*1
459 Mich
PEOPLE v WARD
May 18,
application by
people
Docket No. 112395. Decided
1999. On
appeal,
Supreme Court,
granting leave,
for leave to
in lieu of
judgment
Appeals
reversed the
of the Court of
and reinstated the
Rehearing
defendant’s conviction.
denied
John D. Lazar for the defendant-appellee. Amicus Curiae:
Norman W.Donker, President, William A. Forsyth, K. Timothy Prosecuting Attorney, and McMorrow, Chief Appellate Attorney, for Prosecuting Attorneys Association of Michigan. In case, we consider whether
Per Curiam. defendant, who was represented by retained counsel, permitted should be to set aside a defective OUIL 2d plea fourteen months after it was entered where (1) subsequent ouil arrest and desire to avoid an sentencing as obviously 3d offender motivated ouil *3 the motion, and (2) retained counsel, in the absence of the prosecutor, knowingly entered a woefully plea defective at arraignment without bringing the defects to the court’s attention. Thus, retained coun- preserved sel the strategic possibility of setting aside if defendant were ever charged with another ouil offense.
As explained below, we question answer this in the negative. Unlike dissent, we decline to allow this transparent manipulation system. of the We will not allow defense counsel to plain harbor error para- as a chute in the event of a subsequent OUIL charge. A con- trary ruling provide would no incentive to defense counsel to ensure that pleas valid are taken; in fact, such a ruling would encourage pleas counsel to enter that do comply not with the court rules. 605 v Ward Opinion of the Court pleaded guilty February defendant 1, 1995,
On operating his vehicle while a motor and of 2d,1 OUIL suspended months 3Fourteen or revoked.2 was license driving charged being 3d,® and with OUIL later, after suspended offense,4 license, second revoked or with a moved to set the defendant case, in an unrelated alleges that the Defendant his OUIL 2d aside court had that the district basis and lacked a factual accepting requirements comply for with the failed to 6.610(E). The district court MCR under granted court affirmed. and the circuit motion, Court, the Court of remand from
On
application
prosecutor
affirmed.5
filed an
has
that the
We conclude
to this Court.6
leave to
setting
aside
discretion
abused its
district court
plea, and reverse.
i
January
arrested for
1995, defendant
19,
On
suspended
driving
driving
license.
with a
drunk
February
retained
the assistance of
1, 1995, On
arraigned
District Court.
in the 52-1
counsel, he was
pleaded guilty
arraignment,
At the
operating
charged
influ-
vehicle under the
a motor
operating
liquor,
a motor
offense, second
ence of
suspended
license. The
or revoked
with a
vehicle
257.625(7)(b);
9.2325(7)(b).
MSA
MCL
9.2604(l)(a).
257.904(l)(a); MSA
MCL
257.625(7)(d);
9.2325(7)(d).
MSA
MCL
9.2604(l)(b).
257.904(l)(b); MSA
MCL
*4
5
95;
(1998).
App
495
583 NW2d
230
prosecutor
for immediate consideration
also filed a motion
The
Attorneys
Michigan
Prosecuting
filed a motion for
Association
the
granted.
curiae. Those motions
file a brief as amicus
leave to
record reflects that no present for the arraignment guilty plea.7 The district judge accepted the without observing requirements of MCR 6.610(E). Specifi- cally, the judge question did not defendant and did not determine that was understanding, volun- tary, and accurate. Likewise, he did not inform defendant of the maximum sentence or of the rights he was giving up by offering When defense counsel announced the decision plead guilty, the judge accepted and immediately imposed the sentence years of two probation, thirty days be in jail, served together with fines and costs.8 February
On 3, 1996, defendant was again arrested for drunk driving and charged in the 52-1 District Court with operating a motor vehicle under the influ- ence of liquor, third offense, and a operating motor vehicle with suspended or revoked license, second offense. One prior of the offenses support used to OUIL 3d charge was February 1, 1995, guilty plea conviction of ouil 2d in the 52-1 District Court.
Approximately two months after he was charged with ouil defendant moved to withdraw the 1995 3d, guilty plea conviction on ground that the judge’s deviation from MCR 6.610(E) affected his substantial rights. prosecutor contended that the motion to withdraw merely was filed to extricate defendant presence plausibly While the state’s would have rectified the deficient plea, compels we are prosecutor’s aware of no pres court rule that arraignments ence at pleads misdemeanor guilty where defendant charged. judge actually imposed jail months, suspended term of six but the last five months on various conditions. *5 People 607 v Waed op
Opinion the Court further prosecutor The the of OUIL 3d. charges from the delay made the fourteen-month argued attack on the an collateral impermissible motion conviction. guilty set aside defendant’s 1995 judge
The district
failure
The court
that the
conviction.
determined
plea
the
or to
question
concerning
defendant
offense
to
along with the fail-
plea,
a factual basis for the
obtain
his
consti-
rights,
advise defendant of
of
ure to
The dis-
affecting
rights.
tuted a deviation
substantial
held
motion to withdraw
trict court further
that the
attack,
was
it occurred
plea
not a collateral
since
the
was
the same court
which the conviction
entered,
subsequent
not in a different
in which a
case
being prosecuted.
was
charge
prosecutor appealed
The
to Oakland Circuit Court.
to
July 31, 1996, the
court denied leave
On
circuit
prosecutor
application
The
an
for leave
appeal.
filed
22,
On
appeal
Appeals.
to the Court of
November
to
leave
1996,
Appeals
appeal.
the Court of
denied
to
County
filed
prosecutor
application
The Oakland
an
In
granting
leave to
to
Court.
lieu of
for
of
to
we remanded the case to the Court
appeal,
leave
We
as on leave
Appeals
granted.
reconsideration
Appeals
to consider whether
directed
Court
plea
set
properly
guilty
aside
district
2d.
[The] requirements plea-taking during ble proceeding provide opportunity does not a defendant challenge to validity plea, collateral attack. of such where the represented by attorney entering an when intelligently or when the defendant waived the right counsel, including court-appointed right *6 indigent, counsel if is unassailable.
The Court of Appeals
concluded that if the
defendant’s attack on the February
plea-based
collateral,
conviction was
opposed
as
to direct,
the
defendant was not entitled to have it set aside. It
Ingram,
noted
that in
we defined “collateral attacks”
challenges
“those
raised other
than
initial
appeal of
question.”
the conviction in
Opinion Court appeal from district may leave to grant court expired. an has taking appeal the time court after Thus, that if the Court reasoned only on his challenge plea-based could taking one of prevent then to him from appeal, direct necessary defy logic. The steps to do so would Court concluded: challenge his we that defendant’s Because conclude prosecu attack,
plea-based and the conviction was a direct of the district tion not otherwise contest merits does motion, grant we hold that court’s defendant’s decision granting did abuse its discretion not district plea-based his conviction. motion to set aside App 102.[9] [230 in the Court of said dissenting judge is his convic- challenging the defendant although attack, it appeal on rather than collateral
tion a direct brought never been was an that would have as a third charged not been had the defendant unacceptable: found this offender. The dissent long-delayed previously suggested that Court has This plea-based will direct district court convictions attacks *7 9 potential manipulation Appeals recognized the the for of of Court 476, permits. People App system Nydam, v a rule See that such However, 479; (1987). is to be 419 it said if criticism NW2d 417 assigned squarely on the court that took the fall most district “it should following place.” App the first Mich 103. It noted defective in the 230 65-66; People 55, (1995): Erwin, App 212 NW2d 818 from v Mich 536 Legislature exceptional has inasmuch as the Ouil offenses are simple provided augmented punishment of a misdemeanor for for repeat up including felony It is treatment. there- offenders procedures importance regular special courts
fore of follow carefully accepting pleas con- these misdemeanor offenses subsequent pleas potential consequences fel- such for sider of the ony offenses. 610 459 Mich 602 Opinion of Court high be deemed collateral and therefore must surmount a judicial People threshold before relief will be considered. v Erwin, App 55, 66; 212 (1995). Mich 818 NW2d present precisely delayed case of involves sort direct attack that be should deemed collateral in the of interest finality consequences “considerations of and administrative part process must become with of which we [which] proceedings assure achievement of that are consistent rudimentary procedure.” of fair demands [supra Ingram App at 293-294]. [230 104.] The Court of characterization of defend- request ant’s to withdraw his aas “direct attack” his technically conviction is correct. The OUIL 2d rule governing pleas motions to withdraw does not set a time limit. MCR 6.610(E)(7).10 However, the rule require does a motion to set the plea aside before plea procedure issues regarding are raised on appeal.
Because the offense occurred after 24, December 1994, the appeal defendant had no right from his plea-based conviction.* Thus, appellate rights governed by MCR 7.103(A), provides: which
Availability. may grant appeal The circuit court leave to municipal trial from a or court when (1) right no exists, or (2) taking appeal the time 7.101(B)(1) for under MCR has expired. applicable pleas, This is contrast to rule to circuit court which permits only filing application such motions within the time for an appeal. 6.311(A). leave to MCR 1963, 20, 1, general Const art § as amended the voters at the 1994 election. *8 People v Ward
Opinion of the Court filing provides (B)(1) an the time for Subrule application: by statute, prescribed an Except when time is another days
application
filed within
to
must be
for leave
appealed from.
entry
judgment
of
or order
after the
the
appeals
only provision regarding
is MCR
late
appeals
suggests
7.103(B)(6),
late
that
which
limit:12
sets no time
allowed, but
application
application
(A)(2) or an
subrule
An
under
accompa-
timely
(B)(1), must be
subrule
is not
under
delay.
explaining
The circuit court
nied
an affidavit
delay
may
in
length
of and the reasons for the
consider
application.
deciding
grant
whether
to
supra.
adopt
Erwin,
v
We
the rationale of
may
Long-delayed
be
“direct” attacks on convictions
regardless
However,
of
attacks.
viewed as collateral
challenges,
long-delayed
to such
the label one affixes
entirely appropriate
higher
is
that a much
standard
it
applied
seeks relief from a
be
to
defendant who
appel-
judgment long
an
the conviction. Just as
after
length
to
of and reasons for
late court is
consider
delay
appeal,
grant
deciding
to
in
whether to
leave
delay
bringing such a motion is a factor that
in
determining
consider in
whether
the trial court must
finality
grant
In
cases, our concerns
to
relief.
such
jus-
of
effective administration
and the efficient and
supra.
importance. People Ingram,
grow tice
case,
we hold that the
In
the circumstances
setting
aside
its discretion
district court abused
7.205(F), which allows the Court of
MCR
This is
contrast
application
appeals
is
within
grant
if the
filed
twelve
late
judgment
order on the merits.
months
or
Reinstating the defendant’s is consistent with our People decision in Ingram, supra. The two knowledge experience handling driving Counsel’s drunk cases is significant publications legal community. evidenced his in the Counsel continuing publications, including has authored several education Defense Driving Michigan, Driving Drunk Cases in Drunk Law and Practice of Driving Update. 1998 Drunk the Defense 6.302(E). attorney represented Cf. MCR The same defendant the at proceedings, although 2d ouil and ouil 3d substitute was counsel utilized to make the to the motion withdraw v Ward
Opinion of the Court appeal Ingram in that the differ somewhat cases challenge as to the defendant’s to Court came However, criti- for OUIL circuit court conviction 3d. presented identical question virtually was cal accurately Appeals panel Court of here. instant Ingram facts follows: summarized Ingram charged (Case with ouil 3d defendant plea-based underlying ouil convictions 5) based four on two (Cases 1-4). the circuit court ruled that of After 2) underlying (Cases 1 & infirm because were convictions counsel, lack entered a of of 5, guilty charge of ouil 3d Case conditional validity challenge preserving right to his 3). underlying (Case convictions Before one of the other *10 5, appealing in Case the defendant his ouil conviction 3d plea-based to his separate a motion in Case 3 have made granted, After this motion was conviction set aside. in withdraw his the circuit to defendant moved App 5, was denied. Mich in Case and this motion [230 99-100.] facts, upheld we the defendant’s OUIL
On those 3d defendant’s earlier chal- conviction, treating in effect of ouil as a court conviction to the district lenge 2d attack. collateral Ingram is consistent the analo- holding in delayed are new trial motions principle long that
gous Mich 192 People Johnson, 305; v 386 See disfavored. of the denial a motion (no NW2d 482 error (1971) motion was four- brought a new where the trial People Curry, v years plea); teen after dis- 724, (1985) (no NW2d 854 abuse of App 730; 371 trial brought a for a new denying motion cretion where the defendant years after conviction fourteen to of the crime he was innocent never indicated pleaded he guilty). which 459 Mich
Opinion of Court Similarly, appeal where an to the Court of delayed by is judg- more than twelve months after ment, appeal is foreclosed is limited to post-appeal provisions relief under MCR 6.501 seq. et MCR essence, delayed In a 7.205(F)(3). long appeal direct is treated as principle collateral. No countenances giving a defendant district court greater plea-based freedom to attack than felony our rules allow for convictions. Accord- today we ingly, long delayed appeals hold direct are deemed collateral.
Where a
to
motion
withdraw a
is
guilty
made
after conviction and sentencing,
it must be made
on a
justice.
based
of
showing miscarriage
v
Winegar,
731;
Accordingly, of judgment the Court of is reversed and the defendant’s conviction of OUIL 2d is reinstated. In view of the ambiguity in the rules regarding delayed appeals, separate we today, by order, for comment publishing proposed amendments v Ward Opinion Dissenting Cavanagh, J. clarify time limits 7.103 to 6.610 and of MCR plea-based challenging court. in district convictions Weaver, C.J., and Taylor, Corrigan, and Brickley, Young, JJ., concurred. (dissenting). facts this While the of Cavanagh, operating with the mechan- concerns raise some
case I these concerns rules, would address our court ics of proper resort, as the rather than forum, in their conclusory opin- ill-grounded majority to an does, will little than blur the which, fear, do more I ion need seem to indicate that case would lines clarification.
i February plea pro- transcript 1995, 1, of As the ceeding demonstrates, as the in this case hope- dispute, in this matter was not does lessly judge gave no The advice defective. district nothing defendant;1 whatsoever and asked of any basis, was recitation of a factual nor there no rights. essence, a waiver of In defense elicitation of merely going stated that the defendant counsel accepted guilty, judge plead It and the trial hope, strange, and, one not often these would is controversy.2 repeated, facts that underlie current any only once, spoke if he had comments when asked defendant sentencing. before majority suggests rule that that it is unaware of arraignments prosecutor’s presence requires where “the at misdemeanor 606, agree, pleads guilty charged.” Ante n 7.1 would at [the] Nonetheless, have, far, course, it no rule. that we thus enacted such system justice painfully we the adversarial seem obvious would are, fact, present. indis It is when there adversaries utilize works best sufficiently that, prosecutor present, and, presumably, putable were the *12 Mich
Dissenting Opinion by Cavanagh, J. In of reviewing the merits the successor district judge’s plea, on the motion to withdraw I ruling the find it even argue difficult indeed to that there was an of in granting abuse discretion the motion. The court allowing rule the motion of withdrawal of district court is guilty pleas provides MCR which 6.610(E)(7), in part: following provisions apply a where defendant seeks challenge plea. the
(a) may plea A challenge defendant not on unless the defendant the trial court moved to withdraw noncompliance the for with these rules. Such a motion may be either or made before after sentence has been imposed. (b) the trial court determines that a deviation If affect-
ing rights occurred, substantial it shall correct the devia- give option permitting tion and the the the of withdrawing to stand or the If the trial court of occur, determines either deviation did not or that the may permit deviation rights, did not affect it substantial the plea only defendant to withdraw the if it does not cause prejudice people substantial to the because of reliance plea. [Emphasis supplied.] the rule, course, permits of of denial a motion to withdraw a if prosecution would be prejudiced by such a withdrawal. It would be difficult to state that that would be the here, case given availability testimony of the of the arresting police point plea, time, aware to be able to out the deficiencies countless effort, judicial spared, resources would have been with the matter being application court, corrected in the trial rather than on for leave to Likewise, failings judge’s plea procedure this Court. district require that, case are so substantial as to notice had the district court comply rules, made effort might this decision not be necessary. People v Ward Dissenting Opinion Cavanagh, pros- Indeed, the blood alcohol test.3 officers and argument Court, before this no such makes ecutor arguing only are collateral defendant’s efforts that the rules which the usual conviction, to on the attacks regarding pleas requests not would withdrawal *13 apply.
n
questions,
first
two
addresses
The
being
and
collateral,
or
whether this attack is direct
implicitly,
being,
whether that would even
the second
ques-
respect to the first
to this Court. With
matter
majority agrees
for with-
that this motion
tion, the
plea, coming
within the case which
drawal of
“technically
Ante
entered, is
correct.”
conviction was
agree with
the successor district
at 610. I would
both
judge
judge,
Court of
and the circuit
as well as the
challenge
Appeals majority,
find that this
and
conviction, with no need
a direct attack on the
indeed
majority’s
modifiers. As the Court
to offer the
Appeals
majority effectively
noted:
plea
court,
procedures
taking
for
a
the district
plea,
6.610(E).
challenging
in MCR
for
such a
addressed
(a)
rule,
(7)
of that
Pursuant
to subsection
appeal
may
challenge
not
a
unless
“[a]
trial
to withdraw the
the defendant moved
court
may
noncompliance
a motion
be
with these rules. Such
imposed.”
has been
made either before or after sentence
provide
applicable
no time
The rules
to the district
made,
by
and we are not
which such a motion must be
limit
persuaded
court rules to
we should look to the circuit
that
3
prosecutor’s
that defendant’s blood
brief to this Court reveals
percent
level.
a 0.24
blood alcohol
alcohol test showed
Dissenting
Opinion
Cavanagh, moving
a time limit for
to withdraw a
in the
establish
language
Because the
of the court rule
district court.
is
clear,
apply
being
written.
no
we should
it as
There
time
specified
6.610(E),
in MCR
we decline to con-
restrictions
containing
People Harris,
this court
strue
rule as
one. See
App 597, 601;
Moreover,
(1997).
that the instant case
somewhat,” in that the
“differ[s]
Ingram
appeal
in
came to this Court
a challenge
People
v Ward
Dissenting Opinion by Cavanagh, court conviction of OUIL
the defendant’s circuit
3d.
Ingram
words, the
613. In other
Ante at
by way
prior
challenged
of an
his
subsequent
attack.
conviction, i.e.,
collateral
of a
given
of the courts
be,
would seem to
the focus
That
majority
between
and the
on the distinction
below
more than a minor dif-
attacks,
direct and collateral
in
a substantial distinction.
and,
fact,
ference
majority’s holding,
given
In
it would
event,
may
that we
short-circuit our discussion of the
seem
collateral attacks because
finer nuances of direct and
summarily
majority simply
that “we hold
states
today
delayed
appeals
long
direct
are deemed
disagree with,
at 614. I
and indeed
collateral.” Ante
difficulty
following,
“logic”
have
even
majority’s
decision, which would cite our decision
Ingram,
Court of
deci-
as well as various
pointless.
them,
effect,
sions,
then render
majority’s
apparently supported only
rule,
Under the
analogy
Johnson,
305;
v
386 Mich
App
(1971),
People Curry, NW2d 482
(cases
(1985)
with
724;
It clear that the would seem that district court this case results from the fact our rules lack a time limit for a motion to with- bringing draw a That would seem to be of an something aberrancy Court, rules. This in its administra- our tive role, equipped is well to deal those difficul- application apparent ties in of our rules that become usage. in the course of Should a of the Court sufficiently likely believe that a case such as this is require action,5 reoccur as to this Court would have difficulty prevent no modifying our rules such a Instead, majority simply adopts reoccurrence. retrospectively impermissible rule that would make what was, occurred, permissible when it under the court rules. motivation of the underlying decision, Court’s
as implied by majority’s opinion, is a belief that “sharp practice” there was some below. The majority, in essence, making judgment seems to be a value defendant should not be allowed to withdraw his only doing where the reason for his so was the cun- ning pointing of his counsel in not out the district judge’s shortcomings. disagree por- I would with both tions judgment. part, of that As to the first as men- above, that, tioned there is little doubt were defend- previously detailed, compilation recalling, It is worth of errors necessary way that was for this case to find its to this Court. *16 People v Ward Dissenting Opinion by Cavanagh, plea, prosecution ant allowed to withdraw his difficulty obtaining would have no a conviction on the police testimony basis of the officer’s and the blood might deprive pros- alcohol evidence. While this ability ecutor of the to enhance defendant’s subse- quent offense, the unfortunateness of that result must weighed be with the unfortunate results that will surely engendered opinion today. be with the Court’s along Appeals,
This Court has, with the Court of expended a considerable effort to delineate the lines postconviction between direct and collateral chal- Today lenges. the Court endeavors to obscure those suggests prior lines, and further that our labors were simply pointless. question of collateral versus appears challenges direct in contexts far more com- plex guilty than the withdrawal of a in a district driving court drunk case. just
While no court wishes to see a things vacated, it must be recalled that two are true by first, in this case: that the conviction was obtained woefully wholly that was deficient and unable own, and, stand on its second, that, whatever our today, suggested decision it is not that there would be impediments prosecutor obtaining serious to the charge a conviction on this were the to be with- recognize per- drawn. Rather than facts, these and the haps broad-reaching scope far thus undetermined opinion today, majority simply of its selects the supported, path particu- easiest, albeit least toward a lar result. offers that what occurred in this case “transparent manipulation system,”
was a of the fixat- ing prob- on defense counsel as the sole source of the stating prevent lem, and a steadfast intent to the har- Dissenting Opinion Cavanagh, J. Ante at 604. appellate “parachute.” of an boring very order, these concerns reverse Addressing which is “appellate parachute,” harboring an idea of it can an obvious error where failing to correct say, That efficiently corrected, hardly can be condoned. be sys- appellate our integrity to the does a disservice the effects of run, however, as long tem. In the appellate as other today’s pass, come to decision tempted to avoid difficult courts find themselves simply by that their occurrence ruling issues in a case *17 both been, thus, logic, have and in Orwellian should expect integ- I would was, impermissible, is and system from rity appellate would suffer more of our ill-considered endeavors than it such reflexive and trial of a single from forced to endure being would some substantial defendant, who, because of single to locate a defect in our below, managed failings rules. majority counsel further attacks defense by way quotation in what is later described doing I in the weeds.” find such criti opinion “lying its of this case. It is misplaced cism to be the context question judge that the district made serious without prosecu that the question errors. It is further without present presence that the of even the tor was not prosecutor likely would to have inexperienced most prevent to the difficulties that were been sufficient plea-taking proceedi as a result of the encountered Indeed, participants of all the this matter and ngs.6 present present, and not it parties case, to this both adequately appears that defense counsel was alone in 6 Nonetheless, only ignore failing has chosen not counsel, to, fact, prosecution in favor of an attack on defense but 606, implicitly n it. Ante at 7. condone People v Ward Dissenting Opinion by Cavanagh, J. performing Nydam7 his role. If the weeds of did they only indeed case, exist in this did so because the judge planted prosecutor trial them, and the nowhere to be found to trim them. failures, Such hasty the fear of such weeds, have led this Court to a response, likely bring and ill-considered one more garden very they havoc to the than the weeds feared. Accordingly, I dissent.
*18
Kelly, J., concurred with
Cavanagh,
[7]
People Nydam,
App 476;