Opinion
SC 166080 COA 364985
09-27-2024
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. DARQUARION DEONTA HENDERSON, Defendant-Appellant.
Kalamazoo CC: 2015-000579-FH
Elizabeth T. Clement, Chief Justice, Brian K. Zahra, David F. Viviano, Richard H. Bernstein, Megan K. Cavanagh, Elizabeth M. Welch, Kyra H. Bolden, Justices
ORDER
By order of March 8, 2024, the plaintiff-appellee was directed to answer the application for leave to appeal the July 20, 2023 order of the Court of Appeals. On order of the Court, the answer having been received, the application for leave to appeal is again considered. Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we VACATE the November 15, 2022 order of the Kalamazoo Circuit Court denying the defendant's motion for relief from judgment, and we REMAND this case to the trial court to conduct an evidentiary hearing pursuant to People v Ginther, 390 Mich. 436 (1973), to determine whether the defendant was denied the effective assistance of counsel. See MCR 6.508(C).
We do not retain jurisdiction.
CLEMENT, C.J. (dissenting).
I respectfully dissent from this Court's order remanding this case to the trial court for an evidentiary hearing regarding defendant's claim that he received ineffective assistance of counsel. I would instead deny leave to appeal.
In 2015, the prosecutor charged defendant with third-degree criminal sexual conduct (CSC-III), MCL 750.520d(1)(a) (victim at least 13 but less than 16 years of age), and possession of marijuana, MCL 333.7403(2)(d). Ultimately, defendant entered a plea agreement wherein he pleaded guilty to a different crime, second-degree CSC (CSC-II) (multiple variables), MCL 750.520c, in exchange for the dismissal of the possession-of-marijuana charge and an agreement that the prosecutor would not add new charges of witness interference. The parties also entered into a Cobbs agreement to a sentence within the minimum guidelines range and jail credit for time served. Consistently with the Cobbs agreement, the trial court sentenced defendant to a within-guidelines sentence of 24 months to 15 years' imprisonment. Defendant did not pursue a direct appeal.
Both CSC-II and CSC-III are punishable by up to 15 years' imprisonment. MCL 750.520c(2)(a); MCL 750.520d(2). Because CSC-III is a Class B offense and CSC-II is a Class C offense, a change from CSC-III to CSC-II typically results in a lower sentencing guidelines range for a defendant and, accordingly, a lower minimum sentence. See MCL 777.16y.
People v Cobbs, 443 Mich. 276 (1993).
Defendant unsuccessfully sought relief from judgment in 2021, and he has now filed a second motion for relief from judgment. Under MCR 6.502(G), a defendant may only file a successive motion for relief from judgment if it is based on a retroactive change in the law, on a claim of new evidence discovered after the first motion was filed, or on a final order vacating another of a defendant's convictions. MCR 6.502(G) further provides that "[t]he court may waive the provisions of this rule if it concludes that there is a significant possibility that the defendant is innocent of the crime." Here, defendant bases his successive motion on a claim of actual innocence and on new evidence in the form of two affidavits newly issued by the victim and the victim's mother. Those individuals assert that defendant and the victim were involved in a "consensual" romantic relationship with the permission of the victim's mother and that defense counsel did not contact them for interviews or to ask them to testify at trial on behalf of the defense.
The content of the victim's and the victim's mother's affidavits are substantially similar to those filed with defendant's first motion for relief from judgment in 2021. For purposes of this statement, I assume that the latter set of affidavits is sufficiently different from the first so as to constitute "new" evidence and satisfy the procedural obstacle for successive motions for relief from judgment under MCR 6.508(G).
The record available on appeal demonstrates that defendant, who committed and was charged with CSC-III, entered a guilty plea to CSC-II in order to receive a less severe sentence, the dismissal of another pending charge, and the lack of prosecution of other possible charges. Defendant now argues that he is innocent of CSC-II, which requires an additional finding of one of many special circumstances beyond those required to support a conviction for CSC-III. See MCL 750.520c(1). Specifically, defendant argues that the affidavits demonstrate that he did not use force to accomplish the sexual conduct, did not cause personal injury to the victim, and was not in any type of special relationship with the victim identified by the statute.
The affidavits submitted by defendant and the arguments he pursues on appeal demonstrate defendant's guilt of CSC-III. Defendant, then 17 years of age, engaged in sexual penetration with the victim, who was then 15 years of age. See MCL 750.520d(1)(a). In Michigan, there exists no general, blanket exception from criminal culpability for "consensual" sexual penetration between young persons close in age when one of those persons is under 16 years of age. Under MCL 750.520e(1)(a), which establishes the crime of CSC-IV, "consensual" sexual conduct-i.e., not sexual penetration-between a 17-year-old and a 15-year-old is not inherently unlawful. But in the present case, the affidavits submitted demonstrate that sexual penetration, not merely sexual conduct, occurred. Accordingly, defendant was charged with CSC-III, not CSC-IV, and his closeness in age to the victim does not excuse his culpability under current Michigan law.
Assuming that the affidavits are true, defendant may be correct that his CSC-II conviction does not reflect his actual culpability. However, his conviction does reflect the bargain and resolution negotiated and entered into by defendant and the prosecutor.
Our court rules presently allow for the entry of so-called "fictional pleas" like the one defendant alleges he entered-i.e., where a defendant pleads guilty to an offense that he did not commit. See People v Lafay, 182 Mich.App. 528, 532 (1990); MCR 6.302(D)(1) (providing that at the plea hearing, the trial court "must establish support for a finding that the defendant is guilty of the offense charged or the offense to which the defendant is pleading") (emphasis added). The practice of fictional pleas is subject to fervent debate, with some arguing that this type of prosecutorial creativity promotes just and equitable outcomes because it allows defendants to avoid unduly harsh mandatory minimum sentences or collateral consequences, and with others arguing that it is an unconstitutional overreach of a prosecutor's authority by effectively negating penalties established by the Legislature. See American Bar Association Plea Bargain Task Force, 2023 Plea Bargain Task Force Report, <https://www.americanbar.org/content/dam/aba/publications/criminaljustice/plea-bargain-tf-report.pdf> (accessed September 15, 2024). Our own Court has considered potential changes to this practice multiple times.
See also Johnson, Fictional Pleas, 94 Ind L J 855, 869 (2019).
Putting aside the larger policy question of whether fictional pleas should be permitted, so long as they are in use, courts should not allow a defendant who enters such a plea to prevail on a motion for relief from judgment claiming that he is innocent of the crime to which he pleaded guilty. Of course such a defendant is likely innocent of the crime to which he pleaded guilty-that is precisely the definition of a fictional plea. It would be fundamentally unfair to allow fictional pleas at the plea-taking stage as valid and enforceable tools but later reverse the fictional plea solely because it is fictional. Allowing a defendant to prevail on a claim of innocence in such circumstances threatens to render fictional pleas inconclusive, and thus useless. Any fictional plea could merit reversal later when a defendant can show that he is innocent of the crime to which he pleaded guilty. Should this Court choose to prohibit fictional pleas, it should do so clearly through an administrative matter rather than doing so covertly by allowing individual defendants to prevail on claims of innocence, the truth of such claims being an integral component of the practice of allowing fictional pleas. Accordingly, and as the majority in this case has apparently found, defendant is not entitled to relief on this claim of actual innocence.
This Court's order remands the case to the trial court for an evidentiary hearing regarding defendant's ineffective-assistance-of-counsel claim, but is silent regarding defendant's actual-innocence claim.
Unlike the majority, however, I find defendant's ineffective-assistance-of-counsel claim similarly unmoving and inexorably intertwined with his actual-innocence claim. Defendant argues that counsel performed deficiently by failing to interview the victim and the victim's mother, but he fails to demonstrate a reasonable probability that such interviews would have created a different result. People v Swain, 643 Mich.App. 609, 643644 (2011). As described earlier, the affidavits demonstrate that defendant is guilty of committing the charged CSC-III offense-something that would have already been known to defense counsel from defendant's description of the event. Had defense counsel interviewed the victim and the victim's mother, those interviews would not have ultimately resulted in "testimony in the defense favor," as defendant now claims. The interviews would have confirmed that defendant committed CSC-III, and defendant likely would have still opted to take the fictional plea to CSC-II to obtain a lower sentencing guidelines range, the dismissal of a charge, and the agreement not to prosecute other charges. Defendant also argues, supported by the affidavits, that said interviews would have revealed that the victim's mother was told by the arresting officer that defendant was 27 years old at the time of the offense, not 17, as he truly was. But it is again unclear how this discovery would have created a reasonable probability of a different outcome given that MCL 750.520d(1)(a) criminalizes sexual penetration with a person under 16 years of age (but at least 13 years of age) and does not exclude 17-year-olds from culpability. See id. Defendant, the prosecutor, and the trial court knew defendant's true age at the plea hearing and, again, knew that defendant was pleading guilty of CSC-II when he had really committed CSC-III.
To the extent that defendant argues that defense counsel coerced him into pleading guilty of CSC-II, this claim is not based on the new evidence-the victim's and the victim's mother's affidavits-and so does not satisfy the procedural bar of MCR 6.502(G). See People v Owens, 338 Mich.App. 101, 115 (2021) ("Michigan imposes the burden of establishing an entitlement to postconviction relief on the defendant because Michigan has a significant interest in the finality of judgments and preservation of scarce judicial resources and collateral attacks threaten such finality.") (quotation marks and citation omitted). Moreover, most of defendant's prejudice argument is based in an argument that he did not commit CSC-II and so could have proceeded to trial and been acquitted, had he not been coerced to enter a plea to CSC-II. But as explained, the CSC-II conviction was a fictional plea, entered to lessen the consequences defendant would otherwise face if he proceeded to trial. Had defendant not entered this plea, defendant would have proceeded to trial with a CSC-III charge and would have been found guilty of that and perhaps his other pending charge (as well as other charges the prosecutor could have levied). To the extent that defendant's argument that he did not "rape" anyone constitutes an argument that he was not guilty of CSC-III either, this argument demonstrates a misunderstanding of Michigan law. Again, under MCL 750.520d(1)(a), CSC-III is committed when a person 17 years of age sexually penetrates a 15-year-old. Whether the 15-year-old would have consented, had the law given that individual the capacity to do so, is irrelevant under the CSC-III statute, and the courts and the parties are bound by the language of that statute.
For these reasons, I would have denied leave to appeal in this case.
ZAHRA and VIVIANO, JJ., would deny leave to appeal.