Opinion
No. 333697
10-10-2017
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. MICHAEL VALENTINO VASQUEZ, Defendant-Appellant.
UNPUBLISHED Saginaw Circuit Court
LC No. 14-040711-FC Before: TALBOT, C.J., and O'CONNELL and O'BRIEN, JJ. PER CURIAM.
Defendant, Michael Valentino Vasquez, appeals by leave granted from his plea-based conviction of assault with intent to murder, MCL 750.83, torture, MCL 750.85, kidnapping, MCL 750.349, domestic violence, third offense (domestic violence 3d), MCL 750.81(4), and first-degree criminal sexual conduct (CSC-I), MCL 750.520b. The trial court sentenced Vasquez as a fourth-habitual offender, MCL 769.12, to concurrent prison terms of 300 months to 65 years for the assault with intent to murder conviction, 300 months to 65 years for the torture conviction, 300 months to 40 years for the kidnapping conviction, and 85 months to 10 years for the domestic violence 3d conviction. The trial court imposed a consecutive sentence of 300 months to 65 years for the CSC-I conviction. Vasquez argues that he should be able to withdraw the plea because the consecutive 25-year sentence violated the plea agreement. We disagree.
I. FACTUAL AND PROCEDURAL BACKGROUND
Vasquez assaulted and raped his girlfriend. At a plea hearing, Vasquez agreed to plead no contest to the five charged offenses and acknowledged three prior convictions. The prosecution agreed to cap the minimum sentence at 25 years. Vasquez confirmed his agreement with the 25-year cap. The trial court then reviewed each charged offense and its maximum penalty with Vasquez. The trial court noted that a CSC-I conviction carried the possibility of a consecutive sentence, and Vasquez stated that he understood. At the conclusion of the plea colloquy, the trial court accepted Vasquez's plea.
Vasquez subsequently filed a motion to withdraw the plea because the consecutive sentence for the CSC-I conviction effectively doubled the agreed minimum sentence to 50 years. Vasquez argued that a 50-year sentence exceeded the terms of the plea deal and that he did not understand the prosecution's agreement to a 25-year cap to include the possibility of a consecutive sentence. Vasquez maintained that he would not have agreed to the plea if he knew that he could get consecutive 25-year sentences. The trial court denied the motion because Vasquez confirmed at the plea hearing that he understood a consecutive sentence was possible.
II. STANDARD OF REVIEW
We review a trial court's denial of a motion to withdraw a plea for an abuse of discretion. People v Blanton, 317 Mich App 107, 117; 894 NW2d 613 (2016). We will not disturb the trial court's decision unless its decision falls outside "the range of reasonable and principled outcomes." Id. (citation and quotation omitted). We review legal questions, including the interpretation of a court rule, de novo. People v Plumaj, 284 Mich App 645, 648; 773 NW2d 763 (2009).
III. ANALYSIS
Due process requires a plea to be knowing, intelligent, and voluntary. People v Cole, 491 Mich 325, 332-333; 817 NW2d 497 (2012). To accept a plea, the trial court must verify that "the plea is understanding, voluntary, and accurate." MCR 6.302(A). For a plea to be voluntary, the defendant "must be fully aware of the direct consequences of the plea." Cole, 491 Mich at 333 (citation and quotations omitted). A valid plea does not require advising the defendant about the collateral consequences. Cole, 491 Mich at 333-334. The difference between direct and collateral consequences depends on the effect on the defendant's punishment. Id. at 334. The trial court must notify a defendant about mandatory sentencing. Blanton, 317 Mich App at 119. The possibility of a consecutive sentence, however, is an example of a collateral consequence. People v Fonville, 291 Mich App 363, 385; 804 NW2d 878 (2011).
This Court's decision in Blanton, 317 Mich App 107, is instructive. In Blanton, the defendant pleaded guilty to felony-firearm, id. at 110, which prescribes a mandatory consecutive sentence, MCL 750.227b(3). For the defendant's plea to felony-firearm to be voluntary and understanding, the trial court must notify the defendant that the felony-firearm statute requires consecutive sentencing. Blanton, 317 Mich App at 120.
By contrast, in this case, MCL 750.520b(3) permits, but does not require, a trial court to order a consecutive sentence for a CSC-I conviction. Accordingly, the possibility of a consecutive sentence for the CSC-I conviction was a collateral consequence of Vasquez's no-contest pleas, so the trial court was not required to advise him about it. Moreover, the trial court did inform Vasquez about this possibility at the plea hearing, and Vasquez affirmed that he understood. Thus, Vasquez failed to show that his plea was not knowing, intelligent, and voluntary.
Vasquez also argues that he should be entitled to withdraw his plea because the trial court failed to comply with MCR 6.302(C)(3). Vasquez waived this argument in the trial court, thereby extinguishing any possible error. Waiver is "the intentional relinquishment or abandonment of a known right." People v Carter, 462 Mich 206, 215; 612 NW2d 144 (2000) (citation and quotation omitted). When a defendant expresses agreement with the trial court's action, the defendant waives his right to challenge that action on appeal. Id. at 214-215.
At the end of the plea hearing in this case, the trial court asked the prosecution if the court complied with the court rules, "including MCR 6.302[.]" The prosecution answered yes. Without being asked, defense counsel interjected his agreement with the trial court's compliance with the court rules. Thus, Vasquez intentionally relinquished the right to argue otherwise.
In any event, Vasquez has not shown that the trial court violated the court rule by imposing consecutive 25-year sentences. Vasquez argues that the trial court did not follow MCR 6.302(C)(3)'s instructions to advise Vasquez that the trial court was not required to follow the plea agreement and that Vasquez could withdraw from the plea agreement if the trial court chose not to follow it. Strict compliance with MCR 6.302 is not required. Plumaj, 284 Mich App at 649. Rather, a defendant must show that the plea was not knowing, voluntary, and intelligent for noncompliance with the court rule to warrant reversal. Id. at 651. In this case, the trial court confirmed Vasquez's understanding of the possibility of a consecutive sentence and followed the plea agreement by not exceeding the 25-year minimum. Therefore, noncompliance with MCR 6.302(C)(3) as it pertains to review of the presentence report does not require reversal.
We affirm.
/s/ Michael J. Talbot
/s/ Peter D. O'Connell
/s/ Colleen A. O'Brien
People v Vasquez, unpublished order of the Court of Appeals, entered August 22, 2016 (Docket No. 333697).