Opinion
Docket No. 142323. COA No. 292469.
2012-05-11
PEOPLE of the State of Michigan, Plaintiff–Appellant, v. Joseph Alexander FRANKLIN, Defendant–Appellee.
Prior report: Mich.App., 2010 WL 4630456.
Order
On order of the Court, leave to appeal having been granted and the briefs and oral arguments of the parties having been considered by the Court, we REVERSE the November 16, 2010 judgment of the Court of Appeals. Although the Court of Appeals correctly held that MCR 6.310(B)(2) requires the trial court to “provide the defendant the opportunity to affirm or withdraw the plea,” the Court of Appeals erroneously held that the failure to provide such an opportunity resulted in plain error requiring reversal. First, given this Court's holding in People v. Grove, 455 Mich. 439, 566 N.W.2d 547 (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, the trial court's error in this case was not “plain, i.e., clear or obvious.” People v. Carines, 460 Mich. 750, 763, 597 N.W.2d 130 (1999). However, in the future, such an error will be “plain” because we take this opportunity to clarify that, as both parties agree, Grove has been superseded by MCR 6.310(B). Furthermore, even if the error here was plain and resulted in outcome determinative prejudice, this Court still “must exercise its discretion in deciding whether to reverse.” Carines, 460 Mich. at 763, 597 N.W.2d 130. Under these 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, this Court is exercising its discretion in favor of not reversing the defendant's convictions. “Any other conclusion would be contrary to the rule that defendants cannot ‘harbor error as an appellate parachute.’ ” People v. Pipes, 475 Mich. 267, 278 n. 39, 715 N.W.2d 290 (2006) (citation omitted). We REMAND this case to the Court of Appeals for consideration of the defendant's remaining appellate issues. The Court of Appeals is specifically directed to consider the applicability of Lafler v. Cooper, –––U.S. ––––, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012), to defendant's ineffective assistance of counsel claim.
The Court of Appeals erroneously cited MCR 6.310(B)(2)(a) when it should have cited MCR 6.310(B)(2)(b).
We do not retain jurisdiction. MICHAEL F. CAVANAGH, J., (dissenting).
I would affirm the judgment of the Court of Appeals. In my view, the Court of Appeals did not clearly err by concluding that defendant established that he was entitled to relief under plain-error review. The trial court's failure to comply with the language of the court rule ultimately deprived defendant of his opportunity to affirm his plea and the benefit of his agreement with the prosecution. Accordingly, I respectfully dissent.
MARILYN J. KELLY and HATHAWAY, JJ., join the statement of MICHAEL F. CAVANAGH, J.