People v. Corteway

538 N.W.2d 60, 212 Mich. App. 442

• Court: Michigan Court of Appeals
• Decided: August 1, 1995
• Docket: Docket 157053, 167861
• Status: Published

Opinions

Mackenzie, J.

Defendant pleaded guilty of first-degree murder, MCL 750.316; MSA 28.548, and was sentenced to life imprisonment without parole. He appealed as of right, and this Court remanded to the trial court to allow defendant to move to withdraw his plea on the basis of ineffective assistance of counsel. On remand, the trial court entered an order granting defendant’s motion to withdraw his guilty plea. The people appeal that order by leave granted. We reverse and remand for reinstatement of defendant’s conviction.

In People v Pickens, 446 Mich 298; 521 NW2d 797 (1994), our Supreme Court adopted the test set forth in Strickland v Washington, 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 674 (1984), for determining whether a defendant has been denied effective assistance of counsel. Under that test, a defendant must show, first, that counsel’s performance was deficient, and, second, that the deficient performance was prejudicial to the defendant. Id.

When reviewing a claim of ineffective assistance of counsel arising out of a guilty plea, courts apply the test set forth in Strickland in light of McMann v Richardson, 397 US 759; 90 S Ct 1441; 25 L Ed 2d 763 (1970), and Tollett v Henderson, 411 US 258; 93 S Ct 1602; 36 L Ed 2d 235 (1973). People v Thew, 201 Mich App 78, 89; 506 NW2d 547 (1993). See also In re Oakland Co Prosecutor, 191 Mich App 113, 120-122; 477 NW2d 455 (1991). To establish ineffective assistance of counsel in the context of a guilty plea, courts must determine whether the defendant tendered a plea voluntarily and understandingly. Thew, supra, p 89; People v Mayes (After Remand), 202 Mich App 181, 183; 508 NW2d 161 (1993).

Guilty pleas have been found to be involuntary or unknowing on the basis of ineffective assistance of counsel where defense counsel failed to explain adequately the nature of the charges or the consequences of the guilty plea. Thew, supra, p 91. Guilty pleas have also been found to be involuntary or unknowing where counsel has failed to discuss possible defenses to the charges to which the defendant is pleading guilty. Id. In these situations, counsel’s deficient representation effectively renders the defendant’s guilty plea involuntary because it deprives the defendant of the ability to make an intelligent and informed choice from among his alternative courses of action. Thew, supra, p 92, quoting Rinehart v Brewer, 561 F2d 126, 132 (CA 8, 1977).

In this case, the testimony at the hearing on remand established that defendant and his attorney discussed the nature and sentencing consequences of the first-degree murder charge, the possible defenses, the possibility of a conviction of a lesser included offense, the strength of the prosecution’s case and of the available defenses, and the advantages and disadvantages of going to trial and pleading guilty. Counsel, however, did not specifically recommend which course of action defendant should take. The trial court concluded that, although counsel’s representation was otherwise adequate, counsel’s "neutrality” — his failure to make a specific recommendation that defendant either plead guilty or go to trial — constituted ineffective assistance of counsel. We reject this analysis.

The decision to plead guilty is the defendant’s, to be made after consultation with counsel and after counsel has explained the matter to the extent reasonably necessary to permit the client to make an informed decision. See MRPC 1.2(a) and MRPC 1.4(b). While an attorney may elect to offer a client a specific recommendation whether to go to trial or to plead guilty in the course of that consultation, we decline to hold that such a recommendation is required or that the failure to provide such a recommendation necessarily constitutes ineffective assistance of counsel. The test is whether the attorney’s assistance enabled the defendant to make an informed and voluntary choice between trial and a guilty plea. Absent unusual circumstances, where a counsel has adequately apprised a defendant of the nature of the charges and the consequences of a plea, an informed and voluntary choice whether to plead guilty or go to trial can be made by the defendant without a specific recommendation from counsel. See Jones v Estelle, 584 F2d 687, 690 (CA 5, 1978); Trahan v Estelle, 544 F2d 1305, 1319-1320 (CA 5, 1977) (Goldberg, J., concurring).

The record in this case shows that the defense counsel made certain that defendant was aware of the nature of the charges and the consequences of his guilty plea or alternative courses of action, including the existence of possible defenses and lesser included offenses. Thew, supra. The record discloses no unusual or special circumstances in this case that would require defendant’s counsel specifically to advise him to plead guilty or to go to trial. Furthermore, the fact that defendant was charged with an offense punishable by life imprisonment without parole did not, without more, obligate defense counsel to object to defendant’s decision to plead guilty or to insist that he go to trial. See People v Stewart, 442 Mich 890; 498 NW2d 430 (1993). Under these circumstances, the trial court erred in finding ineffective assistance of counsel. Accordingly, we reverse the order granting defendant’s motion to withdraw his guilty plea.

In addition to his ineffective assistance of counsel claim, defendant also contends in two related arguments that he should be allowed to withdraw his guilty plea because the trial court did not comply with the requirements of MCR 6.301(B)(2). Defendant did not move in the trial court to withdraw his guilty plea on these grounds, nor did he raise the claims in a timely manner before this Court. Therefore, they are not properly preserved for our review. MCR 6.311(A) and (C); MCR 7.208(B); MCR 7.211(C)(1).

Reversed and remanded for reinstatement of defendant’s conviction. We retain no further jurisdiction.

T. R. Thomas, J., concurred.