Opinion
No. 111823
June 22, 1999.
Defendant applied for leave to appeal from the March 12, 1998 decision of the Court of Appeals denying his delayed application for leave to appeal to that court. On March 9, 1999, this Court ordered the prosecutor to answer the application. We have received and considered the answer, and in lieu of granting the application for leave to appeal, we REMAND this case to the Court of Appeals for consideration as on leave granted. MCR 7.302(F)(1). Without limitation, the Court shall consider: (1) whether the trial court erred in setting aside defendant's guilty plea; (2) whether defendant was denied his right to counsel because he was not represented by counsel during the hearing at which the trial court made its ruling; and (3) whether, under these circumstances, defendant knowingly and voluntarily entered his second guilty plea.
The motion to appoint counsel is DENIED as moot in light of the original appointment order authorizing counsel to represent defendant in proceedings before the Court of Appeals.
Cavanagh and Kelly, JJ., would remand the case to the Court of Appeals as on leave granted, with a directive to consider: (1) whether the trial court erred by ruling that the defendant's testimony at his co-defendant's trial contradicted the defendant's own previous guilty plea testimony, so as to constitute a violation of his original plea agreement; (2) whether, under MCR 6.310(C), the trial court may not vacate a plea unless the prosecutor moves to have the plea vacated, or whether the trial judge may act sua sponte; (3) whether vacating the defendant's original guilty plea without the defendant's attorney being present and without the defendant having an opportunity to consult with his attorney violated defendant's right to counsel; and (4) whether, in these circumstances, the defendant's second guilty plea was a knowing and voluntary plea.