Lead Opinion
Dеfendant pleaded guilty of first-degree murder, MCL 750.316; MSA 28.548, and was sentenced to life imprisonment without parole. He appealed as of right, and this Court remanded to the trial court to allow defendant to move to withdraw his plea on the basis of ineffective assistance of counsel. On remand, the trial court entered an order granting defendant’s motion to withdraw his guilty plea. The people appeal that order by leave granted. We reverse and remand for reinstatement of defendant’s conviction.
In People v Pickens,
When reviewing a claim of ineffective assistance of counsel arising out of a guilty plea, courts apply the test set forth in Strickland in light of McMann v Richardson,
Guilty pleas have been found to be involuntary or unknowing on the basis of ineffective assistance of counsel where defense counsel failed to explain adequately the nature of the charges or the consequences of the guilty plea. Thew, supra, p 91. Guilty pleas have also been found to be involuntary or unknowing where counsel has failed to discuss possible defenses to the charges to which the defendant is pleading guilty. Id. In these situations, counsel’s deficient representation effectively renders the defendant’s guilty plea involuntary because it deprives the defendant of the ability to make an intеlligent and informed choice from among his alternative courses of action. Thew, supra, p 92, quoting Rinehart v Brewer, 561 F2d 126, 132 (CA 8, 1977).
In this case, the testimony at the hearing on remand established that defendant and his attorney discussed the nature and sentencing consequences of the first-degree murder charge, the possible defenses, the possibility of a conviction of a lesser included offense, the strength of the prosecution’s case and of the available defenses, and the advantages and disadvantages of going to trial and pleading guilty. Counsel, however, did not specifically recommend which course of action defendant should take. The trial court concluded that, although counsel’s representаtion was otherwise adequate, counsel’s "neutrality” — his failure to make a specific recommendation that defendant either
The decision to plead guilty is the defendant’s, to be made after consultation with counsel and after counsel has explained the matter to the extent reasonably necessary to permit the client to make an informed decision. See MRPC 1.2(a) and MRPC 1.4(b). While an attorney may elect to offer a client a specific recommendation whether to go to trial or to plead guilty in the course of that consultation, we decline to hold that such a recommendation is required or that the failure to provide such a recommendation necessarily constitutes ineffective assistance of counsel. The test is whether the attorney’s assistance enabled the defendant to make an informed and voluntary choice between trial and a guilty plea. Absеnt unusual circumstances, where a counsel has adequately apprised a defendant of the nature of the charges and the consequences of a plea, an informed and voluntary choice whether to plead guilty or go to trial can be made by the defendant without a specific recommendation from counsеl. See Jones v Estelle, 584 F2d 687, 690 (CA 5, 1978); Trahan v Estelle, 544 F2d 1305, 1319-1320 (CA 5, 1977) (Goldberg, J., concurring).
The record in this case shows that the defense counsel made certain that defendant was aware of the nature of the charges and the consequences of his guilty plea or alternative courses of action, including the existence of possible defenses and lesser included offenses. Thew, supra. The rеcord discloses no unusual or special circumstances in this case that would require defendant’s counsel specifically to advise him to plead guilty or to go to trial. Furthermore, the fact that defendant was charged with an offense punishable by life imprisonment without parole did not, without more,
In addition to his ineffective assistance of counsel claim, defendant also contends in two related arguments that he should be allowed to withdraw his guilty plea because the trial court did not comply with the requirements of MCR 6.301(B)(2). Defendant did not move in the trial court to withdraw his guilty plea on these grounds, nor did he raise the claims in a timely manner before this Court. Therefore, they are not properly preserved for our review. MCR 6.311(A) аnd (C); MCR 7.208(B); MCR 7.211(C)(1).
Reversed and remanded for reinstatement of defendant’s conviction. We retain no further jurisdiction.
Dissenting Opinion
(dissenting). I respectfully must dissent from that portion of the majority opinion that concludes that the trial court erred in finding that defendant was deprived of effective assistance of counsel. Defendant’s plea of first-degree murder was taken in exchange for the prosecutor’s dismissal of charges of possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2), and of being an habitual offender, second offense, MCL 769.10; MSA 28.1082, hardly a real bargain. After a hearing, the trial court permitted defendant to withdraw his guilty plea. I would affirm.
This case involves the shooting death of Brad
At defendant’s plea hearing, defendant testified that early in the day of December 24, 1991, he and his brother discussed killing Farrer. The Corteway brоthers took drugs and drank a large quantity of alcohol throughout the day. Defendant and his brother were living with Farrer, from whom their sister was estranged. According to defendant at this hearing, his brother located the gun and loaded it and gave it to him. Robert then allegedly told defendant that if defendant did not kill Farrer, Robert, would kill defendant. Robert left the house. Defеndant drank more alcohol and smoked three or four more marijuana cigarettes. Defendant testified that he decided not to kill Farrer, but when Farrer came home he shot him without thinking. In handling the gun, defendant wore gloves, and he disposed of the gun and spent
Defendant testified that his sister previously had offered to pay him to kill Farrer. According to defendant, Farrer had repeatedly made sexual advances toward him, which defendant consistently refused, and Farrer had threatened to use force sometime in the future in order to have sex with defendant.
I agree with the majority’s resolution of defendant’s issues on appеal. I disagree, however, with the resolution of the prosecution’s appeal. I find no abuse of discretion, and emphasize that abuse of discretion is the standard of review that we must apply. The trial court concluded that defendant’s tried counsel was ineffective and stressed that it’s decision was entirely dependent upon the circumstances of this case. The court noted that while the trial counsel discussed with defendant the defenses that could be presented, there was no discussion concerning trial strategies or the advantages and disadvantages of entering a plea of guilty of first-degree murder. The court emphasized that defense counsel failed to advise defendant sufficiently regarding whether defendant should enter a plea. I agree.
There are two prongs to the test to determine whether a defendant was denied effective assistance of counsel. The defendant must first "show that counsel’s performance fell below an objective standard of reasonableness, аnd [then demonstrate] that the representation so prejudiced the defendant as to deprive him of a fair trial.” People v Pickens,
When the claim stems from a plea of guilty, it must be determined whether the defendant tendered the plea voluntarily and understandingly. People v Mayes (After Rem),
The trial court’s decision with regard to a defendant’s motion to withdraw a guilty plea will not be disturbed absent a clear abuse of discretion resulting in a miscarriage of justice. People v Montrose (After Remand),
At defendant’s hearing pursuant to People v Ginther,
According to Stroba, he informed defendant that he should not plead guilty because of the delays in trial. Stroba also explained to defendant that defendant would have an opportunity to makе a statement explaining the circumstances of Farrer’s death both during the plea and at sentencing. Defendant was told that his only chance of getting out of prison was a commutation of his sentence by the governor and that this would be more likely without the details of the crime on the record. Stroba testified that he did not suggest to defendant that he thought there was any great chance of such an outcome in the near future.
Defendant and Stroba had discussed three defenses: insanity, diminished capacity, and intoxication. According to both Stroba and defendant, Stroba had indicated that these defenses were not strong and that the insanity defense was especially unlikely tо be successful. Stroba testified that they discussed
how to handle the case and what we were going to do from the very beginning of my representation of [defendant] through the time of the plea, the sentence and post-sentence. So, we certainly talked about, at various steps, the advantages or disadvantages of any particular course of action including the plea itself.
Stroba testified that he probably told defendant his chances were not good and that the best possible
Defendant testified that it was his understanding from his discussions with Strоba that his defenses likely would not be successful and his "only chance” was to plead, however he was never told by his attorney to plead guilty. It was never defendant’s desire to go to prison for life.
In finding that defendant’s counsel was ineffective, the trial court stated:
[I]n the narrow factual setting of this particular case, and without commenting generally on what is effective or ineffective . . . but, on the unique factual setting of this case where you have someone that’s saying, Well, go to trial or plead guilty, whether [sic] the — a Defendant in — that state of mind, facing that kind of a decision, with the extremely long sentence facing him and . . . the most serious penalty the State of Michigan has . . . mandatory life, no parole unless the governor commutes the sentence . . . the essence of an attorney’s function in that setting is to give advice. I don’t care which way it is. . . .
Here, we have neutrality. You have a — a Defendant making a choice, in essence, unassisted by advice of Counsel. And again I emphasize, Mr. Stroba told him, he explained probably best he could the possible defenses. He explained the penalties. He explained what would happen if the plea was entered. But, the critical function is advice, and Counsel to a Defendant facing that choice. The Defendant saying, Mr. Attorney, what should I do in this situation? And that was left entirely up to Mr. Corteway. And, I think that in this particular case, [defendant was denied effective assistance of counsel].
The trial court concluded that defendant’s plea was not an understanding one because he was
Defendant testified that he thought a plea of guilty was his only chance. In a situation such as that in this case, a plea is no chance. Defendant was denied effective assistance of counsel, and the trial court did not abuse its discretion in allowing defendant to withdraw his plea.
I would affirm the trial court’s decision.