6.30 Withdrawal of a Plea
A. Withdrawal of Plea Before Acceptance
A defendant has a right to withdraw any plea until the court accepts the plea on the record. MCR 6.310(A) .
B. Withdrawal of Plea After Acceptance But Before Sentencing
MCR 6.310(B) , which s ets out the requirements for withdrawing a plea after the court accepts it, but before the court imposes sentence, provides:
“Except as provided in [ MCR 6.310(B)(3) ], after acceptance but before sentence,
(1) a plea may be withdrawn on the defendant’s motion or with the defendant’s consent only in the interest of justice, and may not be withdrawn if withdrawal of the plea would substantially prejudice the prosecutor because of reliance on the plea. If the defendant’s motion is based on an error in the plea proceeding, the court must permit the defendant to withdraw the plea if it would be required by [ MCR 6.310](C) .
(2) the defendant is entitled to withdraw the plea if
(a) the plea involves an agreement for a sentence for a specified term or within a specified range, and the court states that it is unable to follow the agreement; the trial court shall then state the sentence it intends to impose, and provide the defendant the opportunity to affirm or withdraw the plea; or
(b) the plea involves a statement by the court that it will sentence to a specified term or within a specified range, and the court states that it is unable to sentence as stated; the trial court shall provide the defendant the opportunity to affirm or withdraw the plea, but shall not state the sentence it intends to impose; or
(c) a consecutive sentence will be imposed and the defendant was not advised at the time of his or her plea that the law permits or requires consecutive sentencing in his or her case.
(3) Except as allowed by the trial court for good cause, a defendant is not entitled to withdraw a plea under [ MCR 6.310(B)(2)(a) or MCR 6.310(B)(2)(b) ] if the defendant commits misconduct after the plea is accepted but before sentencing. For purposes of this rule, misconduct is defined to include, but is not limited to: absconding or failing to appear for sentencing, violating terms of conditions on bond or the terms of any sentencing or plea agreement, or otherwise failing to comply with an order of the court pending sentencing.”
“ MCR 6.310(B) permits [a] defendant to withdraw his [or her] plea before sentencing if withdrawal is in the interest of justice, unless withdrawal of the plea would substantially prejudice the prosecutor because of reliance on the plea.” People v Allen , 498 Mich 954, 955 (2015) (citing MCR 6.310(B)(1) and People v Jackson , 203 Mich App 607, 611-612 (1994), and noting that “[t]he trial court applied an erroneous legal standard when it concluded that there was no legal basis for the court to allow the defendant to withdraw his plea unless there was a defect in the plea-taking process”) (additional citations omitted).
Failure to “‘provide the defendant the opportunity to affirm or withdraw [a] plea’” as required by MCR 6.310(B)(2) constitutes plain error that may require reversal. People v Franklin , 491 Mich 916, 916 (2012). In Franklin , 491 Mich at 916, 916 n 1, the Michigan Supreme Court concluded that the trial court’s failure to comply with MCR 6.310(B)(2)(b) could not be considered plain error, “given [the] holding in People v Grove , 455 Mich 439 (1997), that the trial court could reject the entire plea agreement and subject the defendant to a trial on the original charges over the defendant’s objection[;]” however, the Franklin Court clarified that “Grove has been superseded by MCR 6.310(B) ,” and cautioned that “in the future, such an error will be ‘plain.’” The Court further noted that, even assuming that plain and prejudicial error had occurred in Franklin , 491 Mich 916, “[u]nder [the] circumstances, where the defendant did not just fail to object at sentencing, but also failed to object during the subsequent trial and waived his right to a jury trial,” the Court “[was] exercising its discretion in favor of not reversing the defendant’s convictions.” Id. at 916, citing People v Carines , 460 Mich 750, 763 (1999).
In the absence of a procedural error in receiving the plea, a defendant must establish a fair and just reason for withdrawal of the plea. People v Harris , 224 Mich App 130, 131 (1997). Examples of fair and just reasons for withdrawal include when the plea resulted from fraud, duress, or coercion, People v Gomer , 206 Mich App 55, 58 (1994); when the plea involved erroneous legal advice coupled with actual prejudice to legal rights, People v Jackson , 417 Mich 243, 246 (1983); or when the bargain on which the plea was based was illusory, meaning that the defendant received no benefit from the agreement, Harris , 224 Mich App at 132. If the facts of the case indicate that the plea was voluntary, the plea will be upheld regardless whether the defendant received consideration in return. Id . at 132-133. The defendant’s plea bargain was not illusory where the prosecutor’s offer “to take the 25-year minimum [for certain fourth-time felony offenders under MCL 769.12(1)(a) ] ‘off the table’ in exchange for defendant’s plea [in connection with a bank robbery] . . . was based [on] a misunderstanding of the law. It provided defendant with no actual benefit because he was not subject to MCL 769.12(1)(a) ;” despite that misunderstanding, the defendant “received considerable benefit for his plea” in that “the prosecutor agreed to reduce [his] habitual offender status to third-offense habitual offender,” and “agreed not to charge [him] in connection with a second bank robbery.” People v Pointer-Bey , 321 Mich App 609, 623, 624 (2017).
If the defendant establishes a fair and just reason for withdrawal of the plea, the burden then shifts to the prosecution to establish that substantial prejudice would result from allowing the defendant to withdraw the plea. Jackson , 203 Mich App at 611-612. To constitute substantial prejudice, the prosecution must demonstrate that its ability to prosecute is impeded by the delay. People v Spencer , 192 Mich App 146, 151-152 (1991) (holding that substantial prejudice was not established where trial was set to begin at the time the pleas were entered, and some witnesses were from out of state). In deciding whether a defendant may withdraw a plea, the trial court should bear in mind what is in the interests of justice. Id. at 151-152 (“the fact that [the] defendant’s pleas may have been induced by inaccurate legal advice combined with his refusal or inability to personally recount a sufficient basis to substantiate the[] charges made it incumbent upon the trial court to allow [the] defendant to withdraw his pleas”).
“ MCR 6.310(B)(1) [does] not permit [a] circuit court to vacate [a] defendant’s plea” where the “defendant [has] neither moved for [withdrawal] nor consented to it.” People v Martinez , 307 Mich App 641, 647, 653-654 (2014) (holding that where the defendant entered a guilty plea in exchange for the prosecutor’s agreement not to bring any additional charges regarding contact with the complainant “‘grow[ing] out of [the] same investigation that occurred during [a certain period of years,]’” the “fact that the complainant, after [the] defendant’s plea pursuant to the agreement was accepted, disclosed allegations of additional offenses that were unknown to the prosecutor [did] not create a mutual mistake of fact” permitting the court to vacate the defendant’s plea under either MCR 6.310 or contract principles).
A sentencing judge who decides not to abide by the terms of a sentence agreement ( Cobbs 1 agreement) may not tell a criminal defendant what sentence might be imposed before the defendant decides whether to withdraw a guilty plea. MCR 6.310(B)(2)(b) ; People v Williams , 464 Mich 174, 180 (2001). 2
A trial court may not sua sponte vacate an accepted plea without the defendant’s consent, even if the defendant indicates that he or she is innocent. People v Strong , 213 Mich App 107, 112 (1995).
“When reviewing whether the factual basis for a plea [is] adequate, th[e] [c]ourt considers whether the factfinder could find the defendant guilty on the basis of the facts elicited from the defendant at the plea proceeding.” People v Fonville , 291 Mich App 363, 377 (2011).
“‘A factual basis to support a plea exists if an inculpatory inference can be drawn from what the defendant has admitted. This holds true even if an exculpatory inference could also be drawn and the defendant asserts that the latter is the correct inference. Even if the defendant denies an element of the crime, the court may properly accept the plea if an inculpatory inference can still be drawn from what the defendant says.’” Id. at 377, quoting People v Thew , 201 Mich App 78, 85 (1993) (additional and internal citations omitted).
Doubt about the veracity of a defendant’s nolo contendere plea, by itself, is not an appropriate reason to permit the defendant to withdraw an accepted plea before sentencing. People v Patmore , 264 Mich App 139, 150 (2004). When recanted testimony provides a substantial part of the factual basis underlying a defendant’s nolo contendere plea, the defendant must prove by a preponderance of credible evidence that the original testimony was untruthful, in order to constitute a fair and just reason for allowing the defendant to withdraw his or her plea. Id. at 152. If the defendant meets the burden, the trial court must then determine whether other evidence is sufficient to support the factual basis of the defendant’s plea. Id . If the defendant fails to meet the burden, or if other evidence is sufficient to support the plea, then the defendant has failed to present a fair and just reason to warrant withdrawal of his or her plea. Id .
When a plea is taken and all of the required elements are not satisfied, the case should be remanded to allow the prosecution to establish the missing elements. See People v Mitchell , 431 Mich 744, 749-750 (1988). If the prosecution is able to do so and there is no contrary evidence, the defendant’s conviction should stand. Id. at 750. However, if the prosecution is unable to establish that the defendant committed the offense, the trial court must set aside the defendant’s conviction. Id . If contrary evidence is produced, the matter should be treated as a motion to withdraw the guilty plea, and the trial court must exercise its discretion to decide the matter. Id . If the motion is granted, the trial court must set aside the conviction. Id .
C. Withdrawal of Plea After Sentencing
“ MCR 6.310(C) permits a defendant to withdraw a guilty plea after sentencing only 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.” People v Sanford , 495 Mich 989, 989 (2014). MCR 6.310(C) provides:
“(1) The defendant may file a motion to withdraw the plea within the time for filing an application for leave to appeal under MCR 7.205(A)(2)(a) and [ MCR 7.205(A)(2)(b)( i )-( iii ) ].
(2) Thereafter, the defendant may seek relief only in accordance with the procedure set forth in subchapter 6.500.
(3) 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 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.” 3
“‘A defendant seeking to withdraw his or her plea after sentencing must demonstrate a defect in the plea-taking process.’” Sanford , 495 Mich at 989-990, quoti ng People v Brown , 492 Mich 684, 693 (2012).
The trial court abused its discretion in denying the defendant’s motion to withdraw his plea after sentencing where “there [were] multiple proposed plea agreements and hearings,” because the record showed “a lack of clarity with regard to essential sentencing features.” People v Brinkey , 327 Mich App 94, 95 (2019) (although strict compliance with MCR 6.302 is not essential, “the trial court’s noncompliance [was] serious in nature” because “the trial court made no [apparent] effort to ensure that defendant actually knew and understood” the conditions he was pleading guilty under).
“[In general,] criminal defendants may not withdraw a guilty plea on the ground that they were unaware of the future collateral or incidental effects of the initial valid plea.” People v Haynes , 256 Mich App 341, 349 (2003). However, defense counsel is constitutionally required to inform his or her client that a plea “may carry a risk of adverse immigration consequences,” e.g., deportation. Padilla v Kentucky , 559 US 356, 369 (2010). 4
“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,” and MCR 6.310(C) permits a defendant who is not so apprised to elect either to allow his or her plea and sentence to stand or to withdraw the plea. Brown , 492 Mich at 687. In Brown , 492 Mich at 687, the defendant pleaded guilty, as a second-offense habitual offender under MCL 769.10 , to second-degree home invasion. The defendant was advised at his plea hearing that the maximum sentence for second-degree home invasion was 15 years in prison; however, the defendant was subsequently sentenced, as an habitual offender, to a maximum prison term of more than 22 years. Brown , 492 Mich at 687-688. The Michigan Supreme Court concluded that MCR 6.302(B)(2) requires that “before pleading guilty, a defendant must be notified of the maximum possible prison sentence with habitual-offender enhancement, because the enhanced maximum becomes the ‘maximum possible prison sentence’ for the principal offense.” Brown, 492 Mich at 693-694, overruling Peopl e v Boatman , 273 Mich App 405, 406-410 (2006). The Brown Court additionally held that “ MCR 6.310(C) . . . 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.” Brown , 492 Mich at 698.
D. Evidentiary Hearings
“[W]here the record raises a question of fact about the voluntariness of . . . a plea [given as part of a package-deal plea offer], a trial court must hold an evidentiary hearing to consider the totality of the circumstances in determining whether a defendant’s plea was involuntary.” Samuels , ___ Mich at ___. In Samuels , the prosecutor offered defendant and his twin brother a package-deal plea offer that was contingent on both defendants accepting the plea offer. Id . at ___. Although defendant initially objected to the package-deal plea offer at the plea hearing, stating that it was “not right,” he apparently “changed his mind once his twin brother’s trial counsel indicated that his twin brother wished to plead guilty because defendant then indicated that he also wished to plead guilty.” Id . at ___. On appeal, the Samuels Court observed that “certain aspects of package-deal plea offers might pose a greater danger of inducing false pleas than individual plea offers because of the presence of extraneous factors.” Id . at ___. However, trial courts are not required to “police the voluntariness of plea offers at the plea colloquy[.]” Id . at ___ (stating that “package-deal plea offers are [not] so unique and so coercive that they must always be singled out for special inquiry before a plea can be taken”). Instead, “our traditional rules governing evidentiary hearings apply.” Id . at ___.
A trial court must hold an evidentiary hearing to determine a plea’s voluntariness “‘when the record contains some substantiated allegation that raises a question of fact as to the defendant’s claim that his or her guilty plea was involuntary because it was entered on the basis of a promise of leniency to a relative, and when the defendant’s testimony at the plea hearing does not directly contradict that allegation[.]’” Id . at ___, quoting and aff’g in part People v Samuels , 339 Mich App 664, 674 (2021). “This is not to say that a trial court need not consider the special nature of a package-deal plea offer at the plea colloquy.” Id . at ___. “Due-process concerns mandate that a trial court ensure that a plea is made voluntarily,” as does MCR 6.302(A) . Samuels , ___ Mich at ___. “This may require a consideration of whether a package-deal plea offer is unduly coercive under the facts of a specific case [if] a defendant indicates that such a plea offer has a bearing on the defendant’s decision to plead guilty.” Id . at ___ (“declin[ing] to hold that, as a matter of law, a trial court must sua sponte engage in a special inquiry during the plea hearing whether the mere existence of a package-deal plea offer renders the plea involuntary”).
Courts must consider several non-exhaustive factors “in a totality-of-the-circumstances analysis when determining whether a package-deal plea offer has rendered a plea involuntary.” Id . at ___ (adopting the test set forth by the California Supreme Court in In re Ibarra , 34 Cal 3d 277 (1983)). 5
The Samuels Court held that “the nature of the relationship between codefendants is also a relevant factor to be considered at the evidentiary hearing.” Id . at ___ (noting that application of the Ibarra factors is not limited to familial relationships). “It is of course relevant whether the prosecution has probable cause to prosecute the third parties in a package-deal plea offer[.]” Id . at ___. “Guided by the Ibarra factors, a court should consider the totality of the circumstances and determine whether a defendant’s plea was involuntary, i.e., whether the plea was the product of an essentially free and unconstrained choice by its maker, or whether the defendant’s will has been overborne and his capacity for self-determination critically impaired . . . .” Id . at ___ (quotation marks and citations omitted).
The Samuels Court determined that there was “a question of fact as to whether defendant voluntarily waived his due-process rights.” Id . at ___ (observing that “[t]he plea colloquy transcript reveals that defendant indicated a desire to go to trial that only changed after his twin brother stated that he wished to take the plea offer,” and “defendant sought to withdraw his plea before sentencing and agreed with the trial court that the package-deal plea offer was coercive”). “Further, defendant’s plea-hearing testimony [did] not directly contradict his claim that his plea was involuntarily made.” Id . at ___ (”Although the record suggests that the prosecution had probable cause to charge defendant’s twin brother, that does not end the inquiry under a totality-of-the-circumstances analysis.”). In sum, the Samuels Court held that “a defendant may be entitled to an evidentiary hearing on the question of voluntariness where the record raises a question of fact as to whether the defendant’s plea was induced by a promise of leniency to a third party.” Id . at ___. “At such an evidentiary hearing, the trial court must conduct a totality-of-the-circumstances inquiry, applying the non-exhaustive Ibarra factors where relevant.” Id . at ___ (“remand[ing] the case to the trial court to hold such an evidentiary hearing”).
E. Divisibility of Multiple Pleas Arising From Single Plea Agreement
In People v Blanton , 317 Mich App 107, 121 (2016), the parties disputed whether, when a defendant pleads guilty to multiple charges under a single plea agreement, MCR 6.310(C) “allows [the] defendant to withdraw his [or her] entire plea or only his [or her] plea to” a charge affected by a defect in the plea-taking process. Before accepting the defendant’s guilty plea to charges of felony-firearm and two other offenses, the trial court in Blanton , 317 Mich App at 120, failed to advise the defendant of the mandatory minimum sentence (or consecutive nature of the sentence) applicable to the felony-firearm charge. After sentencing, the defendant moved to withdraw his guilty plea in its entirety under MCR 6.310(C) based on the defect in the plea proceeding with respect to the felony-firearm charge. Blanton , 317 Mich App at 113. The trial court agreed, rejecting the prosecution’s assertion that the defendant should be permitted to withdraw only the plea of guilty of felony-firearm. Id . at 114. Noting that there was no binding Michigan precedent on point, the trial court cited State v Turley , 149 Wash 2d 395 (2003), for the proposition that “‘plea agreements are “package deals” and indivisible,’” and that the defendant was therefore not limited to withdrawing only the “‘“defective” portion of his plea.’” Blanton , 317 Mich App at 116-117 (citation omitted).
The Court of Appeals affirmed. “Given that there was no precedential authority on [the] issue in Michigan, . . . the trial court [did not] abuse[] its discretion in applying the contractual approach set forth in Turley [, 149 Wash 2d 395,]” and in concluding that its failure to advise the defendant of the full nature of the penalty for felony-firearm, in violation of MCR 6.302(B)(2) , permitted him to withdraw his guilty pleas to all three charges. Blanton , 317 Mich App at 125. “‘[C]ontractual analogies may be applied in the context of a plea agreement’ if to do so would not ‘subvert the ends of justice.’” Id ., quoting People v Swirles (After Remand) , 218 Mich App 133, 135 (1996). “Given the nature of the plea-bargaining process in Michigan where both parties often tend to negotiate a ‘package deal,’ . . . adherence to the [contractual] approach set forth in Turley would not ‘subvert the ends of justice.’” Blanton , 317 Mich App at 122, 126 (noting that the “references in MCR 6.302 and MCR 6.310 to the singular terms ‘plea’ and ‘plea proceeding’ [did] not necessarily resolve the issue”) (citations omitted). The Court noted that “the objective facts reveal[ed] an intent by the prosecution and [the] defendant to treat the plea agreement as indivisible” where “[the] defendant was charged with multiple offenses in a single Information; he negotiated with the prosecution to allow him to plead guilty to three charges contemporaneously in exchange for the dismissal of the remaining charges and the habitual offender enhancement; a single document contained the terms of the plea agreement; and the trial court accepted [the] defendant’s pleas to all three charges at one hearing.” Blanton , 317 Mich App at 126, citing Turley , 149 Wash 2d at 400. Accordingly, “the trial court did not abuse its discretion in allowing [the] defendant to withdraw his plea in its entirety rather than only partially because the plea agreement [was] indivisible.” Blanton , 317 Mich App at 126.
Because “there was a defect in the plea-taking process [when] no one informed [defendant] that her conviction of unlawfully imprisoning a minor would require her to register under [the Sex Offenders Registration Act],” “the trial court abused its discretion by denying [defendant’s] motion to withdraw her plea in its entirety,” and by “sever[ing] [her] convictions and permitt[ing] her to withdraw her guilty plea only as to the unlawful imprisonment charge.” People v Coleman , 327 Mich App 430, 436, 444 (2019) (defendant “should have been afforded the right to withdraw her entire plea based upon the defect in the plea-taking process” because the “plea was clearly intended as a package deal”).
F. Effect of Withdrawal or Vacation of Plea
“If a plea is withdrawn by the defendant or vacated by the trial court or an appellate court, the case may proceed to trial on any charges that had been brought or that could have been brought against the defendant if the plea had not been entered.” MCR 6.312 . See also People v Johnson , 197 Mich App 362, 364 (1992) (citing MCR 6.312 and holding that “[w]hen [the] defendant withdrew his guilty plea, he reopened [the] matter to any of the charges which had been brought or could have been brought against him at the time his plea of guilty was entered”).
G. Inadmissibility of Withdrawn Plea
Ordinarily, evidence of a withdrawn or vacated plea and statements made during the plea proceedings are not admissible in any civil or criminal proceedings. MRE 410 . 6 However, criminal defendants may waive MRE 410 protections, so long as they are appropriately advised and the statements admitted into evidence are voluntarily, knowingly, and understandingly made. People v Stevens , 461 Mich 655, 656-657, 661-663, 668-670 (2000) (holding that where the defendant acknowledged his guilt during plea discussions arising out of proceedings pursuant to an investigative subpoena, but the plea was ultimately not entered, the statements were “not rendered inadmissible by MRE 410 , and, if otherwise admissible, [could] be introduced in the prosecutor’s case in chief”); see also People v Gash , ___ Mich App ___, ___ (2024) (holding that defendant “unequivocally waiv[ed] the protections afforded to him by MRE 410(a)(1) ” when he “signed a special consideration agreement with the prosecution in which he agreed to plead guilty in exchange for a lesser sentence” and “consented to statements he made during his guilty plea being used against him in future proceedings”).
H. Appealing a Guilty Plea 7
1. Preservation of Issues for Appeal
“A defendant convicted on the basis of a plea may not raise on appeal any claim of noncompliance with the requirements of the rules in . . . subchapter [ 6.300 ], or any other claim that the plea was not an understanding, voluntary, or accurate one, unless the defendant has moved to withdraw the plea in the trial, court, raising as a basis for withdrawal the claim sought to be raised on appeal.” MCR 6.310(D) . See also People v Gaines , 198 Mich App 130, 131 (1993) (holding that “[the] defendant’s challenge concerning the validity of his . . . plea [was] not properly before [the Court of Appeals] because he did not move to withdraw the plea in the trial court”) (citations omitted).
MCR 6.310(D) barred review of the defendant’s argument on appeal where the defendant failed to file a motion to withdraw his guilty plea but challenged the factual basis for his plea on appeal. People v Baham , 321 Mich App 228, 234, 235 (2017) (holding that a challenge to the factual basis of a plea implicates the accuracy of the plea). However, “a claim of ineffective assistance of counsel can serve as a basis for relief relative to a plea despite a failure to comply with MCR 6.310 .” Baham , 321 Mich App at 235.
2. Advice of Right to Counsel
“[I]ndigent defendants who plead guilty or nolo contendere in a Michigan court have a federal constitutional right to the appointment of appellate counsel with regard to first-tier review in th[e] Court [of Appeals].” People v James , 272 Mich App 182, 188-189 (2006), citing Halbert v Michigan , 545 US 605 (2005).
“(2) In a case involving a conviction following a plea of guilty or nolo contendere, immediately after imposing sentence, the court must advise the defendant, on the record, that
(a) the defendant is entitled to file an application for leave to appeal,
(b) if the defendant is financially unable to retain a lawyer, the court will appoint a lawyer to represent the defendant on appeal, and
(c) the request for a lawyer must be filed within 42 days after sentencing.
(3) The court also must give the defendant a request for counsel form containing an instruction informing the defendant that the form must be completed and filed within 42 days after sentencing if the defendant wants the court to appoint a lawyer. The court must give the defendant an opportunity to tender a completed request for counsel form at sentencing if the defendant wishes to do so.
(4) A request for counsel must be deemed filed on the date on which it is received by the court or the Michigan Appellate Assigned Counsel System (MAACS), whichever is earlier.”
A legally erroneous instruction (e.g., that by pleading no contest, the defendant waived his right to court-appointed counsel except under certain circumstances) under MCR 6.425(F)(2) and Halbert , 545 US at 605, may be harmless if the advice-of-rights form the defendant receives at sentencing informs him or her of the right to appointed counsel under all circumstances, regardless of whether the conviction is plea- or trial-based. People v Frazier , 485 Mich 1044, 1044 (2010), citing MCR 6.425(F)(3) . The Court noted, however, that “trial judges should take care to advise defendants in plea proceedings of their continuing right to court-appointed counsel if they cannot afford counsel.” Frazier , 485 Mich at 1044.
See MCR 6.425(G) for more information on the appointment of appellate counsel, preparation of transcripts, and the scope of appellate counsel’s responsibilities.
I. Standard of Review
A trial court’s decision whether to grant a motion to withdraw a plea is reviewed for an abuse of discreti on. People v Brown , 492 Mich 684, 688 (2012).
J. Defects in Previous Plea-Based Conviction May Not Necessarily Invalidate Its Use to Enhance Future Offenses
The Michigan Supreme Court refused to permit a defendant to withdraw his plea of guilty of operating a motor vehicle while under the influence of liquor, second offense (OUIL 2d), 14 months after the plea was entered and after he was charged with OUIL 3d, where “retained counsel, in the absence of the prosecutor, knowingly entered a woefully defective plea at arraignment without bringing the defects to the court’s attention” in order to “preserve[] the strategic possibility of setting aside the plea if [the] defendant were ever charged with another OUIL offense.” People v Ward , 459 Mich 602, 604-605 (1999) (holding that such tactics constituted a “transparent manipulation of the system” and refusing to “allow defense counsel to harbor plain error as a parachute in the event of a subsequent OUIL charge”).
1 People v Cobbs , 443 Mich 276 (1993).
2 See Section 6.4(A)(2) for discussion of Cobbs pleas.
3 A motion to withdraw a plea after sentencing may be deemed presented for filing on the date it is deposited into the institution’s outgoing mail if the appellant is pro se, is incarcerated in prison or jail, and meets the other requirements of MCR 1.112 . The motion is deemed timely if deposited on or before the filing deadline. MCR 1.112 .
4 “[S]tate courts are bound by the decisions of the United States Supreme Court construing federal law[.]” Abela v Gen Motors Corp , 469 Mich 603, 606 (2004). However, because Padilla , 559 US 356, “announced a ‘new rule[,]’” it does not apply retroactively on collateral review. Chaidez v United States , 568 US 342, 344 (2013). See also People v Gomez , 295 Mich App 411, 413-414, 418-419 (2012) (holding that “the new rule of criminal procedure announced in Padilla [, 559 US 356,] has prospective application only[]” under both federal and state rules of retroactivity, and that the defendant, who entered a no-contest plea to a drug-possession charge and was subsequently notified that his conviction rendered him subject to deportation, was not entitled to relief from judgment based on Padilla , 559 US 356, which was decided several years after he completed his sentence). See Section 6.4(D) for discussion of ineffective assistance of counsel during sentence negotiations.
5 See Section 6.6 for detailed information about the Ibarra factors.
6 See Section 6.9 for discussion of MRE 410 .
7 See Section 6.10 for a thorough discussion of appeals from plea-based convictions.