Opinion
No. 340729
07-24-2018
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. TIMOTHY LEE JERRY, Defendant-Appellant.
UNPUBLISHED Van Buren Circuit Court
LC No. 2016-020348-FH Before: HOEKSTRA, P.J., and MURPHY and MARKEY, JJ. PER CURIAM.
Defendant, Timothy Lee Jerry, pleaded guilty to violating his probation for second-degree criminal sexual conduct (CSC-II), MCL 750.520c(1)(a) (sexual contact with a person under 13 years of age). The trial court sentenced defendant to 2 to 15 years' imprisonment and lifetime electronic monitoring. We affirm.
This case stems from defendant's failure to abide by the terms of his order of probation. Pursuant to an underlying plea agreement on CSC-II, the trial court sentenced defendant to one year in jail, with the condition that defendant participate in sex offender treatment following completion of the jail sentence. The trial court also sentenced defendant to five years' probation, during which time defendant was required to wear a GPS-tracking ankle bracelet. Under the order of probation, defendant was required to charge his GPS-bracelet for two continuous hours every day and to report any equipment malfunctions to his probation agent.
Upon his release from jail, defendant completed sex offender treatment. However, only a few days after completing treatment, on March 4 and 5, 2017, defendant allegedly failed to charge his GPS-bracelet. Defendant was arrested for violating the order of probation, and he pleaded guilty to the March 4th probation violation. In so pleading, defendant and the trial court engaged in the following colloquy:
In exchange, the charged March 5th probation violation was dismissed.
The Court: Okay. That on March 4, 2017 you violated Term 46 of your probation by failing to charge your GPS bracelet as required by the
Michigan Department of Corrections Electronic Monitoring System Participation Agreement. Did you fail to charge your GPS bracelet as required by your probation rules?The trial court determined that defendant's statements were sufficient to establish the factual basis for defendant's guilty plea, and as such, the trial court accepted the plea.
Defendant: No, ma'am. Yes, ma'am.
The Court: Yes, you failed to charge it?
Defendant: Yes, I failed to charge it.
At sentencing six weeks later, defendant informed the trial court that with respect to the probation violation, circumstances existed outside of his control that caused the GPS-bracelet's battery to die. Defendant explained that he was unable to charge the GPS-bracelet because his charging cord was malfunctioning, and when defendant reported the situation to his probation agent, the agent told defendant to keep the bracelet plugged into the charger and to visit him two days later, on Monday, March 6, 2017, the day that defendant was arrested. It is evident from the record that defendant's remarks at sentencing were not made in an effort to withdraw or back out of the plea agreement; rather, defendant, as part of his allocution, appeared to have made the assertions in order to receive leniency in sentencing on the probation violation. Nonetheless, the trial court sentenced defendant to 2 to 15 years in prison and lifetime electronic monitoring.
Defendant filed a motion to withdraw his plea on September 18, 2017, arguing that the factual basis of his plea was insufficient and that he was innocent of the probation violation. The trial court denied the motion, determining that at the time of the plea, the record reflected that a sufficient factual basis had been elicited to support the conclusion that defendant violated his probation.
Defendant then appealed the trial court's denial of his motion to withdraw the plea, and this Court granted delayed leave. Because defendant moved in the trial court to withdraw his plea on the ground that the plea lacked a sufficient or an accurate factual basis and because he now presents that same argument on appeal, defendant has properly preserved his appellate arguments. See MCR 6.310(D).
People v Jerry, unpublished order of the Court of Appeals, entered November 28, 2017 (Docket No. 340729).
MCR 6.310(D) provides, in pertinent part:
A defendant convicted on the basis of a plea may not raise on appeal any claim . . . that the plea was not an understanding, voluntary, or accurate one, unless 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.
"When a motion to withdraw a guilty plea is made after sentencing, the decision whether to grant it rests within the sound discretion of the trial court. That decision will not be disturbed on appeal unless there is a clear abuse of discretion resulting in a miscarriage of justice." People v Effinger, 212 Mich App 67, 69; 536 NW2d 809 (1995). A trial court does not abuse its discretion if its decision falls within the range of principled outcomes. People v Cross, 281 Mich App 737, 739; 760 NW2d 314 (2008).
On appeal, defendant contends that the trial court erred in not allowing him to withdraw the guilty plea on the probation violation, considering that the factual basis of the plea was insufficient and inaccurate and that defendant is actually innocent of any probation violation. Defendant complains that because he attempted to charge the electronic monitoring device by keeping it plugged in for two or more hours, the trial court effectively imposed strict liability relative to the probation violation, thereby infringing on his due process rights.
"Generally, it is well established that there is no absolute right to withdraw a plea once the trial court has accepted it." People v Davidovich, 238 Mich App 422, 425; 606 NW2d 387 (1999). However, MCR 6.310(C), which governs motions to withdraw pleas after sentencing, provides, in pertinent part:
If the trial court determines that there was an error in the plea proceeding that would entitle the defendant to have the plea set aside, the court must give the advice or make the inquiries necessary to rectify the error and then give the defendant the opportunity to elect to allow the plea and sentence to stand or to withdraw the plea.
Thus, "[a] defendant seeking to withdraw his or her plea after sentencing must demonstrate a defect in the plea-taking process." People v Brown, 492 Mich 684, 693; 822 NW2d 208 (2012). A plea must be accurate, MCR 6.302(A), and on the specific subject of plea accuracy, MCR 6.302(D)(1) provides that "[i]f the defendant pleads guilty, the court, by questioning the defendant, must establish support for a finding that the defendant is guilty of the offense charged or the offense to which the defendant is pleading." "Where the statements by a defendant at the plea procedure do not establish grounds for a finding that the defendant committed the crime charged, the factual basis for the plea-based conviction is lacking." People v Mitchell, 431 Mich 744, 748; 432 NW2d 715 (1988). "In reviewing the adequacy of the factual basis for a plea, this Court examines whether the factfinder could properly convict on the facts elicited from the defendant at the plea proceeding." People v Brownfield (After Remand), 216 Mich App 429, 431; 548 NW2d 248 (1996). And in People v Jones, 190 Mich App 509, 511-512; 476 NW2d 646 (1991), this Court observed:
A factual basis to support a plea exists if an inculpatory inference can be drawn from what the defendant has admitted. This holds true even if an exculpatory inference could also be drawn and the defendant asserts that the latter is the correct inference. Even if the defendant denies an element of the crime, the court may properly accept the plea if an inculpatory inference can still be drawn from what the defendant says.
At defendant's plea hearing on the probation violation, defendant admitted that he failed to charge his GPS-tracking ankle bracelet as required by the terms of his probation order. An inculpatory inference can plainly be drawn from defendant's concession. In fact, the necessary connotation or implication of defendant's express statement to the court that he "failed to charge it" is that he made no attempt to charge the GPS-bracelet, not that he tried to charge the device but it would not hold a charge. Therefore, there was sufficient support for the trial court's finding that defendant had violated the order of probation; a factual basis was established as required to make the plea "accurate" under MCR 6.302(D)(1).
Defendant argues that had the trial court asked defendant questions specific to the alleged probation violation, the court would have discovered the absence of a sufficient factual basis for the charged probation violation and that the plea was inaccurate. Defendant maintains that the trial court should have asked defendant whether he plugged the GPS-bracelet into the charging equipment for two hours on March 4, 2017, and whether defendant reported any operating problems with or damage to the charging equipment to his probation agent, which questions defendant purportedly would have answered in the affirmative. We conclude that these questions are more relevant to mitigation and possible defenses that defendant could have raised, as opposed to being part of the necessary inquiry in establishing the factual basis for and accuracy of the plea.
Moreover, we note that the probation violation report contained no indication whatsoever that defendant had reported any functional problems with the charging equipment to his probation agent. The report stated that defendant's whereabouts were unknown to authorities for the entire weekend because the GPS-bracelet was not operative. In pursuing the motion to withdraw the guilty plea, defendant made no attempt to subpoena the probation agent, nor did he procure any type of verification that defendant had actually contacted the agent as claimed. Indeed, defendant did not even submit his own affidavit in support of his claims that the charging equipment malfunctioned and that he called his probation agent. The probation violation report indicated that defendant asserted that he was with his girlfriend when the charging equipment failed; however, defendant offered no supporting affidavit or other documentation from his girlfriend.
In sum, reversal is unwarranted, as there was no abuse of discretion by the trial court in denying defendant's motion to withdraw his guilty plea.
Affirmed.
/s/ Joel P. Hoekstra
/s/ William B. Murphy
/s/ Jane E. Markey