6.7Specific Required Advice of Rights at Plea Proceedings

A.Advice About the Right To Counsel¹

The right to counsel attaches at all critical stages of the proceedings, and “[t]he entry of a plea is a critical stage of the proceedings because it results in the defendant’s conviction.” People v Pubrat, 451 Mich 589, 593-594 (1996), citing Gideon v Wainwright, 372 US 335 (1963). When an indigent defendant may be sentenced to jail pursuant to a plea obtained in the absence of counsel, the record must show that the defendant was offered counsel and made an intelligent and understanding waiver of counsel. See People v Bailey, 7 Mich App 157, 159-160 (1967); MCR 6.610(F)(2).

A defendant’s Sixth Amendment right to counsel attaches at the defendant’s initial proceeding, regardless of the prosecution’s involvement in, or awareness of, the proceeding. Rothgery v Gillespie Co, 554 US 191 (2008). “[T]he negotiation of a plea bargain . . . is almost always the critical point for a defendant,” and thus “criminal defendants require effective counsel during plea negotiations” even though they occur out of court and the prosecutor may have little or no notice of a deficiency in defense counsel’s conduct. Missouri v Frye, 566 US 134, 144 (2012).² “The prosecution and the trial courts may adopt some measures to help ensure against late, frivolous, or fabricated claims after a later, less advantageous plea offer has been accepted or after a trial leading to conviction with resulting harsh consequences.” Id. at 146. For example, a party may make any formal offers part of the record at any plea proceeding or before a trial on the merits. Id.

If the defendant previously waived the assistance of counsel, MCR 6.005(E) (applicable to matters of procedure involving felony offenses but not expressly applicable to procedural matters involving offenses cognizable in district court) mandates that the court advise the defendant of his or her continuing right to an attorney’s assistance and obtain the defendant’s continued waiver of that right before beginning any court proceeding following the defendant’s initial waiver. Substantial compliance with the mandates contained in MCR 6.005(E)(1)-(3) is required. People v Russell, 471 Mich 182, 191-192 (2004).

See Chapter 4 for additional discussion of the right to counsel during criminal proceedings.

B.Advice About Mandatory Minimum Jail Sentence, Maximum Jail Sentence, and Maximum Possible Penalty

Before accepting a plea of guilty or nolo contendere, the court must advise the defendant of the mandatory minimum and maximum jail sentence, if any, and the maximum possible penalty for the offense. MCR 6.302(B)(2); MCR 6.601(F)(3)(a). “[M]andatory consecutive sentencing relat[ing] to a past offense for which defendant was on parole and resurrection of the original sentence for that offense, which must be completed before defendant starts serving the sentences on crimes to which he pleaded guilty . . . do not fall squarely within the particular parameters of MCR 6.302(B)(2),” which “focuses on the minimum and maximum sentences with respect to the offense or offenses to which a defendant pleads guilty.” People v White, 337 Mich App 558, 572 (2021). Notwithstanding, the White Court determined 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[.]” White, 337 Mich App at 576. The trial court in White “did not advise defendant of the mandatory consecutive sentencing relative to [a] parole violation and completion of [a prior] murder sentence” at the plea hearing; “the mandatory consecutive sentencing that resulted was a direct consequence of defendant’s pleading guilty” and “[t]he result constituted a definite, immediate, and automatic effect on the range of defendant’s punishment.” Id. at 563, 575.

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, ___ Mich ___, ___ (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”).

C.Advice About the Right to Trial

Before the court accepts a defendant’s guilty or nolo contendere plea, the court must advise the defendant of the rights the defendant will waive as a result of pleading guilty, including the right to trial. MCR 6.302(B)(3)(a); MCR 6.610(F)(3)(b).

“Under both the United States and Michigan Constitutions, a criminal defendant has a constitutionally guaranteed right to a jury determination that he is guilty beyond a reasonable doubt.” People v Lafey, ___ Mich App ___, ___ (2024) (cleaned up). “However, with the consent of the prosecutor and the approval of the trial court, a defendant may waive his right to a jury trial.” Id. at ___ (quotation marks and citation omitted). “To validly waive the right to a jury trial, that waiver must be both knowingly and voluntarily made.” Id. at ___ (quotation marks and citation omitted).

 MCL 763.3(1) provides, in part:

“(1) In all criminal cases arising in the courts of this state the defendant may, with the consent of the prosecutor and approval by the court, waive a determination of the facts by a jury and elect to be tried before the court without a jury.”

See also MCR 6.401.³ A defendant’s election to be tried by the bench requires the prosecutor’s consent and the court’s approval. Id.

MCL 763.3(1) requires, except in cases of minor offenses, that a defendant wishing to waive the right to a jury trial make and sign a written statement of waiver similar in substance to the example contained in the statute.⁴ In addition to the written waiver, in cases involving crimes other than minor offenses, “the waiver of trial by jury shall be made in open court after the defendant has been arraigned and has had opportunity to consult with legal counsel.” MCL 763.3(2).

“Before the adoption of MCR 6.402, a waiver of the right to a jury trial was required to be in writing pursuant to MCL 763.3(1).” Lafey, ___ Mich App at ___. “However, the adoption of MCR 6.402 superseded the statute’s writing requirement.” Id. at ___. With the exception of requiring the written waiver, MCR 6.402 (a rule not specifically made applicable to criminal procedure involving offenses cognizable in district court, but which may be instructive where no other rule applies) mirrors the other legislative requirements of a defendant’s waiver of the right to be tried by a jury. MCR 6.402 states:

“(A) Time of Waiver. The court may not accept a waiver of trial by jury until after the defendant has been arraigned or has waived an arraignment on the information, or, in a court where arraignment on the information has been eliminated under MCR 6.113(E), after the defendant has otherwise been provided with a copy of the information, and has been offered an opportunity to consult with a lawyer.

(B) Waiver and Record Requirements. Before accepting a waiver, the court must advise the defendant in open court of the constitutional right to trial by jury. The court must also ascertain, by addressing the defendant personally, that the defendant understands the right and that the defendant voluntarily chooses to give up that right and to be tried by the court. A verbatim record must be made of the waiver proceeding.”

However, “a trial court’s failure to follow procedural rules for securing a waiver of the right to a jury trial does not violate the federal constitution nor does it require automatic reversal.” Lafey, ___ Mich App at ___. “If a defendant’s waiver was otherwise knowingly, voluntarily, and intelligently made, reversal will not be predicated on a waiver that is invalid under the court rules because courts will disregard errors that do not affect the substantial rights of a defendant.” Id. at ___ (cleaned up). “Whether or not there is an intelligent, competent, self-protecting waiver of jury trial by an accused must depend upon the unique circumstances of each case.” Id. at ___ (cleaned up). “The dispositive inquiry is whether the defendant understood that the choice confronting him was, on the one hand, to be judged by a group of people from the community, and on the other hand, to have his guilt or innocence determined by a judge.” Id. at ___ (cleaned up). “When these requirements are not met, constitutionally invalid jury waiver is a structural error that requires reversal.” Id. at ___ (quotation marks and citation omitted). “Arguably, the failure to specify that the right to a jury trial is constitutional in nature resulted in a failure to strictly comply with the requirements of MCR 6.402(B), as the court rule provides that ‘the court must advise the defendant in open court of the constitutional right to trial by jury.’” Lafey, ___ Mich App at ___. “However, this does not amount to plain error nor a structural error warranting a reversal.” Id. at ___ (“If defendant waived his right to a jury trial knowingly, voluntarily, and intelligently, the allegedly inadequate colloquy under the court rule did not affect his waiver.”). In Lafey, “the fundamental question [was] whether defendant was aware of how jury and bench trials operate, not whether defendant was aware of the underlying sources of authority for those trials.” Id. at ___ n 5 (noting that “the record show[ed] that defendant was made aware of how jury and bench trials operate, as the trial court explained that the ultimate finder of fact in a jury trial is the jury, whereas the ultimate finder of fact in a bench trial is the judge”).

D.Jaworski Rights

A guilty plea cannot be “understandingly” made unless the defendant has knowledge of the consequences of his or plea. Automatic reversal is mandated where the record does not affirmatively show that before pleading guilty, a defendant was advised that his or her guilty plea waived a trio of constitutional trial rights known as “Jaworski rights.” See People v Jaworski, 387 Mich 21, 27, 30 (1972) (citations omitted); see also Boykin v Alabama, 395 US 238, 242-244 (1969). The three constitutional rights waived by a defendant’s guilty plea are:

•the privilege against self-incrimination,

•the right to a trial by jury, and

•the right to confront one’s accusers. Boykin, 395 US at 243 (citations omitted); Jaworski, 387 Mich at 30 (citation omitted).

MCR 6.302(B)(3) (governing felony pleas) and MCR 6.610(F)(3)(b) (governing pleas to offenses cognizable in district court) require the court to advise the defendant of these and other trial rights that the defendant waives by entering a plea of guilty or nolo contendere.The Michigan Supreme Court has specifically approved of a trial court’s “grouping” of a defendant’s rights in the court’s recital of rights to a defendant. In re Guilty Plea Cases, 395 Mich 96, 114-115 (1975). Provided that the record at a plea proceeding reflects that none of the three Jaworski rights was omitted, reversal is not necessarily required where each right is not explained separately or is imprecisely recited. In re Guilty Plea Cases, 395 Mich at 122. In other words, “explicit questioning on each Jaworski right is not always necessary.” People v Spears (On Remand), 346 Mich App 494, 509 (2023) (holding the trial court substantially complied with MCR 6.302(B) when it “only explicitly questioned defendant on the record regarding one Jaworski right in confirming that defendant understood that he would forgo his right to a jury trial by pleading guilty”).

However, a defendant “is automatically entitled to set aside his or her plea when reference to those rights, either by their express enumeration or by reference to [a] written document, is omitted from the in-court plea proceedings.” People v Al-Shara, 311 Mich App 560, 577 (2015), citing People v Saffold, 465 Mich 268, 273, 281 (2001); Jaworski, 387 Mich at 31. In Al-Shara, the Court of Appeals “set aside the defendant’s no-contest plea because the trial court failed to mention two of the three Jaworski rights on the record and because there was no mention in the record of the signed form purportedly confirming the defendant’s understanding waiver of these rights.” Spears, 346 Mich App at 510.

E.Method of Recital

The advice of trial rights may be made orally on the record or in a writing. See MCR 6.302(B)⁵; MCR 6.610(F)(4).⁶ If a writing is used (other than in cases where a plea is made in writing without the personal appearance of defendant pursuant to MCR 6.610(F)(7)⁷), the court must address the defendant and obtain from the defendant, orally and on the record, a statement that the defendant has read and understands the rights, and that he or she is waiving those rights; however, “[t]he waiver may be obtained without repeating the individual rights.” MCR 6.302(B); MCR 6.610(F)(4).

The trial court must assume the principal burden of advising the defendant of the required information before accepting a plea. The purpose of requiring the trial court to personally address the defendant is to enable the court to “observe [the defendant’s] demeanor and responses” to the information as he or she receives it, but the information conveyed to the defendant may come from sources other than the court. In re Guilty Plea Cases, 395 Mich at 114. According to the Michigan Supreme Court:

“A guilty plea conviction will not be reversed if the judge engages in the required colloquy but fails to mention an item which the record shows was established through, for example, an opening statement of or interjection by the prosecutor or defense counsel in the hearing of the judge and [the] defendant.” Id. at 114-115.

In People v Harris, 191 Mich App 422, 423-425 (1991), the Court of Appeals affirmed a defendant’s conviction of operating under the influence of intoxicating liquor, third offense (OUIL-3rd), concluding that the defendant had failed to establish that his earlier plea-based conviction (his second OUIL conviction, which served as the basis for his OUIL-3rd) was invalid because the trial court had not informed the defendant of his right to a trial by jury. The Court noted that the defendant had been provided with written information about the rights to which he was entitled, and that MCR 6.610(F)(4)(b)⁸ allows a defendant to be informed of his or her trial rights in writing. Harris, 191 Mich App at 425.

However, “a written advice of rights alone—signed by a defendant off the record and outside of the court’s presence, and unreferenced by the court or anyone else during the plea hearing—cannot satisfy, substantially or otherwise, a trial court’s obligation under [MCR 6.610(F)(4)⁹] to ensure that the defendant’s plea is understandingly and voluntarily made with knowledge of his or her Jaworski rights.” People v Al-Shara, 311 Mich App 560, 576 (2015). In Al-Shara, 311 Mich App at 563, the defendant “signed a written ‘Pre-Trial Conference Summary’ form detailing the terms of [his nolo contendere] plea agreement” and waiving his trial rights, including his Jaworski rights. However, “[a]t the plea hearing, the district court . . . referenced [only the] defendant’s right to a jury trial [and] wholly failed to inform [him] of his right to remain silent and his right to confront his accusers” as required under MCR 6.610(F)(3)(b)¹⁰; additionally, the district court “failed to make any reference to defendant’s execution of a written advice-of-rights form or to verify that [he] actually read and understood the rights communicated on the form he signed[ as required under MCR 6.610(F)(4)¹¹].” Al-Shara, 311 Mich App at 573. The Court of Appeals affirmed the circuit court’s order vacating the defendant’s plea and remanding for a trial, rejecting the prosecutor’s contention that the defendant’s signature on the written waiver form constituted “substantial compliance” with MCR 6.610(F)(4)¹²:

“[E]ven when a written advice-of-rights form has been signed by a defendant, there cannot be a total omission of any reference during the in-court proceedings to either the enumerated rights in question or to the form itself signed by defendant off the record[, and] . . . when the rights implicated by the plea-taking procedure include a defendant’s Jaworski rights, the defendant is automatically entitled to set aside his or her plea when reference to those rights, either by their express enumeration or by reference to a written document, is omitted from the in-court plea proceedings.” Al-Shara, 311 Mich App at 576-577 (emphasis added; citations omitted).

In contrast to Al-Shara, the trial court in Spears “did discuss defendant’s written acknowledgment of rights on the record when confirming not only that defendant had signed the plea-acceptance form that referred to all of the rights allegedly omitted by the trial court, but also that defendant discussed its contents with his attorney[.]” People v Spears (On Remand), 346 Mich App 494, 511 (2023) (noting that “this colloquy is a proper method for accepting defendant’s guilty plea in substantial compliance with MCR 6.302 and Jaworski”).

Committee Tip:

The Editorial Advisory Committee emphasizes the importance of obtaining an oral statement and waiver from a defendant who was advised of his or her trial rights in writing. Because some defendants are functionally illiterate, it is imperative that the court determine that a defendant has indeed read and understood rights provided to him or her in writing. In addition to the English language, SCAO Form DC 213, Advice of Rights and Plea Information, and SCAO Form CC 291, Advice of Rights (Circuit Court Plea), are available in Spanish, Arabic, Chinese, Hmong, Korean, and Russian versions.

 

F.Substantial Compliance with Rule Requirements

“When considering whether a trial court complied with the court rules governing plea proceedings and whether any deviation entitles a defendant to reversal of his or her plea, [the appellate court] review[s] under the doctrine of substantial compliance whether the trial court observed the court rules detailing the plea-taking procedure.” People v Al-Shara, 311 Mich App 560, 571-572 (2015), citing People v Saffold, 465 Mich 268, 273 (2001). “Under [the substantial compliance] doctrine, literal or ‘talismanic’ compliance with the court rules is not required.” Al-Shara, 311 Mich App at 572, citing Saffold, 465 Mich at 280; In re Guilty Plea Cases, 395 Mich at 124.¹³

In Saffold, 465 Mich at 273-276, 281, the Michigan Supreme Court concluded that automatic reversal is not required when a trial court fails to advise a defendant of a trial right other than one of the three Jaworski rights. At the defendant’s plea proceeding, the trial court did not advise him that by tendering a guilty plea, he waived the presumption of innocence; however, earlier on the same day, the defendant was present when the judge instructed the jury (which had convened before the defendant entered his plea) that the defendant was innocent until proven guilty beyond a reasonable doubt. Saffold, 465 Mich at 270, 279. The Saffold Court concluded that although the trial court had not strictly complied with the requirements of MCR 6.302(B)(3),¹⁴ there existed substantial compliance with the rule sufficient to have alerted the defendant to the fact that a guilty plea waived the defendant’s right to trial and the attendant constitutional rights. Saffold, 465 Mich at 271, 280. “Under the court rule, a failure to state one of the rights at the plea hearing does not require vacating the conviction where[] . . . the [trial] court has directly addressed the defendant regarding the enumerated rights generally and the defendant has otherwise been informed adequately of the omitted right.” Id.

However, “it remains the rule in Michigan that failure to advise a defendant of his or her Jaworski rights during plea proceedings mandates automatic reversal and the setting aside of the defendant’s plea.” Al-Shara, 311 Mich App at 572 (citing Saffold, 465 Mich at 273, and holding that the defendant was automatically entitled to set aside his plea where there was a “total omission of two of the three Jaworski rights from the record of defendant’s plea proceedings” and where the district court “failed to make any reference to defendant’s execution of a written advice-of-rights form or to verify that defendant actually read and understood the rights communicated on the form he signed”) (additional citations omitted).

“A guilty plea conviction will not be reversed if the judge engages in the required colloquy but fails to mention an item which the record shows was established through, for example, an opening statement of or interjection by the prosecutor or defense counsel in the hearing of the judge and defendant.” People v Spears (On Remand), 346 Mich App 494, 512 (2023) (cleaned up). In Spears, the Court of Appeals concluded that “while the trial court itself did not advise defendant of the names of the offenses to which he was pleading guilty, the prosecution noted [multiple times] at the plea hearing that defendant would be pleading guilty to a reduced count one of second degree murder and count three weapons felony firearm. Id. at ___ (citing MCR 6.302(B)(1) (cleaned up). Further, the Spears Court concluded that the prosecution’s statements on the record sufficiently satisfied MCR 6.302(B)(2) when it “noted at the plea hearing that ‘if the defendant were found guilty of second degree murder, this Court could still impose a maximum sentence of life in prison at the time of sentencing even if he were found guilty of second degree murder’” and “the consecutive, mandatory two years’ imprisonment for felony-firearm.” Spears, ___ Mich App at ___. Finally, the Court concluded that “the often-recited fourth element of second-degree murder, ‘without justification or excuse,’ actually is part of the ‘cluster of ideas’ of second-degree murder” and “is not an element of second-degree murder,” therefore, “the trial court was not required to establish a factual basis in that regard under MCR 6.302(D)(1).” Spears, ___ Mich App at ___.

However, where the defendant “signed an advice of rights form[] . . . recit[ing] the rights contained in MCR 6.302(B)(3) verbatim,” and where he “affirmed that these rights were read to him, that he understood them, and that he understood he was relinquishing these rights by pleading guilty,” the trial court properly complied with MCR 6.302(B), even if the defendant could not personally read the form due to his limited literacy; “MCR 6.302(B) does not specify a reader—only that the rights on the form were read and understood.” People v Winters, 320 Mich App 506, 512 (2017).

In Al-Shara, 311 Mich App at 573 n 7 (citations omitted), the Court of Appeals specifically addressed the application of the “substantial compliance” doctrine to pleas taken in district court:

“While MCR 6.610 is not identical to its circuit court counterpart, MCR 6.302, the two rules nonetheless share many common features and the same overarching aim to inform a defendant of the rights waived by entering a plea, as well as the consequences of a plea. Hence, . . . like a circuit court under MCR 6.302, a district court need not conduct the colloquy described in MCR 6.610 verbatim, but it must substantially comply with the rule. And as in the circuit court, whether reversal is required will depend on the nature of the noncompliance, bearing in mind that omission of a Jaworski right requires automatic reversal because such a defect is intrinsically harmful and cannot be corrected on remand. Where a Jaworski right is not implicated, whether a deviation occurred is judged under the substantial compliance doctrine, and under [MCR 6.610(F)(8)¹⁵], a defendant is only entitled to relief if the deviation affected his or her substantial rights.”

“Because trial rights and sentencing consequences are distinct,” the substantial compliance doctrine does not apply to violations of MCR 6.302(B)(2) (applicable to offenses cognizable in circuit court, requiring a trial court to advise defendant of mandatory minimum sentence and maximum possible prison sentence).¹⁶ People v Brown, 492 Mich 684, 698 (2012). However, 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 [the] defendant was not told that he was facing a shorter sentence than he actually was, he [could not] show that he was prejudiced” by the trial court’s error. Winters, 320 Mich App at 509-511 (interpreting the requirement in MCR 6.302(B)(2) to advise the defendant of the maximum possible penalty for conviction).

On the other hand, the defendant was “entitled to withdraw his plea in its entirety” where the prosecutor, when informing the trial court of the plea agreement and reciting the maximum sentences for the eight offenses to which the defendant pleaded guilty, failed to state the maximum possible sentence for the offense of felon in possession of a firearm; “[g]iven the requirements of MCR 6.302, . . . defendant’s guilty plea was not understandingly entered,” and the prosecutor’s “omission rendered [the] plea proceeding defective.” People v Pointer-Bey, 321 Mich App 609, 616, 617 (2017).

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.