Opinion
No. 115193.
May 12, 2000.
Appeal from the COA: 219241, Recorder's Ct: 96-006457.
On order of the Court, the delayed application for leave to appeal from the July 6, 1999 decision of the Court of Appeals is considered and, pursuant to MCR 7.302(F)(1), in lieu of granting leave to appeal, we REMAND the case to the Wayne Circuit Court for further proceedings. The trial court did not secure an adequate factual basis to support acceptance of the guilty plea. See MCR 6.445(F)(4). On remand, the trial court shall provide the prosecutor an opportunity to establish a factual basis to support the plea. See People v Mitchell, 431 Mich. 744, 750 (1988). If the prosecutor establishes a factual basis and no contrary evidence exists, defendant's conviction shall stand. If the prosecutor is unable to establish that defendant violated a condition of probation, the trial court shall vacate the order revoking defendant's probation. If contrary evidence is produced, the trial court shall treat the matter as a motion to withdraw the plea, and decide the matter in the exercise of its discretion.
We do not retain jurisdiction.
I cannot join in this order, because it applies the procedure outlined in People v Mitchell to the facts of this case. Instead of remanding the case to allow the prosecutor to establish the missing factual basis, the Court should simply vacate defendant's guilty plea.
431 Mich. 744, 750 (1988).
The reason that the Mitchell procedure is inapplicable here is that the two cases are factually unalike. In Mitchell, the judge accepted the defendant's guilty plea after asking the defendant to relate the facts of the offenses charged. Id. at 745. The defendant's reply fell short of fully establishing a necessary element. Id. at 749-750. Instead of vacating the convictions, this Court remanded the proceedings to allow the prosecutor to supply the missing element. Id.
In this case, the judge, accepting defendant's plea, did not attempt to secure any factual basis from the defendant whatsoever. Instead, the judge stated, "It's alleged that he failed to report, and that he turned in a positive urine." Someone other than defendant answered, "That's correct, Judge." The defendant himself never admitted that he violated the conditions of his probation.
A defendant must be directly questioned in order to establish that he did commit the crime and understands the nature of the plea. People v Taylor, 387 Mich. 209, 222, 224-225 (1972), citing People v Barrows, 358 Mich. 267, 272 (1959). The court rule requires the trial judge to speak directly to the probationer and receive an answer from the probationer. MCR 6.445(F)(4). Because the trial judge failed to follow the rule, defendant did not make an understanding plea in the eyes of the law. MCR 6.445(F)(3); Taylor, supra at 224-225. Allowing the prosecutor to supply facts showing a parole violation will not create an understanding plea where one did not exist before.
Cavanagh, J., concurs with the statement of Kelly, J.