the signatories of legal pleadings. MCR 2.114(E) provides that, "[i]f a pleading is signed in violation of this rule, the court ... shall impose ... an appropriate sanction ... which may include an order to pay ... reasonable expenses incurred ... including reasonable attorney fees." Because the rule could be interpreted to allow the imposition of fines, it was amended on April 1, 1991, to resolve a split between panels of this Court and clarify that "[t]he court may not assess punitive damages." See MCR 2.114(E) and (F); see also 437 Mich. clxxvii (1991) (staff comment); Michigan Bell Telephone Co. v. Sfat, 177 Mich.App. 506, 514, 442 N.W.2d 720 (1989). We therefore vacate the trial court's order insofar as it requires defendant to pay a fine. However, because some sanction may nevertheless be permissible in this case, we address the remaining issues and remand to the trial court for reconsideration.

Normally, "the rules of civil procedure apply to [criminal cases] except (1) as otherwise provided by rule or statute, (2) when it clearly appears that they apply to civil actions only, or (3) when a statute or court rule provides a like or different procedure." MCR 6.001(D). Defendant argues that M.C.L. § 600.2591(1); M.S.A. § 27A.2591(1), which is incorporated into the court rules by MCR 2.114(F) and MCR 2.625(A)(2), controls here because it explicitly provides that sanctions may be imposed only in civil cases. We disagree.

First, the subsections noted by defendant apply where a frivolous claim is submitted. Here, the issue is a frivolous pleading. Second, MCR 2.114(F) explicitly states that sanctions under MCR 2.625(A)(2) and, by reference, under M.C.L. § 600.2591(1); M.S.A. § 27A.2591(1), apply "[i]n addition to sanctions under" other provisions of MCR 2.114. (Emphasis added.) Thus, although M.C.L. § 600.2591(1); M.S.A. § 27A.2591(1) admittedly applies only to civil cases, the question remains whether sanctions may be imposed in criminal cases under MCR 2.114(E).

It is clear from the language of MCR 2.114(B), (D), and (E) that sanctions may be imposed upon unrepresented parties who sign their own pleadings as well as on attorneys and even represented parties. However, because defendant is a prisoner who proceeded in propria persona, he had a constitutional right of access to the courts and a constitutionally protected liberty interest that demand further scrutiny before sanctions may be imposed. See Bounds v. Smith, 430 U.S. 817, 821-823, 97 S.Ct. 1491, 1494-1496, 52 L.Ed.2d 72 (1977); see also In re Doyle, 839 F.2d 865, 867 (C.A.1 1988) (acknowledging that the defendant's appeal was meritless but denying the government's request for sanctions in view of the liberty interest at stake). In this regard, we find federal habeas corpus cases instructive because, although technically civil proceedings, they involve the same constitutional issues.

Sanctions such as filing limits, refusals to waive fees, dismissals, and awards of costs may interfere with the right of access to the courts and with the ability to assert constitutionally protected liberty interests. Therefore, they may not be imposed upon pro se prisoner litigants without first affording them rudimentary due process. See Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972); Mathews v. Eldridge, 424 U.S. 319, 334-335, 96 S.Ct. 893, 902-903, 47 L.Ed.2d 18 (1976). At a minimum, such due process must include notice, an opportunity to be heard, and a determination of ability to pay. See Miranda v. Southern Pacific Transportation Co., 710 F.2d 516, 522 (C.A.9 1983); Cotner v. Hopkins, 795 F.2d 900, 902-903 (C.A.10 1986). In this case, therefore, the fact that defendant admittedly received no notice, no hearing, and no determination of ability to pay would have been an independent basis for reversal.

We agree with federal decisions construing F.R.Civ.P. 11, that, because of the constitutional issues involved, a prisoner's pro se pleadings are held to a less stringent standard in determining whether there has been a violation warranting sanctions. See Thomas v. Evans, 880 F.2d 1235, 1240 (C.A.11 1989); see also Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652 (1972) (reversing dismissal of prisoner's pro se civil action challenging certain internal discipline). Sanctions are appropriate only when the pleading is unreasonable under all the circumstances existing at the time of the filing, including the prisoner's pro se status. Thomas, supra at 1240. Sanctions are not appropriate merely because the prisoner's view of the law may happen to be incorrect. Id.

In determining the reasonableness of defendant's pleadings, the doctrines of res judicata and collateral estoppel--which would bar relitigation in a separate proceeding of all issues that were or could have been decided in the context of the main action, that is, in the context of defendant's appeal from his criminal conviction--are inapplicable because this case does not involve a separate action but rather a motion for relief from judgment. ¹ Cf. id. (pro se prisoner may be sanctioned for filing collateral civil claims barred by res judicata). Instead, the...