6.6General Accurate, Understanding, and Voluntary Plea Requirements

“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. “This requirement mandates not only that a defendant enter into a plea bargain of their own free will, but that their decision is a knowing, intelligent act done with sufficient awareness of the relevant circumstances and likely consequences.” People v Samuels, ___ Mich ___, ___ (2024) (cleaned up) (“A defendant’s plea is involuntary if, under the totality of the circumstances, their will was overborne such that the decision to plead was not the product of free will.”), rev’g in part People v Samuels, 339 Mich App 664 (2021). “This constitutional requirement has been integrated into the Michigan Court Rules under MCR 6.302.” Samuels, ___ Mich at ___; see also Cole, 491 Mich at 332 (stating that portions of MCR 6.302(A)¹ are “premised on the requirements of constitutional due process”). 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). See also People v Brinkey, 327 Mich App 94, 100 (2019) (“although strict compliance with MCR 6.302 is not essential, a defendant’s plea must always be understanding, knowing, voluntary, and accurate”). In other words, a defendant must be afforded due process. See Cole, 491 Mich at 332.

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. If the court doubts the veracity of a guilty or no contest plea, the judge is obligated to vacate the plea, direct entry of a not guilty plea, and order the case to trial. Id. Before accepting a guilty or nolo contendere plea in a felony case, the court must place the defendant under oath and personally carry out MCR 6.302(B)-(E). MCR 6.302(A).

“MCR 6.302(C) specifically addresses whether a plea is voluntary, and it requires a trial court to conduct certain inquiries before accepting the plea.” Samuels, ___ Mich at ___. MCR 6.302(C)(2) “requires a court, that states during a plea hearing that it will sentence the defendant to a specified term or within a specified range, to: (1) inform the defendant that the final sentencing guidelines range may differ from the original preliminary estimate, (2) advise the defendant regarding their right to withdraw the plea pursuant to MCR 6.310(B) if the final sentencing guidelines range as determined at sentencing is different, and (3) provide a numerically quantifiable sentence term or range when providing the preliminary estimate.” MCR 6.302, ___ Mich ___ (staff comment). “When a plea agreement exists, the trial court must ask the defendant whether anything has been promised to him beyond what is reflected in the plea agreement, ‘whether anyone has threatened the defendant,’ and ‘whether it is the defendant’s own choice to plead guilty.’” Id. at ___, quoting former MCR 6.302(C)(4). However, “while the specific requirements of MCR 6.302(C) are directed at ensuring the voluntariness of a defendant’s plea, these requirements alone might not form a sufficient inquiry into voluntariness.” Samuels, ___ Mich at ___ (noting that the Court had “previously rejected the notion that compliance with MCR 6.302(C) necessarily renders a plea voluntary”).

“[T]he court, by questioning the defendant, must establish support for a finding that the defendant is guilty of the offense charged or the offense to which the defendant is pleading.” MCR 6.302(D)(1); see also MCR 6.610(F)(1)(a). 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). “Courts in Michigan are required to evaluate a defendant’s actual guilt before accepting a plea, not just the mere expression of willingness by the prosecutor and defendant to strike a bargain.” People v White, 331 Mich App 144, 152 (2020) (quotation marks and citation omitted).

For an accurate nolo contendere plea, the court may not question the defendant about participation in the crime, but must state why a plea of nolo contendere is appropriate, and hold a hearing (unless there has already been one) that establishes support for finding that the defendant is guilty of the offense charged or the offense to which the defendant is pleading. MCR 6.302(D)(2); see also MCR 6.610(F)(1)(b). It is appropriate for a trial court to rely on a preliminary examination transcript to furnish the factual basis for a nolo contendere plea. People v Chilton, 394 Mich 34, 38-39 (1975).

“In assessing voluntariness, . . . a defendant entering a plea must be ‘fully aware of the direct consequences’ of the plea.” Cole, 491 Mich at 333, quoting Brady v United States, 397 US 742, 755 (1970). To ensure that a plea is voluntary, the court must determine whether the parties have made a plea agreement, “which may include an agreement to a sentence to a specific term or within a specific range[.]” MCR 6.302(C)(1). Any agreement “must be stated on the record or reduced to writing and signed by the parties,”² and “[t]he written agreement shall be made part of the case file.” Id. “A defendant’s ignorance of the collateral consequences of a guilty plea does not render the plea involuntary.” People v White, 337 Mich App 558, 574, 576 (2021) (determining “that the trial court was required to advise defendant of the mandatory consecutive sentencing at the plea hearing under MCR 6.302(A) and due-process principles, [but that did] not mean that defendant [was] automatically entitled to postappeal relief under MCR 6.500 et seq.”).

A trial court’s acceptance of a defendant’s guilty or no contest plea is implicit proof of the court’s determination that the plea was freely, understandingly, and voluntarily made. In re Guilty Plea Cases, 395 Mich 96, 126 (1975). However, due process “might not be entirely satisfied by compliance with subrules (B) through (D).” Cole, 491 Mich at 330-332, 337-338 (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.

“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 assistance during the plea bargaining process.” People v Horton, 500 Mich 1034 (2017), citing Hill v Lockhart, 474 US 52, 56-57 (1985), and overruling 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[.]”

“[W]here the record raises a question of fact about the voluntariness of . . . a plea [given as part of a package-deal plea offer], a trial court must hold an evidentiary hearing to consider the totality of the circumstances in determining whether a defendant’s plea was involuntary.” Samuels, ___ Mich at ___. In Samuels, the prosecutor offered defendant and his twin brother a package-deal plea offer that was contingent on both defendants accepting the plea offer. Id. at ___. Although defendant initially objected to the package-deal plea offer at the plea hearing, stating that it was “not right,” he apparently “changed his mind once his twin brother’s trial counsel indicated that his twin brother wished to plead guilty because defendant then indicated that he also wished to plead guilty.” Id. at ___. On appeal, the Samuels Court observed that “certain aspects of package-deal plea offers might pose a greater danger of inducing false pleas than individual plea offers because of the presence of extraneous factors.” Id. at ___. However, trial courts are not required to “police the voluntariness of plea offers at the plea colloquy[.]” Id. at ___ (stating that “package-deal plea offers are [not] so unique and so coercive that they must always be singled out for special inquiry before a plea can be taken”). Instead, “our traditional rules governing evidentiary hearings apply.” Id. at ___.

A trial court must hold an evidentiary hearing to determine a plea’s voluntariness “‘when the record contains some substantiated allegation that raises a question of fact as to the defendant’s claim that his or her guilty plea was involuntary because it was entered on the basis of a promise of leniency to a relative, and when the defendant’s testimony at the plea hearing does not directly contradict that allegation[.]’” Id. at ___, quoting and aff’g in part People v Samuels, 339 Mich App 664, 674 (2021). “This is not to say that a trial court need not consider the special nature of a package-deal plea offer at the plea colloquy.” Id. at ___. “Due-process concerns mandate that a trial court ensure that a plea is made voluntarily,” as does MCR 6.302(A). Samuels, ___ Mich at ___. “This may require a consideration of whether a package-deal plea offer is unduly coercive under the facts of a specific case [if] a defendant indicates that such a plea offer has a bearing on the defendant’s decision to plead guilty.” Id. at ___ (“declin[ing] to hold that, as a matter of law, a trial court must sua sponte engage in a special inquiry during the plea hearing whether the mere existence of a package-deal plea offer renders the plea involuntary”).

Courts must consider several non-exhaustive factors “in a totality-of-the-circumstances analysis when determining whether a package-deal plea offer has rendered a plea involuntary.” Id. at ___ (adopting the test set forth by the California Supreme Court in In re Ibarra, 34 Cal 3d 277 (1983)).

“First, the court must determine whether the inducement for the plea is proper. The court should be satisfied that the prosecution has not misrepresented facts to the defendant, and that the substance of the inducement is within the proper scope of the prosecutor’s business. The prosecutor must also have a reasonable and good faith case against the third parties to whom leniency is promised.

Second, the factual basis for the guilty plea must be considered. If the guilty plea is not supported by the evidence, it is less likely that the plea was the product of the accused’s free will. The same would be true if the bargained-for sentence were disproportionate to the accused’s culpability.

Third, the nature and degree of coerciveness should be carefully examined. Psychological pressures sufficient to indicate an involuntary plea might be present if the third party promised leniency is a close friend or family member whom the defendant feels compelled to help.

Fourth, a plea is not coerced if the promise of leniency to a third party was an insignificant consideration by a defendant in his choice to plead guilty. For example, if the motivating factor to plead guilty was the realization of the likelihood of conviction at trial, the defendant cannot be said to have been forced into pleading guilty, unless the coercive factors present had nevertheless remained a substantial factor in his decision.

[This] list is by no means exhaustive. Other factors which may be relevant can and should be taken into account at the inquiry. For example, the age of the defendant, whether defendant or the prosecutor had initiated the plea negotiations, and whether charges have already been pressed against a third party might be important considerations.” Id. at ___ (cleaned up).

The Samuels Court held that “the nature of the relationship between codefendants is also a relevant factor to be considered at the evidentiary hearing.” Id. at ___ (noting that application of the Ibarra factors is not limited to familial relationships). “It is of course relevant whether the prosecution has probable cause to prosecute the third parties in a package-deal plea offer[.]” Id. at ___. “Guided by the Ibarra factors, a court should consider the totality of the circumstances and determine whether a defendant’s plea was involuntary, i.e., whether the plea was the product of an essentially free and unconstrained choice by its maker, or whether the defendant’s will has been overborne and his capacity for self-determination critically impaired . . . .” Id. at ___ (quotation marks and citations omitted). “[W]here the record raises a question of fact about the voluntariness of . . . a plea [given as part of a package-deal plea offer], a trial court must hold an evidentiary hearing to consider the totality of the circumstances in determining whether a defendant’s plea was involuntary.” Id. at ___.

The Samuels Court determined that there was “a question of fact as to whether defendant voluntarily waived his due-process rights.” Id. at ___ (observing that “[t]he plea colloquy transcript reveals that defendant indicated a desire to go to trial that only changed after his twin brother stated that he wished to take the plea offer,” and “defendant sought to withdraw his plea before sentencing and agreed with the trial court that the package-deal plea offer was coercive”). “Further, defendant’s plea-hearing testimony [did] not directly contradict his claim that his plea was involuntarily made.” Id. at ___ (”Although the record suggests that the prosecution had probable cause to charge defendant’s twin brother, that does not end the inquiry under a totality-of-the-circumstances analysis.”). In sum, the Samuels Court held that “a defendant may be entitled to an evidentiary hearing on the question of voluntariness where the record raises a question of fact as to whether the defendant’s plea was induced by a promise of leniency to a third party.” Id. at ___. “At such an evidentiary hearing, the trial court must conduct a totality-of-the-circumstances inquiry, applying the non-exhaustive Ibarra factors where relevant.” Id. at ___ (“remand[ing] the case to the trial court to hold such an evidentiary hearing”).

“For a valid plea agreement, . . . there must be an actual agreement on the essential features of the plea.” Brinkey, 327 Mich App at 95. “When there are multiple proposed plea agreements and hearings . . . reference to a ‘prior plea’ will likely be ambiguous and require some clarification on the record[.]” Id. at 95 (the trial court abused its discretion in denying defendant’s motion to withdraw his plea where the record showed “a lack of clarity with respect to essential features of the plea agreement, specifically the sentencing parameters”). Although strict compliance with MCR 6.302 is not essential, “the trial court’s noncompliance [was] serious in nature” because “the trial court made no [apparent] effort to ensure that defendant actually knew and understood” the conditions he was pleading guilty under. Brinkey, 327 Mich App at 103.

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).

When a plea is taken and all of the required elements are not satisfied, the case should be remanded to allow the prosecution to establish the missing elements. People v Mitchell, 431 Mich 744, 749-750 (1988). If the prosecution is able to do so and there is no contrary evidence, the defendant’s conviction should stand. Id. at 750. However, if the prosecution is unable to establish that the defendant committed the offense, the trial court must set aside the defendant’s conviction. Id. If contrary evidence is produced, the matter should be treated as a motion to withdraw the guilty plea, and the trial court must exercise its discretion to decide the matter. Id. If the motion is granted, the trial court must set aside the conviction. Id.