5.12Withdrawing or Challenging a Plea1
A.Timing of Motion to Withdraw Plea
A defendant may not challenge a plea on appeal unless the defendant first moves in the trial court to withdraw the plea for noncompliance with applicable court rules. MCR 6.610(F)(8)(a). A defendant may file a motion to withdraw his or her plea before or after sentencing. Id. If the motion to withdraw is made after the sentence has been imposed, it must be made within the time for filing a late application for leave to appeal under MCR 7.105(G)(2) (not more than six months after entry of the judgment). MCR 6.610(F)(8)(a); MCR 7.105(G)(2); see also People v Clement, 254 Mich App 387, 390, 393 (2002) (applying former MCR 7.103(B)(6)).
B.Standards for Withdrawal of Pleas
When a defendant moves to withdraw his or her plea, the trial court must determine whether a deviation from the court rules occurred during the plea process, and if so, whether the deviation affected the defendant’s substantial rights. MCR 6.610(F)(8)(b). If the court concludes that a deviation affecting the defendant’s substantial rights occurred, the court must correct the deviation and offer the defendant the option of withdrawing his or plea. Id. If the court concludes either that no deviation occurred or that any deviation that occurred did not affect the defendant’s substantial rights, a defendant may withdraw his or her plea “only if it does not cause substantial prejudice to the [prosecution] because of reliance on the plea.” Id.
C.Appeal2
“An appeal from a misdemeanor case is governed by subchapter 7.100.” MCR 6.625(A).
1.Preservation of Right to Appeal
Similar to provisions relative to felony pleas in MCR 6.310(C), MCR 6.610(F)(8) states:
“The following provisions apply where a defendant seeks to challenge the plea.
(a) A defendant may not challenge a plea on appeal unless the defendant moved in the trial court to withdraw the plea for noncompliance with these rules. Such a motion may be made either before or after sentence has been imposed. After imposition of sentence, the defendant may file a motion to withdraw the plea within the time for filing an application for leave to appeal under MCR 7.105(G)(2).
(b) If the trial court determines that a deviation affecting substantial rights occurred, it shall correct the deviation and give the defendant the option of permitting the plea to stand or of withdrawing the plea. If the trial court determines either a deviation did not occur, or that the deviation did not affect substantial rights, it may permit the defendant to withdraw the plea only if it does not cause substantial prejudice to the people because of reliance on the plea.
(c) If a deviation is corrected, any appeal will be on the whole record including the subsequent advice and inquiries.”
2.Advice of Right to Counsel
A district court is required to advise a defendant of his or her right to a court-appointed attorney if the court sentences the defendant to a term of incarceration and the defendant wishes to appeal the conviction.
MCR 6.610(G)(4) states:
“Immediately after imposing a sentence of incarceration, even if suspended, the court must advise the defendant, on the record or in writing, that:
(a) if the defendant wishes to file an appeal and is financially unable to retain a lawyer, the local indigent criminal defense system’s appointing authority will appoint a lawyer to represent the defendant on appeal, and
(b) the request for a lawyer must be made within 14 days after sentencing.”
Committee Tip:
It is a good idea to appoint counsel before sentencing if jail is likely.
MCR 6.625(B)-(D) governs the appointment of counsel when requested by an indigent defendant sentenced to a term of incarceration:
“(B) If the court imposed a sentence of incarceration, even if suspended, and the defendant is indigent, the local indigent criminal defense system’s appointing authority must appoint a lawyer if, within 14 days after sentencing, the defendant files a request for a lawyer or makes a request on the record. If the defendant makes a request on the record, the court shall inform the appointing authority of the request that same day. Unless there is a postjudgment motion pending, the appointing authority must act on a defendant’s request for a lawyer within 14 days after receiving it. If there is a postjudgment motion pending, the appointing authority must act on the request after the court’s disposition of the pending motion and within 14 days after that disposition. If a lawyer is appointed, the 21 days for taking an appeal pursuant to MCR 7.104(A)(3) and MCR 7.105(A)(3) shall commence on the day of the appointment.
(C) If indigency was not previously determined or there is a request for a redetermination of indigency, the court shall make an indigency determination unless the court’s local funding unit has designated this duty to its appointing authority in its compliance plan with the Michigan Indigent Defense Commission. The determination of indigency and, if indigency is found, the appointment of counsel must occur with 14 days of the request unless a postjudgment motion is pending. If there is a postjudgment motion pending, the appointing authority must act on the request after the court’s disposition of the pending motion and within 14 days after that disposition.
(D) If a lawyer is appointed, the 21 days for taking an appeal pursuant to MCR 7.104(A)(3) and MCR 7.105(A)(3) shall commence on the day the notice of appointment is filed with the court.”