Required Advice of Rights at Plea Proceedings

6.17Required Advice of Rights at Plea Proceedings

MCR 6.610(F)(1)-(9) governs plea proceedings when the charged offense is cognizable in district court. This section discusses in detail a district court’s obligations when a defendant pleads guilty or no contest to an offense over which the district court has jurisdiction.

See Section 6.7(D) for a detailed discussion of advice of trial rights, including “Jaworski rights,”¹ and the permissible grouping of these rights.

See the Michigan Judicial Institute’s Criminal Pretrial/Trial Quick Reference Materials web page for a checklist and flowchart for proceedings involving misdemeanor guilty and no contest pleas, and a flowchart for proceedings involving misdemeanor not guilty pleas.

A.Advice About the Right To Counsel ²

MCR 6.610(F)(2) provides:

“The court shall inform the defendant of the right to the assistance of an attorney. If the offense charged requires on conviction a minimum term in jail, the court shall inform the defendant that if the defendant is indigent the defendant has the right to an appointed attorney. The court shall also give such advice if it determines that it might sentence to a term of incarceration, even if suspended.”

B.Waiver of Constitutional Trial Rights

MCR 6.610(F)(3)(b) requires a court to advise a defendant of the trial rights that are waived by a guilty or no contest plea. MCR 6.610(F)(3)(b) provides that the court must advise the defendant

“that if the plea is accepted the defendant will not have a trial of any kind and that the defendant gives up the following rights that the defendant would have at trial:

(i) the right to have witnesses called for the defendant’s defense at trial,

(ii) the right to cross-examine all witnesses called against the defendant,

(iii) the right to testify or to remain silent without an inference being drawn from said silence,

(iv) the presumption of innocence and the requirement that the defendant’s guilt be proven beyond a reasonable doubt.”

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).³

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.⁴ 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). MCR 6.302(B) requires the court to advise the defendant of the following information not found in MCR 6.610(F):

“(4) if the plea is accepted, the defendant will be giving up any claim that the plea was the result of promises or threats that were not disclosed to the court at the plea proceeding, or that it was not the defendant’s own choice to enter the plea[, and]

(5) if the plea is accepted, the defendant may be giving up the right to appeal issues that would otherwise be appealable if she or he were convicted at trial. Further, any appeal from the conviction and sentence pursuant to the plea will be by application for leave to appeal and not by right[.]”⁵ MCR 6.302(B)(4)-(5).

MCR 6.610(F)(4) governs the method by which a district court may inform a defendant (or defendant) of the trial rights listed in MCR 6.610(F)(3)(b). The recital of rights may be made:

“(a) on the record,

(b) in a writing made part of the file, or

Except as otherwise provided in MCR 6.610(F)(7) (addressing written pleas), if the court uses a writing as permitted under MCR 6.610(F)(4)(b) or MCR 6.610(F)(4)(c), “the court shall address the defendant and obtain from the defendant orally on the record a statement that the rights were read and understood and a waiver of those rights.” MCR 6.610(F)(4). “The waiver may be obtained without repeating the individual rights.” Id.

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).

Right to a trial by jury. Const 1963, art 1, § 20, provides that “[i]n every criminal prosecution, the accused shall have the right to a speedy and public trial by an impartial jury[.]” (Emphasis added.) Accordingly, a defendant has a constitutional right to be tried by a jury in misdemeanor cases even when conviction would not result in imprisonment. People v Antkoviak, 242 Mich App 424, 463 (2000). In Antkoviak, 242 Mich App at 425-427, the defendant was charged with violating MCL 436.1703(1)(a) (minor in possession of alcohol) and was denied a jury trial by the district court on the ground that conviction would not result in incarceration. The Court of Appeals concluded that Const 1963, art 1, § 20, guarantees a trial by jury to any defendant accused of a criminal offense. The Court explained that although MCL 436.1703 proscribes conduct classified as a “petty offense,” the conduct prohibited is clearly classified by statute as a “crime” for which a defendant has the right to a trial by jury. Antkoviak, 242 Mich App at 471, 481, citing MCL 750.5.

Electing a bench trial. A defendant is entitled to a jury trial “when required by law.” MCR 6.610(D)(1)(c)(iii). However, a defendant may waive his or her right to a jury trial. MCL 763.3(1) provides, in relevant part:

“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.” (Emphasis added.)

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.⁶ 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).

See also MCR 6.401,⁷ providing that a defendant has the right to be tried by a jury but may waive the right to a jury and choose to be tried by the court. A defendant’s election to be tried by the bench requires the prosecutor’s consent and the court’s approval. Id.

C.Advice About Possible Sentence

Before a court may accept a defendant’s guilty or no contest plea, the court must inform the defendant of any mandatory minimum jail sentence for a conviction of the offense, as well as the maximum possible penalty permitted by statute. MCR 6.610(F)(3)(a).

The extent to which a trial court may involve itself in sentence negotiations is defined by the Michigan Supreme Court’s decisions in People v Killebrew, 416 Mich 189 (1982), effectively superseded in part by ADM File No. 2011-19,⁸ and People v Cobbs, 443 Mich 276 (1993). See Section 6.4 for discussion of sentence negotiations and plea bargains.

² See Section 6.7(A) for discussion of the right to counsel at plea proceedings. See also Chapter 4 for a thorough discussion of a criminal defendant’s right to counsel.

³ See Section 6.7 for a detailed discussion of the constitutional rights that are waived by a guilty plea, including “Jaworski rights,” and the permissible grouping of these rights.

⁴ 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.

⁶ See SCAO Form MC 260, Waiver of Trial by Jury and Election to be Tried Without Jury.

⁷ Although MCR 6.401 applies to criminal offenses over which the circuit court has jurisdiction and is not expressly applicable to offenses over which the district court has jurisdiction, the rule may be instructive.