Opinion
355416
10-27-2022
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. MATTHEW LAWRENCE FURMAN, Defendant-Appellant.
UNPUBLISHED
Wayne Circuit Court LC No. 19-007623-01-AR
Before: JANSEN, P.J., and O'BRIEN and HOOD, JJ.
HOOD, JUDGE
I respectfully dissent. It is uncontested that the district court made two errors in this case. First, during defendant Matthew Lawrence Furman's plea colloquy, it failed to ask whether the plea was the result of outside or undisclosed promises. See MCR 6.302(C)(4); MCR 6.610(F)(6)(a). When Furman later moved to withdraw his plea, claiming that his plea was based on his understanding, and his attorney's undisclosed promise, that he would receive a deferred sentence under MCL 771.1, the district court made a second error: it granted the motion to withdraw his plea without explanation.
Acknowledging that these two errors occurred, the question we now face is what, if anything, we should do to correct them. Instead of reinstating an obviously defective plea, I would reverse and remand to the district court for an evidentiary hearing to determine if Furman's substantial rights were violated.
I. BACKGROUND The majority opinion accurately describes the factual and procedural background of this case.
II. STANDARD OF REVIEW
Here, where this Court is reviewing an appeal from the district court to the circuit court, this Court stands in the shoes of the circuit court. See People v McBride, 204 Mich.App. 678, 681; 516 N.W.2d 148 (1994). This Court applies the same standard of review as the circuit court to the district court's decision. Id.
"A trial court's ruling on a motion to withdraw a plea is reviewed for an abuse of discretion." People v Al-Shara, 311 Mich.App. 560, 566; 876 N.W.2d 826 (2015) (citation omitted). "An abuse of discretion occurs when the trial court's decision falls outside the range of principled outcomes. A trial court also necessarily abuses its discretion when it makes an error of law." Id. (citations omitted). We review the interpretation of statutes and court rules de novo. People v Kimble, 470 Mich. 305, 308-309; 684 N.W.2d 669 (2004).
III. LAW AND ANALYSIS
Furman argues the circuit court erroneously reversed the district court's order allowing the withdrawal of his no contest plea. I agree that the district court abused its discretion by failing to state the basis for its decision to grant Furman's motion to withdraw, failing to make findings on how the errors underlying the withdrawal affected Furman's substantial rights, and failing to make findings on how the withdrawal prejudiced the prosecution, if at all. Instead of affirming the circuit court's decision to reinstate an obviously defective plea, I would remand to the district court for the district court to address how the defective plea affected Furman's substantial rights.
The majority aptly describes the legal standards for accepting an "understanding, voluntary, and accurate" no-contest plea, see MCR 6.302(A), and for a criminal defendant's motion to withdraw or set aside his plea on the basis of an error in the plea proceedings, see MCR 6.310(C)(3); MCR 6.610(F)(8)(b). Critically, a trial court is only required to grant a motion to withdraw when it determines that a deviation in the plea taking process affecting substantial rights has occurred. See MCR 6.610(F)(8)(b).
Furman makes two arguments. First, he argues his counsel was ineffective because he incorrectly promised him a delayed sentence under MCL 771.1. Second, he argues that the district court failed to follow the plea-taking process by not asking whether "anyone has promised [him] anything beyond what is in the plea agreement." To succeed on either argument, Furman must show that his substantial rights were affected. The legal question of whether Furman's substantial rights were affected turns on a single factual question: was there actually an outside promise? Without the answer to this question-the question the district court was supposed to ask-Furman cannot succeed on his argument, and we cannot have confidence in the integrity of his conviction. I would remand for a hearing to address this issue. I address each of Furman's two arguments below.
A. DEFECTIVE PLEA COLLOQUY
Beginning with Furman's unpreserved claim of error related to the defective plea colloquy, I would remand to the district court for an evidentiary hearing under MCR 7.216(A)(5). Furman has satisfied the first two prongs of the plain error analysis, but we are unable to address the third prong because the nature of the error created a factual gap in the record. I would, therefore, remand to the district court for fact finding. See MCR 7.216(A)(5).
Furman's argument regarding his defective plea is unpreserved and therefore subject to plain error analysis. See MCR 6.310(D) (providing that a defendant preserves issues related to a plea withdrawal when "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"); see also People v Armisted, 295 Mich.App. 32, 45-46; 811 N.W.2d 47 (2011). In order to receive relief under the plain-error rule, a defendant bears the burden of proving that: (1) an error occurred, (2) the error was plain, i.e., clear or obvious, and (3) the plain error affected substantial rights, i.e., prejudiced defendant by affecting the outcome of the proceedings. People v Hanks, 276 Mich.App. 91, 92; 740 N.W.2d 530 (2007), quoting People v Carines, 460 Mich. 750, 763; 597 N.W.2d 130 (1999). "An error affects substantial rights when it impacts the outcome of the lower-court proceedings." People v Burkett, 337 Mich.App. 631, 635; 976 N.W.2d 864 (2021) (quotation marks and citation omitted). "Reversal is warranted only when the error resulted in the conviction of an actually innocent defendant or seriously affected the fairness, integrity, or public reputation of judicial proceedings independently of the defendant's innocence." People v Lockridge, 498 Mich. 358, 393; 870 N.W.2d 502 (2015).
MCR 6.310(D) bars a defendant convicted on the basis of a plea from raising on appeal any claim of noncompliance with the court rules unless the defendant has first moved to withdraw his plea with the trial court on the same basis. Because Furman moved to withdraw his plea on the basis of an undisclosed outside promise, without explicitly arguing that the district court failed to ask about an undisclosed promise, I would conclude that the issue is subject to plain-error analysis rather than completely barred. Had the district court made sufficient findings related to the motion to withdraw his plea, the defect in the plea colloquy would have been apparent. I would not bar Furman from raising this issue because of the district court's errors in addressing Furman's motion that raised substantially similar issues with the plea. See Peterman v Dep't of Natural Resources, 446 Mich. 177, 183; 521 N.W.2d 499 (1994) (indicating that a party should not be penalized by a trial court's failure to address an issue).
Regarding the first prong of the plain error analysis, I agree with the majority that the district court did make an error during the plea colloquy when it failed to ask if the plea was the result of outside promises or inducements. See MCR 6.302(C)(4) ("The court must ask the defendant . . .whether anyone promised anything beyond what is in the plea agreement."); MCR 6.610(F)(6)(a). Because the district court was required to ask this question, and it did not, Furman has satisfied the first prong of the plain error analysis. As discussed below, the nature of the error affects this Court's ability to assess whether the error prejudiced him.
Having concluded that the error occurred, I would also conclude that the error was "plain," or "clear and obvious" for two reasons. First, the requirement that the district court ask a defendant about outside promises or inducements related to the plea is plainly stated in the court rules. See MCR 6.302(C)(4)(a); MCR 6.610(F)(6)(a). Second, separate from the explicit requirement in the court rules, the district court was required to ensure that the plea was knowingly, intelligently, and voluntarily made. This mandate requires the district court to inquire if there are outside threats, promises, or inducements that have led to the plea, separate from any explicit direction in the court rules. In short, the error was clear and obvious.
The obviousness of this error undercuts the majority's focus on the fact that Furman could have raised this argument in his motion to withdraw or during the circuit court appeal. Admittedly, Furman should have raised the issue of the defect in the plea colloquy separate from his argument that there was an outside promise. But the issues are inseparable. Both the district court, when addressing Furman's motion to withdraw, and the circuit court, when addressing the prosecution's appeal, would have discovered the obvious defect in the plea colloquy upon a cursory review of the plea transcript. If Furman's ineffective assistance of counsel claim were based on something else, his failure to point out the defect earlier would carry more weight. Here, his claim of ineffectiveness is based on an outside promise. The first step in addressing this claim would be to look to the answer to the required question during the plea colloquy.
The third prong of the plain error analysis, substantial rights, is complicated due to the nature of the error. To demonstrate that the error affected his substantial rights, a defendant must show that the error affected the outcome of the proceedings. See Armisted, 295 Mich.App. at 46. Here, the answer to this question is necessarily tied to the fact question of whether Furman actually was promised deferred sentencing under MCL 771.1 either by his lawyer or by someone else. Ordinarily, Furman would have been tasked with presenting evidence sufficient to rebut his own sworn statements, made at the plea hearing, that the plea was not the result of outside promises or inducements. See MCR 6.302(C)(4)(a); see also People v Samuels, Mich. App,; N.W.2d (2021) (Docket No. 353302); slip op at 5 ("[A] trial court is generally barred at the evidentiary hearing from considering testimony or affidavits inconsistent with statements made during the plea hearing ....") (quotation marks and citation omitted). The court, however, may allow a defendant to withdraw a plea on the basis of promises of leniency if the record, beyond a defendant's postconviction statements, supports the defendant's claims. People v Jackson, 203 Mich.App. 607, 612-613; 513 N.W.2d 206 (1994) (citation omitted).
Here, however, the court neglected to inquire whether there were outside promises, so Furman never made such sworn statements. Aside from the plea agreement, there is no other information in the record that supports or refutes Furman's claim.
Furman attached several exhibits to his brief that are outside of the record: (1) a March 30, 2020 decision by the labor arbitration tribunal; (2) Furman's polygraph report; and (3) Furman's affidavit. A defendant may be entitled to withdraw his or her plea when the defendant presents "credible evidence that the plea was the product of fraud, duress, or coercion." People v Patmore, 264 Mich.App. 139, 152; 693 N.W.2d 385 (2004) (quotation marks and citation omitted). This Court's function is not to act as factfinder, see, e.g., People v Bulmer, 256 Mich.App. 33, 36; 662 N.W.2d 117 (2003), and this Court may not consider an expanded record on appeal, People v Powell, 235 Mich.App. 557, 561 n 4; 599 N.W.2d 499 (1999) ("[I]t is impermissible to expand the record on appeal.").
The prosecution's argument that the district court "substantially complied" with the requirements for a plea colloquy is misplaced. The prosecution cites Al-Shara, 311 Mich.App. at 560, in support of the position that this Court should review the district court's deviation from the court rules related to plea taking under the doctrine of substantial compliance. See id. at 571-572. I acknowledge that the district court was not required to follow "talismanic" compliance with MCR 6.302(C)(4)(a). See id. at 572. This means that the district court could have asked Furman whether his plea was the result of outside promises in any way it chose. It does not mean that the court could dispense with asking this question altogether. Although the district court complied with other aspects of MCR 6.302, the critical inquiry on outside promises is wholly absent. Without these direct questions, or a signed advice of rights covering the same questions, the record is silent on whether an outside promise or threat induced Furman's plea.
The district court's error during the plea colloquy was compounded by the district court's laconic decision to grant Furman's motion to withdraw. It is unclear from the record whether the district court granted the motion to withdraw because of the error in the plea colloquy, the claim of ineffective assistance of counsel, or some other reason. More critically, the district court failed to make findings related to whether there was evidence of an outside promise, whether the errors affected Furman's substantial rights, and whether the prosecution would be prejudiced by the withdrawal.
Without these findings and conclusions, this Court cannot confidently assess whether there was an outcome-determinative error. This leaves two options: (1) affirm the circuit court's decision that the district judge abused the court's discretion because of the insufficiency of its findings; or (2) remand for the collection of additional evidence.
In my view, a remand for an evidentiary hearing before the district court under MCR 7.216 is the best of these two options. It protects Furman's right to a fair process. It does not prejudice the prosecution anymore than the prosecution has already been prejudiced by the delay during appeal. And it protects the interests of the parties, the Court, and the public in ensuring the integrity of Furman's conviction. For these reasons, I would remand for an evidentiary hearing.
B. INEFFECTIVE ASSISTANCE OF COUNSEL
If we were to remand to the district court to hold an evidentiary hearing in order to address whether the defective plea colloquy affected Furman's substantial rights, the district court would effectively answer the evidentiary questions that bear on Furman's ineffective assistance of counsel claim.
Furman claims the circuit court erred in reversing the district court's order because he was denied effective assistance of counsel when counsel allegedly assured Furman he would receive a delayed sentence under MCL 771.1. Unlike Furman's other argument, this argument is preserved because Furman effectively made the same argument in the motion to withdraw his plea. See MCR 6.310(D). With respect to Furman's preserved issue, "[t]he denial of effective assistance of counsel is a mixed question of fact and constitutional law, which are reviewed, respectively, for clear error and de novo." People v Brown, 279 Mich.App. 116, 140; 755 N.W.2d 664 (2008). "A decision is clearly erroneous if, although there is evidence to support it, this Court is left with a definite and firm conviction that a mistake has been made." People v Howard, 233 Mich.App. 52, 54; 595 N.W.2d 497 (1998) (quotation marks and citation omitted).
In his motion to set aside his plea, Furman did not explicitly raise the ineffective assistance issue in the district court. Rather, Furman's motion to set aside the plea describes trial counsel assuring him that he would receive a delayed sentence under MCL 771.1, but it does not reference ineffective assistance of counsel. This is sufficient to preserve this issue.
As the majority correctly notes, Furman did not move the district court or the circuit court for an evidentiary hearing under People v Ginther, 390 Mich. 436, 443; 212 N.W.2d 922 (1973). Rather, he made his first request for a Ginther hearing in his appeal to this Court; therefore, this Court's review is limited to mistakes apparent from the record. See People v Mack, 265 Mich.App. 122, 125; 695 N.W.2d 342 (2005). That is, unless we remand for such a hearing under MCR 7.216(A)(5) (providing that the Court, in its discretion, and on the terms it deems just, may remand the case for the trial court to take additional evidence).
Due to the defective plea colloquy, without factfinding regarding Furman's assistance of counsel, I cannot confidently conclude that Furman's right to counsel was not violated. The majority well describes the legal standards for ineffective assistance of counsel claims. Put simply, a defendant must show: "(1) counsel's performance fell below an objective standard of reasonableness and (2) but for counsel's deficient performance, there is a reasonable probability that the outcome would have been different." People v Trakhtenberg, 493 Mich. 38, 51; 826 N.W.2d 136 (2012); see also People v Corteway, 212 Mich.App. 442, 445; 538 N.W.2d 60 (1995) ("Guilty pleas have been found to be involuntary or unknowing on the basis of ineffective assistance of counsel where defense counsel failed to explain adequately the nature of the charges or the consequences of the guilty plea.") (Citations omitted).
For the same reasons that we are unable to adequately answer whether the district court's defective plea colloquy affected Furman's substantial rights, we are unable to determine whether his counsel was ineffective. The district court did not make sufficient findings. In granting Furman's motion to withdraw the plea, the district court stated: "But [the plea] was placed on the record by the Prosecutor and everybody understood it. All right. How much time do you need to prepare for a jury trial?" I agree with the majority that from this statement, it is unclear whether the district court concluded Furman was denied effective assistance of counsel.
Again, the majority correctly notes that ordinarily it would be appropriate to remand the issue to the district court for an evidentiary hearing to establish a factual basis whether Furman was denied effective assistance of counsel. Furman requests the same in his brief to this Court. But, the prosecution correctly notes that this was the first time Furman made such a request. I acknowledge that Furman did not move this Court to remand under MCR 7.211(C)(1)(a)(ii). MCR 7.211(C)(1)(a)(ii) states: "The appellant may move to remand to the trial court. The motion must identify an issue sought to be reviewed on appeal and show that development of a factual record is required for appellate consideration of the issue." Nonetheless, this Court has authority, on terms it deems just, to "remand the case to allow additional evidence to be taken." MCR 7.216(A)(5). If we were to exercise that authority to remand on the closely related issue of whether the district court's failure to comply with MCR 6.302 and MCR 6.610 affected Furman's substantial rights, as described earlier, I would also direct the district court to make fact findings sufficient to address Furman's ineffective assistance of counsel claim.
IV. CONCLUSION
For the reasons stated above, I would remand for the district court to conduct an evidentiary hearing. On remand, I would direct the district court to make fact findings regarding whether an outside promise induced Furman's plea, whether defense counsel was ineffective in communicating the consequences of his plea, and other areas of inquiry consistent with this dissenting opinion and the court rules. For these reasons, I must dissent.