Opinion
SC 166547 COA 367997
05-10-2024
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. THOMAS MARIO-DASHION RANGE, Defendant-Appellant.
Wayne CC: 22-002096-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
On order of the Court, the application for leave to appeal the November 17, 2023 order 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.
CAVANAGH, J. (concurring).
I agree with the Court's order denying leave to appeal. I write separately to (1) emphasize again the importance of clearly communicating to a criminal defendant that any sentencing guidelines range discussed at the plea stage is preliminary and subject to change, because such information helps ensure a knowing and voluntary plea, see generally People v. Jones, 511 Mich. 1030, 1030 (2023) (CAVANAGH, J., concurring), and (2) highlight that such advice is warranted not only in the context of a preliminary sentencing evaluation pursuant to People v. Cobbs, 443 Mich. 276 (1993), but rather anytime a guidelines range is discussed before sentencing.
The defendant here pleaded guilty to a charge of first-degree home invasion in exchange for dismissal of a fourth-offense habitual felony offender notice and a prosecutorial sentencing agreement of 7 to 20 years in prison. At the plea hearing, defendant's trial counsel, the prosecutor, and the court all indicated that the bottom of defendant's sentencing guidelines range would be 78 months (6.5 years). However, the guidelines range in defendant's presentence investigation report (PSIR) that was prepared after he entered his plea indicated a significantly lower guidelines range of 51 to 85 months. At the sentencing hearing, defendant challenged the trial court's imposition of a seven-year minimum sentence, arguing that defense counsel led him to believe that the sentencing agreement was for a sentence near the bottom of the guidelines (rather than one just below the top of the guidelines) and that he agreed to plead guilty for that reason. Almost a year after the sentencing hearing, defendant filed a motion to withdraw his plea, which the trial court denied.
Defendant sought leave to appeal, arguing that trial counsel rendered deficient performance by incorrectly advising him what his sentencing guidelines would be and by failing to explain that the range discussed during plea negotiations was only an estimate.Defendant contends that neither the parties nor the court informed him that the guidelines range represented before and during the plea hearing was subject to change. Rather, everyone agreed that the sentencing agreement was to a sentence near the low end of the guidelines. He further contends that he would not have pleaded guilty had he known that the sentencing agreement provided for a sentence near the top of his guidelines instead of the bottom.
Defendant attached to his motion for plea withdrawal and his application for leave to appeal a letter from defense counsel during plea negotiations stating that "[t]he prosecutor has offered you 5 to 20 years-one and a half years below guidelines." Defendant contends that this correspondence supports his assertion that trial counsel led him to believe that the bottom of the guidelines range was definitively set at 6.5 years.
The record appears to support defendant's assertion that no one advised him that the guidelines range discussed before and during the plea hearing was not final and could change. As I have noted, any guidelines range discussed at the plea stage is generally an estimate based on how the parties or the court believe that the sentencing variables will be scored, with the trial court determining a defendant's final guidelines range at sentencing on the basis of the PSIR, which is not created until after the plea is entered. See Jones, 511 Mich. at 1035 &n 6 (CAVANAGH, J., concurring). Although the lawyers in the room generally know how this works, a criminal defendant might not, and a defendant's false belief that a guidelines range discussed at the plea stage is conclusive could render a plea involuntary. Id.; see also In re Valle, 364 Mich. 471, 477-478 (1961) (holding that the pertinent inquiry as to whether a defendant has a right to plea withdrawal is not how "one learned in the law and acquainted with judicial administration" would understand the terms of the plea, but rather how that defendant would "fairly interpret[]" the terms).
While I have previously discussed this issue in the context of Cobbs evaluations, similar concerns exist anytime a potential guidelines range is discussed before sentencing. One of the most important factors for a defendant considering a guilty plea is the length of their minimum sentence (as this determines their parole eligibility date), and the guidelines play an important role in determining that sentence. While the guidelines are no longer mandatory, trial courts are required "to consult the applicable guidelines range and take it into account when imposing a sentence." People v. Lockridge, 498 Mich. 358, 392 (2015). Moreover, a sentencing court must ensure that a defendant's sentence is proportionate to the offense and the offender, and the "guidelines embody the principle of proportionality ...." People v. Dixon-Bey, 321 Mich.App. 490, 524 (2017). Therefore, even though the guidelines are advisory, they often have a significant impact on the minimum sentence that a trial court imposes. Cf. Peugh v. United States, 569 U.S. 530, 543 (2013) (noting that the federal advisory guidelines "cabin the exercise of [the sentencing court's] discretion" and that empirical studies showed that they "have the intended effect of influencing the sentences imposed by judges"). Accordingly, one important consideration in assessing a plea offer is a defendant's guidelines range for an offense and how any sentencing agreement compares to that range.
While this case involves a decision to accept a plea offer, these considerations might also influence a defendant's decision to reject a plea offer. Cf. Lafler v. Cooper, 566 U.S. 156, 162-163, 170-172 (2012) (recognizing that a defendant has a right to effective assistance of counsel during plea negotiations and describing the possible remedies for ineffective assistance that leads a defendant to forgo a plea offer).
I do not suggest that it is inappropriate for the parties or the court to calculate an estimated guidelines range during plea discussions and to communicate that estimate to the defendant. The reality is that a defendant's sentencing guidelines range is not determined until after a plea is entered and that information first obtained after the plea hearing may affect a defendant's guidelines range. Some uncertainty is therefore unavoidable. However, in many situations the parties and the court may be able to fairly estimate what the guidelines range will be, and defendants may find such estimates helpful in assessing a whether to accept a plea offer. The mere fact that an estimate may ultimately be incorrect does not necessarily render a plea involuntary. My point is only that, rather than leave a defendant with a false sense of certainty regarding the benefits of a plea offer, attorneys and courts should clearly advise a defendant of the risk that the final guidelines range could be different so that they can make a fully informed decision.
The Court of Appeals has held that a trial counsel's good-faith mistaken evaluation of a defendant's potential sentencing guidelines range does not constitute deficient performance. See In re Oakland County Prosecutor, 191 Mich.App. 113, 121-124 (1991). However, there does not appear to be any caselaw addressing whether trial counsel performs ineffectively by failing to explain that any preliminary sentencing range discussed at the plea stage is an estimate and that the final range could be different.
In sum, the concerns I raised in Jones are not limited to the Cobbs context and should apply any time a preliminary guidelines range is discussed before a plea is entered. Accordingly, the parties and trial court would be well-advised to clearly explain that any guidelines range discussed at the plea stage is not final. It is concerning that it appears that no one advised this defendant that the guidelines range discussed at the plea hearing was not final. However, I am not persuaded that, on these facts, defendant is entitled to plea withdrawal. Accordingly, I concur in the Court's denial order.
WELCH, J., joins the statement of CAVANAGH, J.