1.8Motion to Withdraw Plea After Sentence

“The defendant may file a motion to withdraw the plea within the time for filing an application for leave to appeal under MCR 7.205(A)(2)(a) and [MCR 7.205(A)(2)(b)(i)-(iii)].” MCR 6.310(C)(1). MCR 7.205(A)(2) provides, in relevant part:

“In a criminal case involving a final judgment or final order entered in that case, an application for leave to appeal filed on behalf of the defendant must be filed within the later of:

(a) 6 months after entry of the judgment or order; or

(b) 42 days after:

(i) an order appointing appellate counsel or substitute counsel, or denying a request for appellate counsel, if the defendant requested counsel within 6 months after entry of the judgment or order to be appealed;

(ii) the filing of transcripts ordered under MCR 6.425(G)(1)(f), if the defendant requested counsel within 6 months after entry of the judgment or order to be appealed;

(iii) the filing of transcripts ordered under MCR 6.433, if the defendant requested the transcripts within 6 months after entry of the judgment or order to be appealed[.]”

“Thereafter, the defendant may seek relief only in accordance with the procedure set forth in [MCR 6.500 et seq¹].” MCR 6.310(C)(2).

“If filed by an unrepresented individual who is incarcerated in a prison or jail, a pleading or other document must be deemed timely filed if it was deposited in the institution’s outgoing mail on or before the filing deadline. Proof of timely filing may include a receipt of mailing, a sworn statement setting forth the date of deposit and that postage has been prepaid, or other evidence (such as a postmark or date stamp) showing that the document was timely deposited and that postage was prepaid.” MCR 1.112.

“If the trial court determines that there was an error in the plea proceeding that would entitle the defendant to have the plea set aside, the court must give the advice or make the inquiries necessary to rectify the error and then give the defendant the opportunity to elect to allow the plea and sentence to stand or to withdraw the plea.” MCR 6.310(C)(3). “If the defendant elects to allow the plea and sentence to stand, the additional advice given and inquiries made become part of the plea proceeding for purposes of further proceedings, including appeals.” Id.

“A defendant seeking to withdraw his or her plea after sentencing must demonstrate a defect in the plea-taking process.” People v Brown (Shawn), 492 Mich 684, 693 (2012).

In Brown, 492 Mich at 687-688, the defendant pleaded guilty, as a second-offense habitual offender under MCL 769.10, to second-degree home invasion. The defendant was advised at his plea hearing that the maximum sentence for second-degree home invasion was 15 years in prison; however, the defendant was subsequently sentenced, as an habitual offender, to a maximum prison term of more than 22 years. Brown, 492 Mich at 688. The Michigan Supreme Court concluded that MCR 6.302(B)(2) requires that “before pleading guilty, a defendant must be notified of the maximum possible prison sentence with habitual-offender enhancement, because the enhanced maximum becomes the ‘maximum possible prison sentence’ for the principal offense.” Brown, 492 Mich at 693-694, overruling People v Boatman, 273 Mich App 405, 406-410 (2006). The Court additionally held that “[MCR 6.310(C)(3)] . . . provides the proper remedy for a plea that is defective under MCR 6.302(B)(2), which is to allow the defendant the opportunity to withdraw his or her plea.” Brown, 492 Mich at 698.²

A plea is not “understanding or knowingly entered into when it was, in significant part, induced on the basis of an inaccurate understanding of the minimum and maximum possible prison sentence[.]” People v Guyton, 511 Mich 291, 302-304 (2023) (remanding to allow the defendant to elect to allow her plea to stand or to withdraw her plea where “defendant was led to believe that her guilty plea would result in the dismissal of a third-offense habitual offender sentence enhancement—a likely consequence and relevant circumstance of her plea—when she was subject only to a second-offense habitual offender enhancement”). When evaluating a motion to withdraw a plea when the defendant was given inaccurate information, the focus should not be on “whether a defendant receives any benefit from the bargained-for plea,” but rather, whether a defendant “had an exaggerated belief in the benefits of the plea agreement,” and whether any inaccurate information was corrected. Id. at 303-304 (holding that “[w]hen a defendant has been misinformed by prosecutors about the benefit of the bargain they have struck, the defendant does not have sufficient awareness of the relevant circumstances”).

“[U]nder MCR 6.310(C), a defendant, upon showing a defect in the plea-taking process, is entitled to have the error corrected by the trial court and to thereafter have ‘the opportunity to elect to allow the plea and sentence to stand or to withdraw the plea.’” People v Blanton, 317 Mich App 107, 121, 126 (2016) (“[b]ecause the plea agreement was indivisible, the trial court did not abuse its discretion by allowing defendant to withdraw the plea in its entirety, rather than withdraw only the plea affected by the trial court’s omission”). See also People v Coleman, 327 Mich App 430, 444 (2019) (where the defendant “pleaded to multiple charges at the same time, some charges were dropped in exchange for her plea, the charges and the plea agreement were described in singular documents, and the plea was accepted in a single proceeding,” the defendant “should have been afforded the right to withdraw her entire plea” despite the fact that the defect—failure to inform the defendant about mandatory registration as a sex offender—only pertained to one of the charges); People v Pointer-Bey, 321 Mich App 609, 617 (2017) (where the “defendant was not informed of the maximum possible sentence for felon-in-possession,” the erroneous advice “rendered defendant’s plea proceeding defective[; c]onsequently, defendant was entitled to withdraw his plea in its entirety” and be given “‘the opportunity to elect to allow the plea and sentence to stand or to withdraw the plea’ pursuant to MCR 6.310(C)”) (citations omitted).

See also the Michigan Judicial Institute’s Motion to Withdraw Plea After Sentence Checklist.

A.Ineffective Assistance of Counsel

“[T]he negotiation of a plea bargain is a critical phase of litigation for purposes of the Sixth Amendment right to effective assistance of counsel.” Padilla v Kentucky, 559 US 356, 373 (2010).³ See also Missouri v Frye, 566 US 134, 143 (2012) (“plea bargains have become so central to the administration of the criminal justice system that defense counsel have responsibilities in the plea bargain process, responsibilities that must be met to render the adequate assistance of counsel that the Sixth Amendment requires in the criminal process at critical stages”).

“[C]laims of ineffective assistance of counsel in the plea bargain context are governed by the two-part test set forth in Strickland[ v Washington, 466 US 668, 687 (1984)].” Frye, 566 US at 140 (objective standard of reasonableness and resulting prejudice).

1.Lapsed or Rejected Plea Offer

a.Establishing Ineffective Assistance of Counsel Under Strickland

“[A]s a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused[,] . . . [and w]hen defense counsel allow[s such an] offer to expire without advising the defendant or allowing him to consider it, defense counsel [does] not render the effective assistance the Constitution requires.” Frye, 566 US at 145. “To show prejudice from ineffective assistance of counsel where a plea offer has lapsed or been rejected because of counsel’s deficient performance, defendants must demonstrate a reasonable probability they would have accepted the earlier plea offer[;] . . . a reasonable probability the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it, if they had the authority to exercise that discretion under state law[;] . . . [and] a reasonable probability that the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time.” Id. at 147.

“In Frye, defense counsel did not inform the defendant of the plea offer; and after the offer lapsed the defendant still pleaded guilty, but on more severe terms.” Lafler v Cooper, 566 US 156, 160 (2012) (Frye, 566 US at 151, was remanded for the state court to determine whether the defendant satisfied the Strickland requirements). In Lafler, 566 US at 160, “[a] favorable plea offer was reported to the client but, on advice of counsel, was rejected[;]” “after the plea offer had been rejected, there was a full and fair trial before a jury[ and] [a]fter a guilty verdict, the defendant received a sentence harsher than that offered in the rejected plea bargain.” The Lafler Court determined that “Strickland’s two-part test [was satisfied:] . . . the fact of deficient performance [was] conceded by all parties . . . and [the defendant showed] that but for counsel’s deficient performance there [was] a reasonable probability he and the trial court would have accepted the guilty plea.” “In addition, as a result of not accepting the plea and being convicted at trial, [the defendant] received a minimum sentence [much] greater than he would have received under the plea.” Id. at 274. Cf. People v Douglas, 496 Mich 557, 590-591, 598 (2014) (“[a]lthough during the plea-bargaining process counsel indisputably misadvised the defendant of the consequences he faced if convicted at trial, the trial court did not reversibly err in determining that the defendant ha[d] not shown prejudice as a result of counsel’s deficient performance[;]” “the record amply support[ed] the conclusion that, even had the defendant been properly advised of the consequences he faced if convicted at trial, it was not reasonably probable that he would have accepted the prosecution’s plea offer”).

“The Lafler opinion did not create a new rule—it merely determined how the Strickland test applied to the specific factual context concerning plea bargaining.” People v Walker (On Remand), 328 Mich App 429, 448 (2019). Accordingly, Lafler applies retroactively. Walker, 328 Mich App at 436 (affirming the trial court’s “order ruling that defendant was denied the effective assistance of counsel when his trial attorney failed to inform defendant of the plea offer”).

b.Remedy

“The specific injury suffered by defendants who decline a plea offer as a result of ineffective assistance of counsel and then receive a greater sentence as a result of trial can come in at least one of two forms.” Lafler, 566 US at 170. “In some cases, the sole advantage a defendant would have received under the plea is a lesser sentence.” Id. at 170-171. “This is typically the case when the charges that would have been admitted as part of the plea bargain are the same as the charges the defendant was convicted of after trial.” Id. at 171. “In this situation the court may conduct an evidentiary hearing to determine whether the defendant has shown a reasonable probability that but for counsel’s errors he [or she] would have accepted the plea.” Id. “If the showing is made, the court may exercise discretion in determining whether the defendant should receive the term of imprisonment the government offered in the plea, the sentence he [or she] received at trial, or something in between.” Id.

“In some situations it may be that resentencing alone will not be full redress for the constitutional injury.” Lafler, 566 US at 171. “If, for example, an offer was for a guilty plea to a count or counts less serious than the ones for which a defendant was convicted after trial, or if a mandatory sentence confines a judge’s sentencing discretion after trial, a resentencing based on the conviction at trial may not suffice.” Id. “In these circumstances, the proper exercise of discretion to remedy the constitutional injury may be to require the prosecution to reoffer the plea proposal.” Id. “Once this has occurred, the judge can then exercise discretion in deciding whether to vacate the conviction from trial and accept the plea or leave the conviction undisturbed.” Id.

“In implementing a remedy in both of these situations, the trial court must weigh various factors[.]” Lafler, 566 US at 171. “[T]wo considerations . . . are of relevance[: f]irst, a court may take account of a defendant’s earlier expressed willingness, or unwillingness, to accept responsibility for his or her actions[; s]econd, . . . any information concerning the crime that was discovered after the plea offer was made[] . . . can be consulted in finding a remedy that does not require the prosecution to incur the expense of conducting a new trial.” Id. at 171-172.

2.Erroneous Advice Leading to Entry of Plea

“[I]n reviewing a claim of ineffective assistance of counsel arising out of a guilty plea, the courts should focus upon whether the defendant’s plea was made voluntarily and understandingly.” In re Oakland Co Pros, 191 Mich App 113, 120 (1991).

“Where . . . a defendant is represented by counsel during the plea process and enters his [or her] plea upon the advice of counsel, the voluntariness of the plea depends on whether counsel’s advice ‘was within the range of competence demanded of attorneys in criminal cases.’” Hill, 474 US at 56, quoting McMann v Richardson, 397 US 759, 771 (1970).

Strickland, 466 US at 694, ordinarily requires the defendant to establish “‘a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’” Lee v United States, 582 US 357, 364 (2017), quoting Roe v Flores-Ortega, 528 US 470, 482 (2000). However, where a claim of ineffective assistance of counsel arises from the acceptance of a plea, the defendant must establish prejudice by demonstrating “a ‘reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.’” Lee, 582 US at 364-365, quoting Hill, 474 US at 59.⁴

Under this type of claim, “counsel’s ‘deficient performance arguably led not to a judicial proceeding of disputed reliability, but rather to the forfeiture of a proceeding itself.’” Lee, 582 US at 364 (quoting Flores-Ortega, 528 US at 482-483, and noting that while “‘a strong presumption of reliability [ordinarily applies] to judicial proceedings,’” such a presumption cannot be accorded “‘to judicial proceedings that never took place’”).

For a defendant deciding whether to plead guilty, “there is more to consider than simply the likelihood of success at trial,” and when the consequences of a conviction are dire, “even the smallest chance of success at trial may look attractive.” Lee, 582 US at 367. “Rather than asking how a hypothetical trial would have played out absent the error, the [court should consider] whether there was an adequate showing that the defendant, properly advised, would have opted to go to trial.” Id. at 365. In making this determination, “[c]ourts should not upset a plea solely because of post hoc assertions from a defendant about how he would have pleaded but for his attorney’s deficiencies”; “[j]udges should instead look to contemporaneous evidence to substantiate a defendant’s expressed preferences.” Id. at 358, 369 (rejecting “a per se rule that a defendant with no viable defense cannot show prejudice from the denial of his right to trial”).

In Lee, 582 US at 360-362, the defendant, a lawful permanent resident of the United States, accepted a plea agreement and pleaded guilty to a drug charge after defense counsel erroneously advised him that the conviction would not result in deportation.⁵ The United States Supreme Court held that the defendant had demonstrated prejudice and was entitled to relief from his conviction on ineffective-assistance-of-counsel grounds, even though he “had no bona fide defense, not even a weak one.” Id. at 363, 371 (cleaned up). Although it was unlikely that he would be acquitted after a trial, “the defendant was prejudiced by the denial of the entire judicial proceeding   to which he had a right” because “deportation was the determinative issue in his decision whether to accept the plea deal.” Id. at 364, 369 (noting that the defendant “asked his attorney repeatedly whether there was any risk of deportation from the proceedings,” and that both the defendant and his attorney testified at the evidentiary hearing on the defendant’s motion to vacate his conviction and sentence that the defendant “would have gone to trial if he had known about the deportation consequences”) (cleaned up). The defendant’s “claim that he would not have accepted a plea had he known it would lead to deportation was backed by substantial and uncontroverted evidence”; accordingly, he “demonstrated a reasonable probability that, but for his counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Id. at 371 (cleaned up).

B.Standard of Review

Appellate courts “review[] for an abuse of discretion a trial court’s ruling on a motion to withdraw a plea.” People v Brown (Shawn), 492 Mich 684, 688 (2012).

C.Plea Withdrawal by Prosecutor

“[A]s a general rule, a trial court may not vacate a plea on its own motion because the plain language of MCR 6.310(B)(1) and [MCR] 6.310(E)^[6] contemplate that plea withdrawal must be made by the defendant’s motion, with the defendant’s approval, or by the prosecutor only when a defendant has failed to perform.” People v Jackson, ___ Mich App ___, ___ (2023). However, the Court has “acknowledged that situations may arise that are simply not covered by the court rules.” Id. at ___ (quotation marks and citation omitted). For example, “a prosecutor should be permitted to withdraw a plea when the trial court imposed a sentence much shorter than the one the parties contemplated in their plea agreement.” Id. at ___. Similarly, in the context of sentencing for a probation violation following a guilty plea, where the trial court revoked the defendant’s probation and sentenced him to a term of 30 months to 15 years in prison, but the court was not aware of new amendments to MCL 771.4b under which defendant’s probation should not have been revoked and the maximum allowable sentence was 30 days in jail, the sentence was invalid and the trial court correctly vacated the defendant’s plea and held a new probation violation hearing over the defendant’s objection. Jackson, ___ Mich App at ___. In Jackson, the defendant “repeatedly stated that he does not wish to withdraw his plea,” but the prosecutor argued “that the plea should be withdrawn, if not by defendant, then on behalf of plaintiff.” Id. at ___. In other words, the defendant asked the Court “to order the trial court to reform the plea agreement in a manner that would allow him to keep the plea but change the penalty.” Id. at ___. However, “a trial court cannot simply reject or change a term in the plea agreement without allowing the prosecutor an opportunity to withdraw from the agreement[.]” Id. at ___. Accordingly, “the trial court correctly ordered that the plea agreement is vacated on the basis of plaintiff’s request for withdrawal.” Id. at ___.