6.18Plea Must Be Understanding, Voluntary, and Accurate
MCR 6.610(F)(1) provides that, before accepting a plea of guilty or nolo contendere, the court must “determine that the plea is understanding, voluntary, and accurate.”
“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.” People v Cole, 491 Mich 325, 332 (2012). However, “[f]or 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. “A defendant who has entered a plea does not waive his [or her] opportunity to attack the voluntary and intelligent character of the plea by arguing that his or her counsel provided ineffective assistance during the plea bargaining process.” People v Horton, 500 Mich 1034, 1034 (2017), citing Hill v Lockhart, 474 US 52, 56-57 (1985), and “overrul[ing] People v Vonins (After Remand), 203 Mich App 173, 175-176 (1993), and People v Bordash, 208 Mich App 1 (1994), to the extent that they are inconsistent with Hill[.]”
It is the duty of the judge to be satisfied that a plea is made freely, with full knowledge of the nature of the accusation, and without undue influence. MCL 768.35. The court may not accept a guilty or nolo contendere (no contest) plea unless it is convinced that the plea is understanding, voluntary, and accurate. MCR 6.302(A); MCR 6.610(F)(1). In other words, a defendant must be afforded due process. See Cole, 491 Mich at 332.
A guilty plea should not be accepted by a trial court until facts sufficient to establish the defendant’s guilt have been placed on the record. People v Haack, 396 Mich 367, 375 (1976).
The adequacy of the factual basis for a guilty plea is reviewed by examining “whether the factfinder could properly convict on the facts elicited from the defendant at the plea proceeding.” People v Brownfield (After Remand), 216 Mich App 429, 431 (1996), citing People v Booth, 414 Mich 343, 360 (1982).
Before a district court may accept a defendant’s guilty or nolo contendere plea, the court must comply with the requirements of MCR 6.610(F), which requires that the court inform the defendant of his or her right to the assistance of an attorney. MCR 6.610(F)(2).
An understanding plea also requires that a defendant be advised of any mandatory minimum jail sentence that would be imposed for conviction of the charged offense as well as the maximum possible penalty for conviction. MCR 6.610(F)(3)(a). Where the trial court incorrectly advised the defendant that the maximum term of imprisonment for the offense “was 20 years when the correct maximum was 10 years,” the defendant was not entitled to withdraw his plea; “[b]ecause defendant was not told that he was facing a sentence less than what it actually was, he [could not] show that he was prejudiced” by the trial court’s error. People v Winters, 320 Mich App 506, 509-511 (2017) (interpreting the requirement in MCR 6.302(B)(2) to advise the defendant of the maximum possible penalty for conviction).
Before accepting a defendant’s guilty or no contest plea, the court must also advise the defendant of his or her right to trial and of the rights attendant to the right to trial. MCR 6.610(F)(3)(b).
MCR 6.302(B), a rule expressly applicable to matters of procedure involving offenses over which the circuit court has jurisdiction, contains a few details not found in MCR 6.610(F) that may be helpful in assuring that a defendant’s plea in district court is understanding and voluntary.90 MCR 6.302(B) specifically requires that the court speak directly to the defendant(s) and “determine that each defendant understands” the factors listed in MCR 6.302(B)—many, but not all, of which are found in MCR 6.610(F).
In determining a plea’s voluntariness, MCR 6.610(F)(6) requires the court to ask the defendant specific questions before accepting the defendant’s guilty or nolo contendere plea:
“The court must ask the defendant:
(a) (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;
(b) whether anyone has threatened the defendant; and
(c) whether it is the defendant’s own choice to plead guilty.”
“In assessing voluntariness, . . . a defendant entering a plea must be ‘fully aware of the direct consequences’ of the plea.” People v Cole, 491 Mich 325, 333 (2012), quoting Brady v United States, 397 US 742, 755 (1970).
In determining the accuracy of a guilty plea, “the court, by questioning the defendant, shall establish support for a finding that [the] defendant is guilty of the offense charged or the offense to which the defendant is pleading[.]” MCR 6.610(F)(1)(a) (emphasis added).
In determining the accuracy of a nolo contendere plea, “the court shall not question the defendant about the defendant’s participation in the crime, but shall make the determination on the basis of other available information.” MCR 6.610(F)(1)(b).
90. However, due process “might not be entirely satisfied by compliance with subrules (B) through (D).” People v Cole, 491 Mich 325, 330-332, 337-338 (2012) (holding that, “regardless of the explicit wording of” former MCR 6.302(B)-(D), which did not specifically require a trial court to inform a defendant about the possibility of lifetime electronic monitoring, “a court may be required by the Due Process Clause of the Fourteenth Amendment to inform a defendant that mandatory lifetime electronic monitoring is a consequence of his or her guilty or no-contest plea.” MCR 6.302(B)(2) was subsequently amended to require this advice by the court). “Because [the Sex Offenders Registration Act (SORA)] is a punitive collateral consequence for the conviction of certain crimes, a defendant must be informed of its imposition before entering a guilty plea” and “the registration requirement must be included in the judgment of sentence.” People v Nunez, 342 Mich App 322, 334 (2022) (noting that “MCR 6.427(9) provides that for any offense the court must include in the judgment of sentence ‘the conditions incident to the sentence’”). While MCR 6.429(A) permits “trial courts to sua sponte amend an invalid judgment of sentence . . . within six months of its entry, [t]he amendment in [Nunez] was attempted beyond the six-month limitations period.” Nunez, 342 Mich App at 329 n 5. The Nunez Court concluded that “[it was] too late for the judge to amend or correct the judgment of sentence to add a registration requirement, and the prosecution [was] not empowered to do so by letter.” Id. at 334. Accordingly, “the failure of the trial court to adhere to the statutory notice requirement and to include SORA registration in the judgment of sentence prevent[ed] any belated application of SORA to [the defendant]” under MCL 28.724(5). Nunez, 342 Mich App at 334.