Sullivan v. State

Decision Date07 May 2019
Docket NumberNo. 343018,343018
Citation935 N.W.2d 413,328 Mich.App. 74
Parties Donald SULLIVAN, Jr., Plaintiff-Appellant, v. STATE of Michigan, Defendant-Appellee.
CourtCourt of Appeal of Michigan — District of US

Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, and Garett L. Koger, Assistant Attorney General, for the state of Michigan.

Martin S. Baum, PC (by Martin S. Baum, Bloomfield Hills) for Donald Sullivan, Jr.

Before: Swartzle, P.J., and Cavanagh and Cameron, JJ.

Cameron, J. Plaintiff, Donald Sullivan, Jr., filed this lawsuit for compensation based on the Wrongful Imprisonment Compensation Act (WICA), MCL 691.1751 et seq. , after his murder conviction was vacated and the charges against him were dismissed. Sullivan appeals the order of the Court of Claims granting summary disposition in favor of defendant, the state of Michigan, and dismissing Sullivan’s case. On appeal, Sullivan challenges the Court of Claims’ determination that he was not entitled to compensation under the WICA because he failed to show "new evidence" that satisfied the requirements of MCL 691.1755(1)(c). Finding no error, we affirm.


In 1975, Sullivan was sentenced to life in prison after a jury convicted him of first-degree felony murder for his role in the robbery of a jewelry store and the death of its owner. A codefendant, Lawrence Patton, entered into a plea agreement with the prosecution and provided trial testimony that was the primary evidence used to support Sullivan’s conviction.

Several years later, Patton recanted his trial testimony. He executed two affidavits in 1981, admitting in both that he lied about Sullivan’s involvement in the robbery and murder of the jewelry store owner. In December 1981, Sullivan moved for a new trial on the basis of Patton’s recantation. In support of his motion, Sullivan provided Patton’s two affidavits. The trial court granted an evidentiary hearing at which Patton testified, authenticated his affidavits, and reiterated that the trial testimony he offered against Sullivan was false. The prosecution questioned Patton’s veracity and succeeded in having Patton be given a polygraph examination administered by the Michigan State Police regarding the truthfulness of his recantation. During the polygraph examination, Patton reaffirmed that Sullivan was not involved in the crimes. In the opinion of the examiner, the test results indicated that Patton was not deceptive in his exoneration of Sullivan.1 Thereafter, the trial court granted Sullivan’s motion for a new trial.

The prosecution, apparently unpersuaded of Sullivan’s innocence, took steps to prosecute Sullivan again for the robbery and murder. However, after the trial court denied the prosecution’s motion to use Patton’s prior trial testimony as evidence against Sullivan at his retrial, the prosecution conceded that "[w]ithout the use of [Patton’s] previous testimony from the previous trial, we cannot proceed at this time in this case." Accordingly, the trial court dismissed the charges against Sullivan, and he was released from custody.

In September 2017, Sullivan filed a WICA complaint seeking compensation for the approximately seven years that he was imprisoned. The Court of Claims granted the state of Michigan’s motion for summary disposition and, in turn, denied Sullivan’s cross-motion for summary disposition. In doing so, the Court of Claims concluded that Sullivan failed to prove by clear and convincing evidence that there existed "new evidence" that demonstrated that he did not perpetrate the crime, that resulted in the reversal or vacation of his convictions, and that ultimately resulted in dismissal of the charges. MCL 691.1755(1)(c).


On appeal, Sullivan argues that the Court of Claims erred when it granted the state of Michigan’s motion for summary disposition and denied Sullivan’s cross-motion for summary disposition. We disagree.

We initially note that the state of Michigan filed its motion for summary disposition under MCR 2.116(C)(7), and Sullivan claimed that he was entitled to summary disposition under MCR 2.116(I)(2). The Court of Claims, however, specified in its order that summary disposition was granted under MCR 2.116(C)(8) and (C)(10). Importantly, a tort action against a governmental entity generally raises two issues: (1) whether the plaintiff has pleaded in avoidance of governmental immunity, and (2) whether the plaintiff can establish the elements of his or her claim. Glancy v. Roseville , 457 Mich. 580, 588, 577 N.W.2d 897 (1998). We do not construe the state of Michigan’s motion as one brought under MCR 2.116(C)(7) because Sullivan’s claim concerns whether he can establish the elements under the WICA. "A trial court is not necessarily constrained by the subrule under which a party moves for summary disposition." Computer Network, Inc. v. AM Gen. Corp. , 265 Mich. App. 309, 312, 696 N.W.2d 49 (2005). Furthermore, because the Court of Claims ruled on the motions for summary disposition before the commencement of discovery, we believe it is appropriate to analyze the motions on the basis of the pleadings alone and review them under MCR 2.116(C)(8). See id.

A trial court’s decision regarding a motion for summary disposition is reviewed de novo. Old Kent Bank v. Kal Kustom Enterprises , 255 Mich. App. 524, 528, 660 N.W.2d 384 (2003). "A motion brought under [ MCR 2.116(C)(8) ] tests the legal sufficiency of the complaint solely on the basis of the pleadings." Dalley v. Dykema Gossett PLLC , 287 Mich. App. 296, 304, 788 N.W.2d 679 (2010). "When deciding a motion under (C)(8), this Court accepts all well-pleaded factual allegations as true and construes them in the light most favorable to the nonmoving party." Id . at 304-305, 788 N.W.2d 679.

We also review de novo issues of statutory interpretation. In re Mich. Cable Telecom. Ass’n Complaint , 239 Mich. App. 686, 690, 609 N.W.2d 854 (2000). When interpreting a statute, our goal "is to ascertain and give effect to the intent of the Legislature." Portelli v. I.R. Constr. Prod. Co., Inc. , 218 Mich. App. 591, 606, 554 N.W.2d 591 (1996). "Undefined statutory terms must be given their plain and ordinary meanings, and it is proper to consult a dictionary for definitions." Halloran v. Bhan , 470 Mich. 572, 578, 683 N.W.2d 129 (2004). This Court must avoid interpreting a statute in a way that would make any part of it meaningless or nugatory. Sweatt v. Dep’t of Corrections , 468 Mich. 172, 183, 661 N.W.2d 201 (2003).

To prevail on a claim under the WICA, a plaintiff must prove by clear and convincing evidence all of the following:

(a) The plaintiff was convicted of 1 or more crimes under the law of this state, was sentenced to a term of imprisonment in a state correctional facility for the crime or crimes, and served at least part of the sentence.
(b) The plaintiff’s judgment of conviction was reversed or vacated and either the charges were dismissed or the plaintiff was determined on retrial to be not guilty. However, the plaintiff is not entitled to compensation under this act if the plaintiff was convicted of another criminal offense arising from the same transaction and either that offense was not dismissed or the plaintiff was convicted of that offense on retrial.
(c) New evidence demonstrates that the plaintiff did not perpetrate the crime and was not an accomplice or accessory to the acts that were the basis of the conviction, results in the reversal or vacation of the charges in the judgment of conviction or a gubernatorial pardon, and results in either dismissal of all of the charges or a finding of not guilty on all of the charges on retrial. [ MCL 691.1755(1)(a) to (c) (emphasis added).]

The WICA defines "new evidence" as "any evidence that was not presented in the proceedings leading to plaintiff’s conviction, including new testimony, expert interpretation, the results of DNA testing, or other test results relating to evidence that was presented in the proceedings leading to plaintiff's conviction."

MCL 691.1752(b). However, when the proposed new evidence depends on the reliability of a recantation, the WICA provides an additional requirement:

New evidence does not include a recantation by a witness unless there is other evidence to support the recantation or unless the prosecuting attorney for the county in which the plaintiff was convicted or, if the department of attorney general prosecuted the case, the attorney general agrees that the recantation constitutes new evidence without other evidence to support the recantation. [ MCL 691.1752(b) (emphasis added).]


Sullivan first argues that Patton’s recantation constituted "new evidence" sufficient to meet the standards enumerated in MCL 691.1755(1)(c). We disagree.

Sullivan claims that he is entitled to compensation under the WICA because Patton’s recantation constitutes "new evidence." MCL 691.1752 precludes the use of a recantation as new evidence unless it is supported by "other evidence." In this case, Sullivan claims that Patton’s affidavits, his testimony at the evidentiary hearing, and his answers to questions in the polygraph report are separate and distinct pieces of "other evidence" that support Patton’s recantation. Essentially, Sullivan argues that repeating the same recantation in different forms meets the definition of "other evidence" because each form is separate and distinct from the others. This argument is without merit.

The WICA does not define "other evidence." Merriam-Webster’s Collegiate Dictionary (11th ed.) defines "other" as "not the same" or "different." Therefore, Patton’s recantation must be supported by evidence that is "not the same" as his recantation or that is "different" from his recantation. With respect to Patton’s affidavits, his testimony, and his oral statements made during the polygraph examination, the substance of each piece of proposed evidence is essentially the...

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