Opinion
SC: 163505 COA: 349181
12-29-2021
PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Taurean James CARTER, Defendant-Appellee.
Order
On order of the Court, the application for leave to appeal the August 19, 2021 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court.
Zahra, J. (dissenting).
I would grant the prosecution's application for leave to appeal and reverse the judgment of the Court of Appeals. Defendant entered a valid plea, and the trial court did not abuse its discretion by denying defendant's motion to withdraw his plea.
See People v. Wilhite , 240 Mich.App. 587, 594, 618 N.W.2d 386 (2000) (explaining that a trial court's decision on whether to grant a request for plea withdrawal is reviewed for abuse of discretion).
Defendant pleaded no contest to four counts of third-degree criminal sexual conduct based on several sexual encounters with a 12-year-old girl he met through Facebook. Had defendant not pleaded no contest to the charges, he stood to face a statutory 25-year mandatory minimum sentence.
The trial court sentenced defendant consistently with the plea agreement to serve four concurrent sentences of 10 to 15 years' imprisonment. After two rounds of postsentencing motions and two resentencings, the court ultimately reimposed four concurrent prison terms of 10 to 15 years. Defendant filed a third postjudgment motion, seeking to withdraw his plea and arguing, for the first time, that counsel (who has since died) failed to advise him about the consequences of the Sex Offender Registration Act (SORA). He supported his motion with an affidavit in which he averred, in relevant part, that he "was not advised of the SORA registration requirement at [his] plea hearing." The trial court denied his motion.
MCL 28.721 et seq.
The Court of Appeals initially denied leave to appeal, but after this Court remanded for consideration as on leave granted, a split panel vacated the trial court's order denying defendant's motion to withdraw his plea in an unpublished per curiam opinion. The majority held that defendant's plea was not knowing or voluntary, finding "no evidence that defendant's trial counsel advised him of the registration requirement prior to defendant entering his plea." In reaching this conclusion, the majority admitted it was possible that defense counsel could have informed defendant of the SORA registration requirement off the record but declared that this could not be verified because trial counsel was now deceased. The court further stated that "defendant has sworn in his affidavit that counsel did not advise him of the SORA requirement prior to defendant entering his no contest pleas."
People v. Carter , 505 Mich. 1021, 941 N.W.2d 53 (2020).
People v. Carter , unpublished per curiam opinion of the Court of Appeals, issued August 19, 2021, 2021 WL 3700103 (Docket No. 349181).
Id. at 3.
Id.
Id.
Contrary to the majority opinion, defendant did not aver that counsel never advised him of the SORA registration requirement prior to when he entered his pleas. Rather, defendant averred that counsel did not advise him of that requirement at the plea hearing. Further, there is documented evidence that defendant was aware of the SORA registration requirement prior to entering his plea. The original felony information, which charged defendant with first-degree criminal sexual conduct, contained a SORA notice, informing defendant of the registration requirements. The amended felony information and first page of the presentence investigation report also provided that sex-offender registration was required. Although the latter two documents were not available to defendant until three days after his plea, defendant did not raise the issue at his sentencing (at which the SORA was discussed). If defendant were not already aware of the requirement, he could have challenged it in one of his earlier motions or hearings rather than waiting years, until his third postjudgment motion, to raise it for the first time. Defendant's failure to argue that defense counsel did not advise him of the registration requirement until his third postjudgment motion calls into question the veracity of his claims in this motion, particularly given that he raises this claim only after defense counsel passed away and is no longer available to testify or refute defendant's claim.
The trial court did not abuse its discretion by denying defendant's motion to withdraw his plea, and its decision is supported by the evidence discussed above. I would therefore reverse the judgment of the Court of Appeals and reinstate the trial court's denial order.
Viviano, J., joins the statement of Zahra, J.