Lead Opinion
This criminal law case involves a defendant who was not informed of the maximum sentence that could be imposed on him before he pleaded guilty. MCR 6.302(B)(2) requires that the court notify a defendant of the maximum possible prison sentence. Defendant pleaded guilty of second-degree home invasion as a second-offense habitual offender, but the trial court never advised him of his maximum possible sentence as an habitual offender. We ordered oral argument on defendant’s application for leave to appeal to determine if the
We hold that MCR 6.302(B)(2) requires the trial court to apprise a defendant of his or her maximum possible prison sentence as an habitual offender before accepting a guilty plea. Because defendant in this case was not so apprised, his guilty plea was defective. We also hold that MCR 6.310(C) provides the sole remedy available to a defendant in these circumstances. Hence, pursuant to MCR 6.310(C), defendant may allow his plea and sentence to stand or withdraw his plea, in which case the court shall vacate his conviction and sentence. In the latter event, the matter may proceed to trial. Accordingly, we remand this case to the trial court for further proceedings.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Defendant conspired with his girlfriend to rob her employer’s home. He stole $10,300 worth of coins, currency, and guns from the unlocked home and shared the proceeds with her. He was apprehended and charged with second-degree home invasion,
Defendant pleaded guilty as a second-offense habitual offender
Defendant later moved to withdraw his plea or for resentencing. He argued that he should be resentenced without the habitual-offender enhancement because the trial judge had failed to advise him of the enhanced maximum sentence before taking the guilty plea. The judge denied the motion, relying on People v Boatman
The Court of Appeals denied defendant’s application for leave to appeal in a split decision; Judge GLEICHER would have granted the application. Defendant applied for leave to appeal in this Court, and we ordered and heard oral argument on whether to grant the application or take other action.
STANDARD OF REVIEW AND LEGAL BACKGROUND
This Court reviews for an abuse of discretion a trial court’s ruling on a motion to withdraw a plea.
The habitual-offender statutes, MCL 769.10 et seq., provide enhancement of a defendant’s sentence on the basis of prior felony convictions. They do not create a substantive offense independent of the principal charge. “Rather, it is a sentence-enhancement procedure with a deterrent and punitive purpose.”
This Court has never determined whether, in order to comply with MCR 6.302(B)(2), a trial court must inform a defendant of the maximum possible enhanced sentence before taking a guilty plea. The question was
The trial court informed Mr. Boatman that his maximum sentence would be two years’ incarceration, the correct sentence for an unenhanced charge of resisting and obstructing a police officer. With enhancement, however, the maximum sentence was 15 years. Boatman was eventually sentenced to 3 to 15 years in prison. He unsuccessfully moved the trial court to set aside his plea, and the Court of Appeals denied him leave to appeal. This Court remanded the case to the Court of Appeals as on leave granted for consideration of whether the defendant’s plea was understanding.
On remand, in a split, published decision, the Court of Appeals held in Boatman that MCR 6.302(B)(2) requires the trial court to inform a defendant of only the maximum sentence for the underlying offense. It does not require that he or she be informed before pleading guilty of the enhancement created by habitual-offender status. The Court concluded that Boatman
was informed, of the maximum sentence for the charged “offense,” because “[t]he habitual-offender statute does not create a substantive offense that is separate from and independent of the principal charge.” Nothing in the wording of the court rule can be construed to require a trial court to address every possible configuration or consequence of sentencing. In accordance with the dictates of MCR 6.302(B)(2), when pleading guilty, the court rule requirement that a defendant be advised of the consequences of his or her plea does not encompass advice*691 extending beyond the maximum possible sentence and any mandatory minimum sentence necessitated by law.[19 ]
The Boatman Court recognized that MCR 6.302 “requires a defendant to be informed of the consequences of his or her plea and, necessarily, the resultant sentence.”
Concurring in the result only in Boatman, Judge SERVITTO would have required trial courts to advise a defendant of the maximum sentence as enhanced by his or her habitual-offender status. She reasoned that this status directly affects the possible maximum sentence for the underlying offense, and she opined that “[w]here a defendant’s habitual-offender status leads to no separate sentence, such status could only be viewed as part and parcel of the charged crime.”
This Court has since expressed disapproval with the holding of Boatman. In People v Kade, in a statement joined by Justices CAVANAGH, MARKMAN, and HATHAWAY. I wrote that Boatman should be overruled.
In People v Ruffin, the defendant was incorrectly told that his maximum enhanced sentence was 30 years’ imprisonment.
Similarly, in People v Lofton,
Plea withdrawals after sentencing are governed by MCR 6.310(C), which provides:
Motion to Withdraw Plea After Sentence. The defendant may file a motion to withdraw the plea within 6 months after sentence. Thereafter, the defendant may seek relief only in accordance with the procedure set forth in subchapter 6.500. If the trial court determines that there was an error in the plea proceeding that would entitle the defendant to have the plea set aside, the court must give the advice or make the inquiries necessary to rectify the error and then give the defendant the opportunity to elect to allow the plea and sentence to stand or to withdraw the plea. If the*693 defendant elects to allow the plea and sentence to stand, the additional advice given and inquiries made become part of the plea proceeding for the purposes of further proceedings, including appeals.[28 ]
A defendant seeking to withdraw his or her plea after sentencing must demonstrate a defect in the plea-taking process.
THE PROPER INTERPRETATION OF MCR 6.302(B)(2) AND ITS APPLICATION
In its decision in Boatman, the Court of Appeals accurately stated that “an important focus of MCR 6.302 is to ensure that any defendant who has entered into a sentencing agreement has made a knowing, understanding, and informed plea decision.”
We disagree with Boatman and overrule that decision. MCR 6.302(B)(2) states that the trial court “must advise the defendant... and determine that each defendant understands... the maximum possible prison sentence for the offense and any mandatory minimum sentence required by law[.]” We hold that, before pleading guilty, a defendant must be notified of the maximum possible
By not telling a defendant the potential maximum sentence because of his or her habitual-offender status, “a trial court is not advising of the ‘true’ potential maximum sentence.”
In the case before us, there was a clear defect in the plea proceedings. Because defendant was not accurately informed of the consequences of his plea as a second-offense habitual offender, he was not able to make an understanding plea under MCR 6.302(B).
We determined in 1981 in People v Jones that a failure to advise a defendant of the maximum possible prison sentence before taking a guilty plea constitutes an error requiring reversal.
In 1974, in People v Shekoski,
The next year, in Guilty Plea Cases, we renounced Shekoski and adopted a “substantial compliance” test for errors in plea proceedings.
In Guilty Plea Cases, a defendant was informed that by pleading guilty of armed robbery, he was subject to a possible sentence of “up to life.” But he was not advised that he might be ineligible for probation.
In 2001, in the case of People v Saffold,
The distinctions we have drawn are supported by our court rules, which differentiate a defendant’s trial rights from the consequences of a guilty plea on a defendant’s sentence. For example, MCR 6.302(B)(5) allows a written waiver of the trial rights found in MCR 6.302(B)(3). It does not, however, allow a written waiver of the requirement under MCR 6.302(B)(2) that is involved in the current case. Because trial rights and sentencing consequences are distinct, Saffold does not apply to our analysis of MCR 6.302(B)(2). And it does not apply to how the statute relates to a defendant’s right to be informed of his or her maximum possible prison sentence.
We continue to recognize the distinction we drew in Guilty Plea Cases between information about a defendant’s trial rights and information about a defendant’s sentence. We note that MCR 6.310(C) now provides the proper remedy for a plea that is defective under MCR 6.302(B)(2), which is to allow the defendant the opportunity to withdraw his or her plea.
Additionally, we are not alone in concluding that the failure to inform a defendant of the maximum sentence that could be imposed before he or she pleads guilty renders a plea involuntary.
If the trial court determines that there was an error in the plea proceeding that would entitle the defendant to have the plea set aside, the court must give the advice or make the inquiries necessary to rectify the error and then give the defendant the opportunity to elect to allow the plea and sentence to stand or to withdraw the plea.
Because defendant was not informed of his maximum possible enhanced prison sentence before he pleaded guilty, he is entitled to the remedy provided by MCR 6.310(C). Thus, we remand this case to the trial court. On remand, defendant must be given the option of allowing his plea and sentence to stand or of withdrawing his plea. If the plea is withdrawn, the trial court must vacate his conviction and sentence and the matter may proceed to trial.
We reject defendant’s argument that he is entitled to be resentenced in accordance with the unenhanced maximum sentence of which he was informed at the plea hearing. We hold that MCR 6.310(C) provides the proper remedy for violations of MCR 6.302(B)(2). It requires that a defendant be informed of the maximum enhanced sentence before being given the opportunity to elect (1) to allow his plea and sentence to stand or (2) to withdraw it. Resentencing a defendant to a term
Moreover, resentencing would modify an otherwise valid sentence. As we have said throughout this opinion, the plea procedure was defective here because defendant was not notified of his maximum possible sentence under MCR 6.302(B)(2). On the other hand, the sentence fell within the guidelines for a second-offense habitual offender and is presumed accurate “absent an error in scoring the sentencing guidelines or inaccurate information relied upon in determining the defendant’s sentence.”
Thus, the remedy employed today differs from that used in Ruffin and Lofton. Ruffin is particularly distinguishable from the present action because there the prosecution conceded that the proper remedy was to resentence the defendant to the erroneous sentence discussed at the plea hearing.
In Kade, we noted that an arguable conflict exists between MCR 6.302(B)(2) and MCL 769.13(3). The statute permits a prosecuting attorney to file a notice of intent to seek an enhanced sentence under the habitual-offender statute after a defendant has entered a plea.
CONCLUSION
MCR 6.302(B) specifically gives defendants who plead guilty of a crime the right to know beforehand the maximum possible sentence that will result from their plea. We hold that when a defendant is subject to an enhanced sentence as an habitual offender, that enhanced sentence is part of the maximum prison sentence described in MCR 6.302(B)(2). Accordingly, we overrule the Court of Appeals’ decision in Boatman. To
We also hold that MCR 6.310(C) provides the remedy for this violation of MCR 6.302(B)(2). Because the defendant in this case was not given the required sentence-enhancement notice, we remand the case to the trial court. Pursuant to MCR 6.310(C), defendant may allow his plea and sentence to stand or withdraw his plea, in which case the trial court must vacate his conviction and sentence. In the latter event, the matter may proceed to trial. We do not retain jurisdiction.
People v Brown, 490 Mich 976 (2011).
Id.
MCL 750.110a(3).
MCL 750.357b.
MCL 750.224f.
MCL 750.360.
MCL 769.12.
MCL 769.10.
Defendant’s challenge to the order of restitution is not before this Court and will not be discussed.
People v Boatman, 273 Mich App 405; 703 NW2d 251 (2006).
See People v Ruffin, 488 Mich 891 (2010), and People v Lofton, 488 Mich 924 (2010).
Brown, 490 Mich 976.
People v Lang, 381 Mich 393, 398-399; 162 NW2d 143 (1968).
MCR 6.302(A).
People v Oswald (After Remand), 188 Mich App 1, 12; 469 NW2d 306 (1991); see People v Kade, 486 Mich 978, 981; 783 NW2d 102 (2010) (Marilyn Kelly, C.J., concurring), citing Oswald.
MCL 769.13(3) provides that
[t]he prosecuting attorney may file notice of intent to seek an enhanced sentence after the defendant has been convicted of the underlying offense or a lesser offense, upon his or her plea of guilty or nolo contendere if the defendant pleads guilty or nolo contendere at the arraignment on the information charging the underlying offense, or within the time allowed for filing of the notice under subsection (1).
MCL 769.13(1) contains additional time restrictions for seeking a sentence enhancement under the habitual-offender statutes and requires the prosecuting attorney to file “a written notice of his or her intent to do so within 21 days after the defendant’s arraignment on the information charging the underlying offense or, if arraignment is waived, within 21 days after the filing of the information charging the underlying offense.”
People v Boatman, 475 Mich 862 (2006).
Id.
Boatman, 273 Mich App at 407-408 (citation omitted).
Id. at 409.
Id. at 414 (Servitto, J., concurring in result only).
Kade, 486 Mich at 981-982 (Marilyn Kelly, C.J., concurring).
Ruffin, 488 Mich at 891.
Id.
Lofton, 488 Mich at 924.
MCL 750.227b(1).
Lofton, 488 Mich at 924.
Emphasis added.
People v Montrose (After Remand), 201 Mich App 378, 380; 506 NW2d 565 (1993).
Boatman, 273 Mich App at 409.
Id.
Id.
Boatman, 273 Mich App at 414 (Servitto, J., concurring in result only).
The concurrence/dissent contends that
the court rule actually and explicitly requires only that the court inform a defendant of the maximum possible prison sentence for the offense to which the defendant pleads guilty and does not require the court to inform a defendant of the possible sentencing enhancement resulting from his status as an habitual offender.
Post at 702. However, as was explained in Kade, “an habitual offender supplement is not a separate offense,” and thus “it logically follows that it must be linked to, or considered one with, the underlying offense. As such, to comply with MCR 6.302(B)(2), a defendant must be made aware of the consequences of ‘the offense’ including any habitual offender enhancement.” Kade, 486 Mich at 981 (Marilyn Kelly, C.J., concurring).
We note that People v Cole, 491 Mich 325; 817 NW2d 497 (2012) supports our holding that the plea defendant entered was defective. There, the defendant was not informed before pleading guilty to second-degree criminal sexual conduct that he was required to be placed on lifetime electronic monitoring pursuant to MCL 750.520c(2)(b). We held that “the ‘understanding, voluntary, and accurate’ components of [MCR
The voluntariness requirement mandates that a defendant entering a plea be “fully aware of the direct consequences” of the plea. Brady v United States, 397 US 742, 755; 90 S Ct 1463; 25 L Ed 2d 747 (1970). “The most obvious ‘direct consequence’ of a conviction is the penalty to be imposed,” thus requiring that a defendant be notified of the sentence he or she will be forced to serve because of the plea. Blankenship v State, 858 SW2d 897, 905 (Tenn, 1993). It is therefore apparent that habitual-offender enhancement is a direct consequence of pleading guilty because it affects the defendant’s sentence. Thus, a defendant must be fully aware of the consequences of that enhancement before pleading guilty.
Additionally, in Cole, 491 Mich at 334 we noted that the determination of whether a statute imposes punishment can begin and end with a finding that the legislative purpose was to impose punishment. See Smith v Doe, 538 US 84, 92; 123 S Ct 1140; 155 L Ed 2d 164 (2003). Our courts have consistently concluded that the habitual-offender statutes provide “a sentence-enhancement procedure with a deterrent and punitive purpose.” Oswald, 188 Mich App at 12. Following the Smith v Doe paradigm, we conclude that an habitual-offender sentence enhancement constitutes a “direct” consequence of a guilty or no-contest plea and thus requires notice before a plea is taken. Id. at 12; see Boatman, 475 Mich 862, 862-863 (2006) (Young, J., dissenting).
People v Jones, 410 Mich 407, 411; 301 NW2d 882 (1981). In People v Jackson, 417 Mich 243, 246; 334 NW2d 371 (1983), this Court limited the application of Jones. It held that automatic reversal is not required for a failure to give advice concerning the mandatory minimum and maximum sentences if the defendant is sentenced pursuant to a sentencing agreement.
Jones, 410 Mich at 412.
People v Shekoski, 393 Mich 134; 224 NW2d 656 (1974).
This court first adopted these procedures in 1973. 389 Mich lv-lvii. They are currently set forth in MCR 6.302.
Shekoski, 393 Mich at 134.
Guilty Plea Cases, 395 Mich 96, 113; 235 NW2d 132 (1975) (“Whether a particular departure from Rule 785.7 [now MCR 6.302] justifies or requires reversal or remand for additional proceedings will depend on the nature of the noncompliance.”).
Id. at 117-118. In addition, the Court retained a rule of automatic reversal for the failure to provide advice concerning three matters: (1) the presumption of innocence, (2) the consequences of a plea on probation or parole, and (3) the rights set forth in People v Jaworski, 387 Mich 21; 194 NW2d 868 (1972): the right to a jury trial, the right to confront one’s accusers, and the right to remain silent. Guilty Plea Cases, 395 Mich at 118-121.
Id. at 118.
When a criminal defendant stated his intent to plead guilty or to plead nolo contendere, GCR 1963, 785.7(1)(b) stated that the trial court
shall not accept a plea of guilty or nolo contendere without first personally addressing the defendant and informing him of and determining that he understands the following.
Ob) the maximum sentence and the mandatory minimum sentence, if any, for the offense to which the plea is offered.
Guilty Plea Cases, 395 Mich at 118.
Id. We note that Guilty Plea Cases predates our adoption of MCR 6.310(C).
People v Saffold, 465 Mich 268, 271, 278-280, 287; 631 NW2d 320 (2001).
Id. at 287 (Markman, J., dissenting).
See MCR 6.302(B)(3). These rights include the right (a) to be tried by a jury, (b) to be presumed innocent until proved guilty, (c) to have the prosecutor prove beyond a reasonable doubt that the defendant is guilty, (d) to have the witnesses against the defendant appear at the trial, (e) to question the witnesses against the defendant, (f) to have the court order any witnesses the defendant has for the defense to appear at the trial, (g) to remain silent during the trial, (h) to not have that silence used against the defendant, and (i) to testify at the trial if the defendant wants to testify. Id.
See, e.g., King v Dutton, 17 F3d 151, 154 (CA 6, 1994).
See McCarthy v United States, 394 US 459, 466; 89 S Ct 1166; 22 L Ed 2d 418 (1969); People v Schluter, 204 Mich App 60, 66; 514 NW2d 489 (1994); see also US Const, Ams V and XTV; Const 1963, art 1, § 17.
MCL 769.34(10). See People v Francisco, 474 Mich 82, 88, 92; 711 NW2d 44 (2006) (remanding for resentencing under MCL 769.34(10) because of an incorrect scoring of the statutory sentencing guidelines). Defendant erroneously relies on People v Cobbs, 443 Mich 276; 505 NW2d 208 (1993), to argue that he should he resentenced at the unenhanced maximum sentence for second-degree home invasion. Where an error in the judgment of sentence rendered the sentence inconsistent with the sentence the court intended, we have ordered that the judgment of sentence be amended. People v Littleton, 490 Mich 910; 805 NW2d 203 (2011). Similarly, when a Cobbs evaluation was within the sentencing guidelines range hut the range was inaccurate because of a scoring error, we have ordered resentencing. In those cases, we have given the sentencing court the discretion either to adhere to the Cobbs evaluation or allow the defendant to withdraw the plea. See People v Spencer, 477 Mich 1086; 729 NW2d 225 (2007). These Cobbs cases are not applicable to the case at hand because there are no sentencing errors or errors in the judgment of sentence.
Ruffin, 488 Mich at 891.
Lofton, 488 Mich at 924.
Kade, 486 Mich at 981-982 (Marilyn Kelly, C.J., concurring).
Concurrence in Part
(concurring in part and dissenting in part). For the reasons I have previously stated in People v Boatman,
While I disagree that there was a violation of MCR 6.302(B)(2), I do agree with the majority on the remedy when such a violation occurs. I concur, therefore, with that portion of the majority opinion holding that the MCR 6.310(C) provides the sole remedy for violations of MCR 6.302(B)(2) when a defendant seeks to withdraw his plea after sentencing. This Court’s orders in People v Ruffin
Aside from the fact that the court rule does not provide for it, several considerations militate against permitting a defendant to be resentenced to the unenhanced maximum sentence.
First, if there is a consequential defect in the plea taking proceedings, the validity of the plea itself is called into question. MCR 6.302(A) indicates that a trial court may not accept a guilty plea unless it is “convinced that the plea is understanding, voluntary, and
Second, permitting a defendant to be resentenced assumes that the information concerning the unenhanced sentence given by the trial court was a term of the plea bargain agreement, rather than simply incomplete information. In this case, defendant was charged with second-degree home invasion,
Moreover, even when there is a genuine Cobbs agreement and a defendant’s guilty plea is made in exchange for a specific sentence disposition by the trial court, the defendant’s remedy is limited to withdrawing his guilty plea if the court is unable to sentence the defendant as stated. Under MCR 6.310(B)(2)(b), a defendant is not entitled to specific performance of a Cobbs agreement. Thus, permitting the remedy of specific performance when a defendant who is an habitual offender is allegedly incorrectly advised regarding the unenhanced maximum sentence provides that defendant with a greater remedy than he would have been entitled to if the unenhanced maximum sentence had been an explicit term of the plea agreement. Defendant’s counsel has proffered no reason to support such an enhanced benefit, and I certainly cannot divine a justification for why defendant should be entitled to receive it.
Finally, assuming that the allegedly incomplete information was a term of the plea agreement, permitting defendant the remedy of being resentenced to the unenhanced maximum sentence would essentially permit the trial court to change its mind regarding the exercise of the court’s sentencing discretion, disregard
Because I believe that MCR 6.302(B) does not require the trial court to inform a defendant of his maximum possible prison sentence as enhanced by his status as a habitual offender, I respectfully dissent. I concur, however, that MCR 6.310(C) provides the sole remedy for violations of MCR 6.302(B)(2) when a defendant seeks to withdraw his plea after sentencing.
People v Boatman, 475 Mich 862, 862-863 (2006) (Young, J., dissenting).
People v Ruffin, 488 Mich 891 (2010).
People v Lofton, 488 Mich 924 (2010).
MCR 6.310(C).
Bousley v United States, 523 US 614, 618; 118 S Ct 1604; 140 L Ed 2d 828 (1998) (citation omitted).
MCL 750.110a(3).
MCL 750.357b.
MCL 750.224f.
MCL 750.360.
MCL 769.12.
MCL 769.10.
MCL 750.227b.
See People v Cobbs, 443 Mich 276; 505 NW2d 208 (1993).
At sentencing, the trial court stated:
I read the Presentence Report... I read the Victim Impact Statement. I listened to counsel and [defendant] in court.
You’re 31 years of age, six felonies, five prior misdemeanors. This case involves entering into, obviously without permission, the home of another person to steal guns, coins, cash.
I think [the probation officer] wrote a fairly clear report. And his description of your interactions and your background, there’s a striking contrast between what he describes and how you present yourself in Court, how you’ve presented yourself in Court before. He describes you as violent, unpredictable, less than convincing, a manipulator, does not like being confronted about his lack of motivation. This report does indicate very little of a positive nature for this Court to rely on.
You ask for a fair and lenient sentence ... in this case. Those things are inconsistent because a lenient sentence would not be fair, it would not be just.