Opinion
359570
05-25-2023
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. JIMMIE YOUNG, Defendant-Appellant.
UNPUBLISHED
Wayne Circuit Court LC No. 18-004460-01-FC
Before: Cavanagh, P.J., and K. F. Kelly and Garrett, JJ.
PER CURIAM.
Defendant appeals by leave granted his nolo contendere plea convictions of manslaughter and possession of a firearm during the commission of a felony (felony-firearm). Finding no errors warranting reversal, we affirm.
People v Young, unpublished order of the Court of Appeals, entered January 26, 2022 (Docket No. 359570).
I. BASIC FACTS AND PROCEDURAL HISTORY
This case arises from the fatal shooting of Angela Foster at approximately 2:00 a.m. on May 5, 2018, in Highland Park, Michigan. Early that morning, defendant shot Foster after, as defendant claimed, the two got into an argument and Foster attacked defendant with a piece of metal. Defendant claimed he tried to fire a warning shot but hit Foster. Defendant put Foster into his car and drove her to Henry Ford Hospital. A short time later, Foster died from a single gunshot wound. Defendant was subsequently interviewed by Detective Brian Menge, who read defendant his Miranda rights from a form. Defendant signed the form and placed his initials next to each right. During the interview, defendant admitted to getting into an argument with and shooting Foster.
Miranda v Arizona, 384 U.S. 436; 86 S.Ct. 1602; 16 L.Ed.2d 694 (1966).
In the trial court, defendant moved to suppress his statements made to police on the basis that the statements were not voluntary as a result of intoxication and denial of the right to an attorney. The trial court denied the motion. Defendant then retained new counsel for the apparent purpose of filing an interlocutory appeal, but no appeal was filed.
Before trial began, defendant decided to accept the prosecutor's offer to plead no contest to the charges in exchange for a 3-to-15-year sentence for the manslaughter conviction and a consecutive two-year sentence for the felony-firearm conviction. At the sentencing hearing, defendant moved to withdraw his plea on the basis of a lack of evidence and innocence, and the trial court denied the motion without explanation. Defendant was sentenced according to the plea agreement. This appeal followed.
II. SUPPRESSION OF THE EVIDENCE
A. STANDARDS OF REVIEW
This Court reviews a trial court's ultimate decision on a motion to suppress evidence de novo. People v Elliot, 494 Mich. 292, 300-301; 833 N.W.2d 284 (2013). The trial court's factual findings are reviewed for clear error. Id. at 300. Factual findings are clearly erroneous when the reviewing court is left with a "definite and firm conviction that the trial court made a mistake." People v Wiley, 324 Mich.App. 130, 165; 919 N.W.2d 802 (2018) (quotation marks and citation omitted). "On appeal from a ruling on a motion to suppress evidence of a confession, deference must be given to the trial court's findings." People v Kowalski, 230 Mich.App. 464, 471; 584 N.W.2d 613 (1998). "A trial court's decision to admit evidence will not be disturbed absent an abuse of discretion, which occurs when the court chooses an outcome that falls outside the range of principled outcomes." People v Douglas, 496 Mich. 557, 565; 852 N.W.2d 587 (2014) (quotation marks omitted).
B. ANALYSIS
Defendant argues that the trial court abused its discretion when it denied his motion to suppress the evidence of the statements he made to police during a custodial interrogation. We disagree.
The United States and Michigan Constitutions both guarantee the right against self-incrimination. U.S. Const, Am V; Const 1963, art 1 § 17. In Miranda v Arizona, 384 U.S. 436, 467-469; 86 S.Ct. 1602; 16 L.Ed.2d 694 (1966), the United States Supreme Court held that during a custodial interrogation, a suspect must be "informed in clear and unequivocal terms" that he has the right to remain silent and any statements made may be used against him in court. A suspect also has the constitutional right to counsel during a custodial interrogation. People v Tanner, 496 Mich. 199, 207; 853 N.W.2d 653 (2014). The right to counsel is imperative to protect the suspect's right against self-incrimination. Miranda, 384 U.S. at 469. "Once a suspect invokes his right to remain silent or requests counsel, police questioning must cease unless the suspect affirmatively reinitiates contact." Tanner, 496 Mich. at 208.
"A suspect's waiver of his Miranda rights must be made voluntarily, knowingly, and intelligently." Id. at 209 (quotation marks and citation omitted omitted). To be voluntary, the waiver must be "the product of a free and deliberate choice rather than intimidation, coercion or deception." Id. (quotation marks and citation omitted). Whether a statement was made voluntarily is considered under the totality of the circumstances. Id. In People v Cipriano, 431 Mich. 315, 334; 429 N.W.2d 781 (1988), the Michigan Supreme Court set forth the factors a court should consider when determining whether a statement given to police was voluntary.
In determining whether a statement is voluntary, the trial court should consider, among other things, the following factors: the age of the accused; his lack of education or his intelligence level; the extent of his previous experience with the police; the repeated and prolonged nature of the questioning; the length of the detention of the accused before he gave the statement in question; the lack of any advice to the accused of his constitutional rights; whether there was an unnecessary delay in bringing him before a magistrate before he gave the confession; whether the accused was injured, intoxicated or drugged, or in ill health when he gave the statement; whether the accused was deprived of food, sleep, or medical attention; whether the accused was physically abused; and whether the suspect was threatened with abuse. [Id.]
A waiver is knowing and intelligent when it is "made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it." Moran v Burbine, 475 U.S. 412, 421; 106 S.Ct. 1135; 89 L.Ed.2d 410 (1986). The consequences to be understood relate to the admissibility of a defendant's statements in court proceedings, "and the test is not whether it was wise or smart to admit his culpability." People v Tierney, 266 Mich.App. 687, 710; 703 N.W.2d 204 (2005). When deciding whether to waive the Fifth Amendment right to silence, "a defendant need only know of his available options and make a rational decision, not necessarily the best decision." Id.
"When reviewing a trial court's determination of the voluntariness of inculpatory statements, this Court must examine the entire record and make an independent determination, but will not disturb the trial court's factual findings absent clear error." People v Shipley, 256 Mich.App. 367, 372-373; 662 N.W.2d 856 (2003). "The burden is on the state to prove by a preponderance of the evidence that the suspect properly waived his rights." People v Cheatham, 453 Mich. 1, 27; 551 N.W.2d 355 (1996). "To establish a valid waiver, the state must present evidence sufficient to demonstrate that the accused understood that he did not have to speak, that he had the right to the presence of counsel, and that the state could use what he said in a later trial against him." Id. at 29. The United States Supreme Court has acknowledged that "giving the [Miranda] warnings and getting a waiver generally produces a virtual ticket of admissibility." Missouri v Seibert, 542 U.S. 600, 608-609; 124 S.Ct. 2601; 159 L.Ed.2d 643 (2004).
Defendant argues that his waiver of his Miranda rights was not made voluntarily, knowingly, and intelligently because he was intoxicated, could not read the form, and was never asked if he understood his rights. The trial court noted that Detective Menge read defendant each of his Miranda rights and that defendant initialed and signed the waiver form. Similarly, defendant never asked questions about his rights or said that he could not read the waiver form. There is no evidence that defendant was subjected to physical coercion. However, defendant was intoxicated during the interview. Indeed, defendant admitted to having four or five drinks the previous day, at least five hours before the interrogation took place. The trial court found, however, that defendant's intoxication was outweighed by other factors showing defendant made a voluntary waiver of his rights. In sum, the trial court's overall finding that defendant made a knowing waiver of his Miranda rights was not clearly erroneous.
Defendant also argues that his statements made to police must be suppressed because he invoked his right to counsel. A defendant's invocation of the right to counsel must be "unequivocal." Tierney, 266 Mich.App. at 711. "[I]f a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, our precedents do not require the cessation of questioning." Davis v United States, 512 U.S. 452, 459; 114 S.Ct. 2350; 129 L.Ed.2d 362 (1994). In Davis, the United States Supreme Court held that the statement, "[m]aybe I should talk to a lawyer," was not an invocation of the right to counsel. Id. at 462. This is because such a statement only indicates the likelihood that the suspect might later invoke his right. Id. at 459. Similarly, in Tierney, this Court held that the statements "[m]aybe I should talk to an attorney" and "I might want to talk to an attorney" were not an unambiguous invocation of the right to counsel. Tierney, 266 Mich.App. at 711.
This Court has also held that when a reference to obtaining an attorney is made in the future tense, there is no indication that a suspect is presently invoking his right to counsel. People v Granderson, 212 Mich.App. 673, 677; 538 N.W.2d 471 (1995). In Granderson, when asked if he wished to have an attorney paid for by the state, the defendant responded, "Yeah, I'm-I'm [going to] need that 'cause I can't afford none." Id. at 676. This Court concluded that such a statement indicated the defendant would later need counsel, rather than he was presently invoking his right to counsel. Id. at 677.
It is apparent that defendant only made an equivocal reference to invoking his right to have an attorney present. Detective Menge was beginning to ask defendant about the events leading up to the shooting, and he asked defendant whether he was angry at the time. Defendant said:
I don't know what was going on. Nah, nah.
But, you know, I ain't trying to be funny. I know-you know we get to talkin' about stuff like that, I could get jammed up. Or . . . whatever. So you know I-I would definitely have to, uh . . . you know, speak with a lawyer, whatever. But . . . .
Detective Menge then reminded defendant that he was entitled to talk to a lawyer, which was why he was advised of his rights. Detective Menge began questioning defendant again, and defendant answered the questions without further discussion of his right to counsel. Rather than asking for a lawyer immediately, defendant indicated that if that they began talking about the shooting, then he would need to speak to a lawyer. That was not a present invocation of the right to counsel. Like in Granderson, the statement was made regarding the future need for an attorney, which does not qualify as a request for counsel. Granderson, 212 Mich.App. at 677. Accordingly, detectives were not required to cease their questioning of defendant. Id.
But even if defendant's statements to police were made involuntarily, defendant does not have an available remedy. The failure to provide sufficient Miranda warnings is not itself a violation of a defendant's constitutional rights. United States v Patane, 542 U.S. 630, 641; 124 S.Ct. 2620; 159 L.Ed.2d 667 (2004). A defendant's constitutional rights are not violated until his incriminating statements are used against him during trial, and the remedy for a Miranda violation is to exclude the unwarned statements from being used as evidence at trial. Id. at 641-642. Defendant waived this remedy when he waived his right to a trial by pleading no-contest. People v Cook, 323 Mich.App. 435, 446-447; 918 N.W.2d 536 (2018) ("[A] criminal defendant may appeal from an unconditional guilty plea or a plea of nolo contendere only where the claim on appeal implicates the very authority of the state to bring the defendant to trial, that is, where the right of the government to prosecute the defendant is challenged, but [w]here the claim sought to be appealed involves only the capacity of the state to prove defendant's factual guilt, it is waived by a plea of guilty or nolo contendere.") (quotation marks and citation omitted; second alteration in original).
After a guilty or no-contest plea, a defendant may only challenge by right whether the state had jurisdiction to prosecute him. Id. "[A] defendant, after pleading guilty, may raise on appeal only those defenses and rights which would preclude the state from obtaining a valid conviction against the defendant." Id. at 445. "[W]here the defense or right asserted by defendant relates solely to the capacity of the state to prove defendant's factual guilt, it is subsumed by defendant's guilty plea." People v New, 427 Mich. 482, 491; 398 N.W.2d 358 (1986). A defendant, following a guilty or no-contest plea, may only challenge the trial court's decision to suppress evidence if he has entered into a conditional plea agreement that reserves the defendant's right to bring such a challenge. Cook, 323 Mich.App. at 444.
As will be discussed below in greater detail, defendant knowingly waived his trial rights and did not enter a conditional plea allowing him to challenge the trial court's evidentiary ruling. Accordingly, even if defendant's Miranda waiver was involuntary and his invocation of the right to counsel was unequivocal-two propositions we reject-defendant does not have a remedy because the fruit of those purported violations was never used against defendant at trial. The trial court did not err, therefore, when it denied defendant's motion to suppress.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
A. STANDARDS OF REVIEW
"Whether a person has been denied effective assistance of counsel is a mixed question of fact and constitutional law." People v LeBlanc, 465 Mich. 575, 579; 640 N.W.2d 246 (2002). The trial court's factual findings are reviewed for clear error, and questions of law are reviewed de novo. Id. A factual finding is clearly erroneous only when we are left with a "definite and firm conviction that the trial court made a mistake." Wiley, 324 Mich.App. at 165 (quotation marks and citation omitted). Because no Ginther hearing was held in the trial court, this Court's review is limited to mistakes apparent on the record. People v Mack, 265 Mich.App. 122, 125; 695 N.W.2d 342 (2005).
People v Ginther, 390 Mich. 436; 212 N.W.2d 922 (1973).
B. ANALYSIS
Defendant contends that his trial counsel rendered ineffective assistance by failing to file an interlocutory appeal from the trial court's order denying his motion to suppress his statements. We disagree.
To show ineffective assistance of counsel, a defendant must establish: "(1) the lawyer's performance fell below an objective standard of reasonableness under prevailing professional norms and (2) there is a reasonable probability that, but for the lawyer's deficient performance, the result of the proceedings would have been different." People v Anderson, 322 Mich.App. 622, 628; 912 N.W.2d 607 (2018). Effective assistance of counsel is presumed, and a defendant bears a "heavy burden" to prove his counsel was ineffective. People v Putnam, 309 Mich.App. 240, 248; 870 N.W.2d 593 (2015).
To demonstrate prejudice in a claim related to a plea agreement, the defendant must show that, but for counsel's error, the outcome of the plea process would have been different. Douglas, 496 Mich. at 592. An attorney's conduct does not fall below an objective standard of reasonableness if this Court can conceive of a "legitimate strategic reason" for the attorney's decision. People v Clark, 330 Mich.App. 392, 427; 948 N.W.2d 604 (2019). A defendant must also establish the factual predicate of his claim. Putnam, 309 Mich.App. at 248.
Defendant contends that an interlocutory appeal would have been successful on the basis of the available evidence. This, defendant argues, establishes that his trial counsel's failure to file an appeal, which would have been successful, fell below an objective standard of reasonableness. Defendant argues that he was prejudiced because, absent the evidence of his statement to police, the outcome of the plea process would have been different because defendant would not have accepted the plea offer.
Defendant has not shown that his trial counsel's performance fellow below objective standards of reasonableness. Defendant has not pointed to any authority supporting the proposition that a trial attorney's performance is ineffective when he or she does not file an interlocutory appeal of a trial court's ruling, even when a defendant insists upon the interlocutory appeal. There were legitimate strategic reasons for defendant's attorney to forgo an interlocutory appeal. Defendant maintained his innocence and also asserted that he acted in self-defense. If trial counsel believed that defendant could be acquitted under such a theory, an interlocutory appeal would have needlessly prolonged defendant's detention. Moreover, and as will be explained below in more detail, there was sufficient evidence, absent defendant's statements, to convict defendant of manslaughter.
"Decisions regarding what evidence to present and whether to call or question witnesses are presumed to be matters of trial strategy, and this Court will not substitute its judgment for that of counsel regarding matters of trial strategy." People v Davis, 250 Mich.App. 357, 368; 649 N.W.2d 94 (2002). Defendant's trial counsel may have considered defendant's statements to be inconsequential or potentially even helpful to establish self-defense or a lack of malice. Or it may have seemed like the better option to rely on the video as evidence of defendant's state of mind rather than have defendant testify at trial. It is not our role to second guess trial counsel on these matters.
Generally, when a defendant enters a guilty or no-contest plea, he waives his right to challenge the factual basis of his conviction through an appeal by right unless he enters into a conditional plea agreement that reserves the right to challenge an evidentiary ruling. Cook, 323 Mich.App. at 444, 446-447. Although defendant wanted his attorney to file an interlocutory appeal, defendant did not insist on reserving his right to appeal the denial of his motion to suppress his statements through the conclusion of the trial court proceedings. There is no evidence that defendant was incorrectly advised by his trial counsel that he would be able to appeal the order denying his motion to suppress the evidence of his statements to police if he pleaded no-contest. Nor does the record contain any evidence that defendant wished to condition his plea on his ability to appeal the trial court's ruling on his motion to suppress, let alone that the prosecution would have agreed to such a condition.
Defendant also argues that his trial counsel was ineffective by failing to advocate for defendant's motion to withdraw his no-contest plea at the sentencing hearing. Generally, an "attorney must serve as an advocate for the individual's preferred position." MCR 5.732(B). It is true that defendant's attorney did not make an argument in support of defendant's motion to withdraw his no-contest plea. However, as will be demonstrated, the trial court correctly denied defendant's motion to withdraw his guilty plea, and trial counsel cannot give ineffective assistance by failing to make a fruitless motion. See Clark, 330 Mich.App. at 426 (defense counsel is not ineffective for failing to make a meritless motion).
Defendant has failed to show that his trial counsel's performance fell below an objective standard of reasonableness by failing to file an interlocutory appeal or by failing to advocate for defendant's motion to withdraw his plea. Therefore, we need not address whether defendant was prejudiced by his counsel's performance.
IV. MOTION TO WITHDRAW PLEA
A. STANDARDS OF REVIEW
We review a trial court's decision on a motion to withdraw a plea for an abuse of discretion. People v Blanton, 317 Mich.App. 107, 117; 894 N.W.2d 613 (2016). "A trial court abuses its discretion when it selects an outcome that does not fall within the range of reasonable and principled outcomes." People v Young, 276 Mich.App. 446, 448; 740 N.W.2d 347 (2007). The proper interpretation of the court rules is an issue we review de novo. Blanton, 317 Mich.App. at 117.
B. ANALYSIS
Defendant argues that the trial court abused its discretion when it denied his motion to withdraw his no-contest plea. We disagree.
A no-contest plea "is an admission of all the essential elements of a charged offense and, thus, is tantamount to an admission of guilt for the purposes of the criminal case." People v Patmore, 264 Mich.App. 139, 149; 693 N.W.2d 385 (2004). A trial court "may not accept a plea of guilty or nolo contendere unless it is convinced that the plea is understanding, voluntary, and accurate." People v Cole, 491 Mich. 325, 330-331; 817 N.W.2d 497 (2012). Under the court rules, once the trial court has accepted a plea, there is no absolute right for the defendant to withdraw his plea. Blanton, 317 Mich.App. at 117, citing MCR 6.310.
Under MCR 6.310(A), "[t]he defendant has a right to withdraw any plea until the court accepts it on the record." Thereafter, "a plea may be withdrawn on the defendant's motion or with the defendant's consent, only in the interest of justice, and may not be withdrawn if withdrawal of the plea would substantially prejudice the prosecutor because of reliance on the plea." MCR 6.310(B)(1). To show that withdrawal of a plea is in the interest of justice, the defendant bears the burden of establishing "a fair and just reason for withdrawal of the plea." Patmore, 264 Mich.App. at 149 (quotation marks and citation omitted). "Fair and just reasons include reasons like a claim of actual innocence or a valid defense to the charge." People v Fonville, 291 Mich.App. 363, 378; 804 N.W.2d 878 (2011). Only once that burden has been met does the prosecution have the "burden of showing that substantial prejudice would result from allowing withdrawal of the plea." Patmore, 264 Mich.App. at 150.
"When reviewing whether the factual basis for a plea was adequate, this Court considers whether the fact-finder could have found the defendant guilty on the basis of the facts elicited from the defendant at the plea proceeding." Fonville, 291 Mich.App. at 377. There is a factual basis for a plea when the defendant's admissions lead to an "inculpatory inference." Id. An inculpatory inference may still be drawn from what a defendant says even when the defendant denies an element of the crime. Id.
Defendant argues it is in the interest of justice to allow him to withdraw his no-contest plea because he has a valid claim of actual innocence. Even excluding the facts elicited during his custodial interrogation, the testimony at the preliminary examination and the facts to which defendant stipulated at his plea hearing provide a factual basis for defendant's conviction of manslaughter. A defendant is guilty of manslaughter when he commits an unlawful act "with the intent to injure or in a grossly negligent manner that proximately causes death." People v Datema, 448 Mich. 585, 606; 533 N.W.2d 272 (1995). A witness told officers that she heard defendant and Foster arguing in front of their home and then heard a gunshot. There was blood in defendant's driveway. The witness could see that Foster was bleeding and heard defendant say, "She's bleeding." Defendant never called 911, but instead he put Foster in his vehicle and drove her to Henry Ford Hospital, where she died of a gunshot wound. These facts support an inculpatory inference demonstrating defendant's guilt. See Fonville, 291 Mich.App. at 377. Although there was no witness to the shooting other than defendant, the evidence that defendant and Foster were witnessed arguing, there was a gunshot a short time later, and Foster died of a gunshot wound supports the inference that defendant committed the illegal act of shooting Foster, which led to her death, supporting a manslaughter conviction.
Defendant has not brought forth any evidence or challenged the existing evidence in a way that would undermine the factual basis of his plea or suggest he is actually innocent of the charges against him. Rather, it appears that defendant, after availing himself of the prosecution's plea offer, changed his mind about whether taking the offer was in his best interests. When a "defendant simply changed his mind between the date of his plea and the date for sentencing . . . [that is] not a valid basis for withdrawing his plea." People v Everard, 225 Mich.App. 455, 461; 571 N.W.2d 536 (1997).
The trial court did not abuse its discretion when it denied defendant's motion to withdraw his plea. We therefore affirm the order denying defendant's motion.
V. VOLUNTARINESS OF PLEA
A. STANDARDS OF REVIEW
We review a trial court's decision on a motion to withdraw a plea for an abuse of discretion. Blanton, 317 Mich.App. at 117. "A trial court abuses its discretion when it selects an outcome that does not fall within the range of reasonable and principled outcomes." Young, 276 Mich.App. at 448.
B. ANALYSIS
In his final argument, defendant argues that his no-contest plea was entered involuntarily because he was not able to participate in his defense and because of judicial bias. We disagree.
"A no-contest or a guilty plea constitutes a waiver of several constitutional rights, including the privilege against compulsory self-incrimination, the right to a trial by jury, and the right to confront one's accusers." Cole, 491 Mich. at 332. "For a plea to constitute an effective waiver of these rights, the Due Process Clause of the Fourteenth Amendment requires that the plea be voluntary and knowing." Id. at 332-333. "The voluntariness requirement mandates that a defendant entering a plea be fully aware of the direct consequences of the plea." People v Brown, 492 Mich. 684, 694 n 35; 822 N.W.2d 208 (2012) (quotation marks and citation omitted).
The most obvious direct consequence of a plea is the penalty to be imposed, and the trial court must advise a defendant of the maximum possible sentence and any mandatory minimum sentence. People v Pointer-Bey, 321 Mich.App. 609, 616; 909 N.W.2d 523 (2017). To ensure a plea is knowingly, voluntarily, and intelligently made, the trial court "must place the defendant or defendants under oath and personally carry out subrules (B)-(E)." MCR 6.302(A). In order to ensure a plea agreement is voluntarily entered into, under MCR 6.302(C)(4), a trial court must ask the defendant: (1) (if there is no plea agreement) whether anyone has promised the defendant anything, or (if there is a plea agreement) whether anyone has promised anything beyond what is in the plea agreement; (2) whether anyone has threatened the defendant; and (3) whether it is the defendant's own choice to plead guilty.
Defendant contends that his pretrial detention prevented him from participating in his defense, and the trial court was biased against him, leaving him with no choice but to involuntarily accept the prosecution's plea offer. A criminal defendant has the state and federal constitutional right to present a defense. People v Unger, 278 Mich.App. 210, 250; 749 N.W.2d 272 (2008). As part of that right, a "defendant also has a constitutional right to consult with counsel and prepare a defense." People v Hieu Van Hong, 328 Mich.App. 45, 59; 935 N.W.2d 396 (2019). However, the right to present a defense "is not unlimited and is subject to reasonable restrictions." People v King, 297 Mich.App. 465, 473; 824 N.W.2d 258 (2012). When a defendant contends his defense has been prejudiced by a lengthy incarceration, he generally has to offer specific proof of such prejudice. People v Williams, 475 Mich. 245, 264; 716 N.W.2d 208 (2006).
In this regard, defendant first asserts that there was an unreasonable delay between his arrest and his arraignment on the charges against him. MCL 764.26 provides:
Every person charged with a felony shall, without unnecessary delay after his arrest, be taken before a magistrate or other judicial officer and, after being informed as to his rights, shall be given an opportunity publicly to make any statement and answer any questions regarding the charge that he may desire to answer.
"[T]he Fourth Amendment requires a prompt judicial determination of probable cause as a prerequisite to an extended pretrial detention following a warrantless arrest." Co of Riverside v McLaughlin, 500 U.S. 44, 47; 111 S.Ct. 1661; 114 L.Ed.2d 49 (1991). Following a warrantless arrest, a defendant must be brought before a magistrate for a probable-cause determination within 48 hours of the arrest in order for any delay to be presumptively reasonable under the Fourteenth Amendment. Id. at 56. If more than 48 hours passes between the warrantless arrest and a probable-cause determination, "the burden shifts to the government to demonstrate the existence of a bona fide emergency or other extraordinary circumstance." Id. at 57.
Defendant was arrested on May 5, 2018. Defendant was arraigned three days later on May 8, 2018. Defendant is correct that his attorney was not present for the arraignment. When defendant brought to the court's attention that he had an attorney, the court explained that defendant's attorney contacted the court, stated that she would not be able to make the arraignment, and requested that defendant be referred to pretrial services. At the conclusion of the arraignment, the district court set defendant's bond at $500,000, with a requirement for GPS monitoring, and referred the case to pretrial services. The record does not demonstrate that the one-day delay in defendant's arraignment, at which the court granted defense counsel's request to refer defendant to pretrial services, impaired defendant's right to participate in his defense.
An arraignment on a warrant is ordinarily not a critical stage of the proceedings that requires the representation by counsel. People v Green, 260 Mich.App. 392, 399-400; 677 N.W.2d 363 (2004), overruled on other grounds by People v Anstey, 476 Mich. 436; 719 N.W.2d 579 (2006).
Defendant also argues that he was not able to participate in his defense because he could not afford to post bond. "With certain exceptions, a criminal defendant in Michigan is entitled as a matter of constitutional right to have reasonable bail established for pretrial release." People v Davis, 337 Mich.App. 67, 74; 972 N.W.2d 304 (2021). When a defendant is charged with murder, the court has the discretion to either set bond or deny bond if the trial court makes a finding "that the proof of the defendant's guilt is evident or the presumption of the defendant's guilt is great." Id. at 77.
The district court judge exercised its discretion and set bond. The trial court reduced defendant's bond twice, to $250,000 the first time and to $100,000 the second time. Defendant has pointed to no authority suggesting that bond must be set at an amount a defendant has the ability to post. What is ultimately fatal to this argument is that defendant has not shown how his pretrial detention prejudiced him by hindering his defense to the charges against him. Defendant has only asserted that the delay preceding his arraignment and inability to post bond led him to believe he could not receive a fair trial. Accordingly, defendant has not carried his burden of offering specific proof of prejudice. Williams, 475 Mich. at 264.
Defendant next contends he involuntarily entered into the plea agreement because he believed the trial court judge was biased against him on the basis of an alleged friendship with his trial counsel. A criminal defendant has the right to a "neutral and detached magistrate." People v Cheeks, 216 Mich.App. 470, 480; 549 N.W.2d 584 (1996) (quotation marks and citation omitted). Succeeding on a claim of judicial bias requires a defendant to overcome "a heavy presumption of judicial impartiality." People v Wells, 238 Mich.App. 383, 391; 605 N.W.2d 374 (1999). "Disqualification on the basis of bias or prejudice cannot be established merely by repeated rulings against a litigant, even if the rulings are erroneous." In re MKK, 286 Mich.App. 546, 566; 781 N.W.2d 132 (2009). "Absent actual personal bias or prejudice against either a party or the party's attorney, a judge will not be disqualified." Wells, 238 Mich.App. at 391.
There is no evidence that perceived bias on the part of the trial court judge led defendant to involuntarily plead no-contest. In defendant's postsentencing motion to withdraw his plea, which he filed in propria persona, defendant asserted that he would have found new counsel if he knew his attorney did not file an interlocutory appeal because of an alleged friendship between the attorney and the trial court judge. Defendant also suggested that his lack of an awareness of a friendship between his attorney and the judge contributed to his entry of an unknowing plea. This argument is contradicted by defendant's arguments in the trial court that he was unaware of the alleged bias until after the proceedings. Defendant has not provided any examples of the trial court judge's words or actions that displayed bias. This argument lacks merit.
In his brief on appeal, defendant also contends that he raised a conflict of interest on the basis of an improper friendship at his plea hearing. This contention is similarly contradicted by the record because defendant only argued a conflict of interest on the basis of his opinion that the trial court judge was not following the rule of law.
At his plea hearing, defendant knowingly and voluntarily waived his constitutional rights "against compulsory self-incrimination, the right to a trial by jury, and the right to confront one's accusers." Cole, 491 Mich. at 332. At the outset of the hearing, the trial court explained the minimum and maximum sentences to which defendant was agreeing, and defendant said he understood. Defendant then expressed reservations about entering into the plea agreement on the basis of his attorney's failure to file an interlocutory appeal and his belief that the trial court was not following established precedent in its rulings. However, defendant ultimately stated he was satisfied with his counsel's representation. The trial court asked defendant each question required by MCR 6.302(A), and, after each question, defendant stated he understood the rights he was giving up and that he was doing so willingly. After accepting the factual basis of defendant's plea, the trial court asked defendant one more time whether he had been threatened or forced into entering his plea, and defendant said that he had not. Defendant waived his rights knowingly and voluntarily when he pleaded no contest to the charges and is not entitled to relief.
Affirmed.
Garrett, J. (dissenting).
I respectfully dissent from the majority's conclusion that defendant validly waived his Miranda rights and would conclude that the trial court erred by denying the motion to suppress defendant's statements to the police. Although defendant waived any remedy on his Miranda claim by entering a no-contest plea, I would remand for a Ginther hearing to develop a factual record on defendant's ineffective assistance of counsel claim related to trial counsel's failure to file an interlocutory appeal.
Miranda v Arizona, 384 U.S. 436; 86 S.Ct. 1602; 16 L.Ed.2d 694 (1966).
People v Ginther, 390 Mich. 436; 212 N.W.2d 922 (1973).
I. MOTION TO SUPPRESS
Unlike the majority, I would hold that the trial court erred by denying defendant's motion to suppress statements made during his interrogation. While defendant voluntarily waived his Miranda rights, I do not agree that he did so knowingly and intelligently. Therefore, the trial court should have suppressed any statements made after this deficient waiver.
We "review de novo the trial court's ultimate decision on a motion to suppress." People v Frohriep, 247 Mich.App. 692, 702; 637 N.W.2d 562 (2001). That means we review the legal issue independently, "with no required deference to the trial court." People v Beck, 504 Mich. 605, 618; 939 N.W.2d 213 (2019). "Although engaging in de novo review of the entire record, this Court will not disturb a trial court's factual findings regarding a knowing and intelligent waiver of Miranda rights unless that ruling is found to be clearly erroneous." People v Cheatham, 453 Mich. 1, 30; 551 N.W.2d 355 (1996) (quotation marks and citations omitted). Factual findings are clearly erroneous when the reviewing court is left with a "definite and firm conviction that the trial court made a mistake." People v Wiley, 324 Mich.App. 130, 165; 919 N.W.2d 802 (2018) (quotation marks and citation omitted).
In Miranda v Arizona, 384 U.S. 436; 86 S.Ct. 1602; 16 L.Ed.2d 694 (1966), the United States Supreme Court held that "the accused must be given a series of warnings before being subjected to 'custodial interrogation' in order to protect his constitutional privilege against self-incrimination." People v Tanner, 496 Mich. 199, 207; 853 N.W.2d 653 (2014), citing Miranda, 384 U.S. at 444-445, 477-479. The accused "must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed." Miranda, 384 U.S. at 444. After the suspect is provided with the required warnings, he may waive his Miranda rights, so long as the waiver is knowing, intelligent, and voluntary. Tanner, 496 Mich. at 209.
This privilege stems from the Fifth Amendment of the United States Constitution, which provides that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself . . . ." U.S. Const, Am V. See also Const 1963, art 1, § 17.
When reviewing the validity of a Miranda waiver, there are "two distinct dimensions" of the inquiry-whether the waiver was voluntary, and whether it was knowing and intelligent. Moran v Burbine, 475 U.S. 412, 421; 106 S.Ct. 1135; 89 L.Ed.2d 410 (1986). The Moran Court explained:
First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the totality of the circumstances surrounding the interrogation reveal both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived. [Id. (quotation marks and citation omitted).]
Put differently, "whether a waiver of Miranda rights is voluntary depends on the absence of police coercion," but whether it was "knowing and intelligent requires an inquiry into the suspect's level of understanding, irrespective of police behavior." People v Daoud, 462 Mich. 621, 635-636; 614 N.W.2d 152 (2000). To establish a knowing and intelligent waiver, the prosecution must prove by a preponderance of the evidence "that the accused understood that he did not have to speak, that he had the right to the presence of counsel, and that the state could use what he said in a later trial against him." Cheatham, 453 Mich. at 27, 29. A written waiver is strong evidence of a valid waiver. Id. at 31. "Intoxication from alcohol or other substances can affect the validity of a waiver of Fifth Amendment rights, but is not dispositive." People v Tierney, 266 Mich.App. 687, 707; 703 N.W.2d 204 (2005).
The trial court clearly erred when it found that defendant knowingly and intelligently waived his Miranda rights, despite being intoxicated while making his statements to the police. First, the trial court's specific finding of intoxication was well-supported by a review of the interrogation video. Not only did defendant state that he had been drinking that night, but he spoke slowly, his eyes did not appear to be all the way open, and he alternated between slumping in his chair and leaning against the wall. Besides defendant's intoxication, Detective Menge's execution of the Miranda waiver process was, at best, misleading. When the interview began, Detective Menge quickly read defendant the Miranda warnings off of the waiver form. Detective Menge continued: "If you understand that I just read you this form-actually I read you each line. Could you just initial each line and sign here? It just means I read you this form. That's all. Nothing more." That statement was untrue. The form stated that, by signing it, defendant was acknowledging he read and understood his Miranda rights. Detective Menge passed the waiver form to defendant without instructing or inviting defendant to read it. Defendant immediately began signing the form after Detective Menge slid it across the table to him, and Detective Menge simultaneously asked about defendant's dog. Defendant and Detective Menge spoke about defendant's dog the entire time defendant was signing and initialing the waiver form. Defendant did not appear to read the form, and he was never asked if he understood his rights.
While defendant's signature and initials on the form support a finding of a valid waiver, Cheatham, 453 Mich. at 31, the prosecution nevertheless failed to prove by a preponderance of the evidence that defendant made a knowing and intelligent waiver of his rights. Defendant was given inaccurate information about the effect of signing the waiver. Rather than telling defendant that the form contained an acknowledgment that he understood his rights, Detective Menge told defendant that the form merely acknowledged that his rights had been read to him. And rather than encouraging defendant to read the form himself, Detective Menge engaged an intoxicated defendant in small talk while he watched defendant sign the form. Defendant never verbalized an understanding of his Miranda rights, and his later references to an attorney demonstrate that he may not have understood the rights he was waiving. Under the totality of the circumstances, defendant did not demonstrate the requisite level of comprehension to make a knowing and intelligent waiver. See Moran, 475 U.S. at 421.
I agree with the majority that Detective Menge was not required to cease questioning during the interrogation when defendant mentioned speaking with an attorney because defendant did not unequivocally invoke his right to counsel. See Davis v United States, 512 U.S. 452, 459; 114 S.Ct. 2350; 129 L.Ed.2d 362 (1994).
In Cheatham, our Supreme Court concluded that the defendant validly waived his Miranda rights where "the police officers who questioned defendant administered the required warnings, sought to insure that he understood each warning by inquiring after each warning whether he understood what the warning meant, and obtained an express written waiver before questioning him." Cheatham, 453 Mich. at 30. Here, unlike in Cheatham, there was no evidence or confirmation that defendant understood the rights he was waiving. Detective Menge inaccurately portrayed the substance of the waiver form when he told defendant that by signing the waiver form, defendant was merely acknowledging that Detective Menge had read the form. The totality of the circumstances establish that defendant lacked a "full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it." Moran, 475 U.S. at 421. Therefore, I would conclude that the trial court clearly erred by finding that defendant made a knowing and intelligent waiver.
Despite defendant's insufficient waiver, I agree with the majority that defendant is not entitled to relief on this basis alone. "[I]n protecting a defendant's Fifth Amendment privilege against self-incrimination, Miranda safeguards a fundamental trial right." Withrow v Williams, 507 U.S. 680, 691; 113 S.Ct. 1745; 123 L.Ed.2d 407 (1993) (quotation marks and citations omitted). For that reason, "[i]f the custodial interrogation is not preceded by an adequate warning, statements made during the custodial interrogation may not be introduced into evidence at the accused's criminal trial." People v Elliott, 494 Mich. 292, 301; 833 N.W.2d 284 (2013), citing Miranda, 384 U.S. at 444-445. By entering an unconditional no-contest plea, defendant waived his panoply of trial rights. As our Supreme Court has held, "[w]here the claim sought to be appealed involves only the capacity of the state to prove defendant's factual guilt, it is waived by a plea of guilty or [no contest]." People v New, 427 Mich. 482, 496; 398 N.W.2d 358 (1986). This rule of waiver includes the right to "raise as error on appeal the denial of a motion to suppress evidence." Id. at 485. Thus, while the trial court erred by denying defendant's motion to suppress, defendant waived his right to appeal that decision by entering a no-contest plea. See id.
As will be discussed, there is no record evidence indicating whether trial counsel advised defendant about the possibility of entering a conditional no-contest plea to preserve a challenge to the trial court's denial of his motion to suppress.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
Potentially recognizing that he waived his right to challenge the trial court's denial of his motion to suppress by pleading no contest, defendant additionally argues that his retained trial counsel was ineffective by failing to pursue an interlocutory appeal of that decision. I would remand for a Ginther hearing on this claim.
Defendant filed his application for leave to appeal in this Court concurrently with a motion to remand for a Ginther hearing. A motion panel of this Court granted defendant's application but denied the motion to remand. People v Young, unpublished order of the Court of Appeals, entered January 26, 2022 (Docket No. 359570). Nevertheless, this Court is authorized "at any time" and "on the terms it deems just" to "remand the case to allow additional evidence to be taken." MCR 7.216(A)(5). I would exercise this discretion here.
The Michigan and United States Constitutions require that criminal defendants receive the assistance of counsel in their defense. Const 1963, art 1, § 20; U.S. Const Am VI. When reviewing an ineffective assistance of counsel claim, Michigan courts apply the two-pronged test adopted by the United States Supreme Court in Strickland v Washington, 466 U.S. 668; 104 S.Ct. 2052; 80 L.Ed.2d 674 (1984). People v Pickens, 446 Mich. 298, 309, 338; 521 N.W.2d 797 (1994). Under this test, a defendant must establish (1) that "counsel's performance fell below an objective standard of reasonableness" and (2) that "but for counsel's deficient performance, a different result would have been reasonably probable." People v Armstrong, 490 Mich. 281, 290-291; 806 N.W.2d 676 (2011), citing Strickland, 466 U.S. at 687-688, 694-696. For the performance prong, "a defendant must overcome the strong presumption that counsel's performance was born from a sound trial strategy." People v Trakhtenberg, 493 Mich. 38, 52; 826 N.W.2d 136 (2012). And to meet the prejudice standard in the plea context, the defendant must show a reasonable probability that the outcome of the plea process would have been different had counsel not performed unreasonably. People v Douglas, 496 Mich. 557, 592; 852 N.W.2d 587 (2014).
Regarding trial counsel's performance, the available record evidence supports defendant's contention that he urged counsel to file an interlocutory appeal of the trial court's denial of the motion to suppress and that counsel failed to do so. Prior to entering his no-contest plea, the trial court asked defendant whether he was satisfied with trial counsel's representation. Defendant stated that he had wanted an interlocutory appeal filed on the denial of the motion to suppress but that counsel did not file it. And on appeal, defendant has offered an affidavit in which he attests that counsel agreed to file an interlocutory appeal when defendant hired counsel to replace his prior attorney. This allegation aligns with the timeline of events, as the trial court denied defendant's motion to suppress on September 7, 2018. Defendant's new retained counsel entered his first appearance in the case one week later, on September 14, 2018, so time remained to file an interlocutory appeal. See MCR 7.205(A).
Putting aside our disagreement on the merits of defendant's motion to suppress, the majority argues that counsel had legitimate strategic reasons to forgo an interlocutory appeal. While a presumption exists that counsel exercised sound strategy, "a court cannot insulate the review of counsel's performance by calling it trial strategy; counsel's strategy must be sound, and the decisions as to it objectively reasonable." People v Ackley, 497 Mich. 381, 388-389; 870 N.W.2d 858 (2015) (quotation marks and citation omitted). I agree that counsel may have had sound strategic reasons for declining to file an interlocutory appeal. But without any record of those reasons, and considering defendant's contention that he hired new trial counsel to file such an appeal, I would allow defendant to explore counsel's rationale at a Ginther hearing before concluding that defendant failed to establish counsel's deficient performance.
Similarly, the majority concludes that defendant is not entitled to relief because there was no evidence that "defendant wished to condition his plea on his ability to appeal the trial court's ruling on his motion to suppress, let alone that the prosecution would have agreed to such a condition." The majority also notes there was no evidence that "defendant was incorrectly advised by his trial counsel that he would be able to appeal the order denying his motion to suppress the evidence of his statements to police if he pleaded no-contest." Again, I believe the better vehicle for resolving this issue would first be a Ginther hearing after which testimony could establish what advice, if any, trial counsel gave to defendant about the availability of a conditional plea. Defendant simply may not have known that a conditional plea was a possibility at the time, so the absence of evidence below that he wished to condition his plea may not be particularly useful.
Finally, the majority states that "[defendant has not pointed to any authority supporting the proposition that a trial attorney's performance is ineffective when he or she does not file an interlocutory appeal of a trial court's ruling, even when a defendant insists upon the interlocutory appeal." That is factually accurate but unhelpful because it appears that no published caselaw has addressed whether such a claim is possible. The absence of a published decision is not fatal to defendant's claim, as his claim rests on the well-established two-prong test for establishing ineffective assistance of counsel. Defendant's brief adequately analyzes this legal framework for an ineffective assistance claim in the plea context. That said, I also note that this Court has, in several unpublished decisions, recognized the possibility of a meritorious ineffective assistance of counsel claim based on trial counsel's failure to file an interlocutory appeal. See, e.g., People v McCants, unpublished per curiam opinion of the Court of Appeals, issued July 17, 2018 (Docket No. 331248), p 10; People v Cavender, unpublished per curiam opinion of the Court of Appeals, issued July 10, 2018 (Docket No. 336610), p 5; People v Booker, unpublished per curiam opinion of the Court of Appeals, issued April 11, 2017 (Docket Nos. 326570, 332975), pp 11-12. I agree that under the proper circumstances, such a claim is viable. Because the limited factual record makes it difficult to assess the merits of defendant's ineffective assistance claim, I would remand for a Ginther hearing.
Unpublished decisions are not binding, but we may consider them for their persuasive value. People v Swenor, 336 Mich.App. 550, 563 n 7; 971 N.W.2d 33 (2021).
I agree with the majority's discussion of the voluntariness of defendant's plea in section V of its opinion. But I would decline to address the separate issue of plea withdrawal in section IV until the record is developed at a Ginther hearing. Whether withdrawal is in the interest of justice depends, at least in part, on whether defendant was denied the effective assistance of counsel through counsel's failure to pursue an interlocutory appeal. Had an interlocutory appeal been successful, as I believe it would have been, the admissible evidence against defendant would have been far weaker without his inculpatory statements. As a result, defendant would have been in a more favorable position and the plea process may have looked very different.
III. CONCLUSION
I respectfully dissent from the majority's conclusion that the trial court properly denied defendant's motion to suppress because the prosecution failed to establish that defendant knowingly and intelligently waived his Miranda rights. While I would hold that defendant's statements to the police should have been suppressed by the trial court, defendant waived any remedy under Miranda by pleading no contest. Rather than affirm, however, I would remand for a requested Ginther hearing on defendant's claim that trial counsel was ineffective for failing to file an interlocutory appeal of the trial court's order denying defendant's motion to suppress.