People v. Al-Shara
People v. Al-Shara
Opinion of the Court
The prosecution appeals by leave granted a circuit court order vacating defendant’s nolo contendere plea. Because the district court failed to advise defendant of his Jaworski
As a result of an incident with his wife at a restaurant on May 27, 2013, defendant was charged with one count of domestic violence under MCL 750.81(2). The prosecution offered defendant a plea agreement, which he accepted. Under this agreement, defendant would plead no contest to one count of domestic violence in exchange for a sentence consisting of one year of probation with credit for two months of probation
I HEREBY ACCEPT THE ABOVE AGREEMENT AND WAIVE THE FOLLOWING RIGHTS:
1. THE RIGHT TO A JURY TRIAL OR TRIAL BY THE COURT.
2. THE RIGHT TO BE PRESUMED INNOCENT UNLESS PROVEN GUILTY BEYOND A REASONABLE DOUBT.
3. THE RIGHT TO CONFRONT AND QUESTION THE WITNESSES AGAINST ME.
4. THE RIGHT TO HAVE THE COURT COMPEL WITNESSES TO COME TO COURT AND TESTIFY FOR ME.
5. THE RIGHT TO TESTIFY AT MY TRIAL. THE RIGHT TO REMAIN SILENT AND NOT HAVE MY SILENCE USED AGAINST ME.
6. THE RIGHT TO BE REPRESENTED BY A LAWYER, AND THE RIGHT TO HAVE THE COURT APPOINT A LAWYER TO REPRESENT ME IF I AM INDIGENT AND MEET CERTAIN CONDITIONS.
On May 31, 2013, the district court held a hearing during which the parties indicated that they had come to a resolution in the case and that defendant wished to enter a no-contest plea. After recounting the terms of the agreement and confirming that defendant realized the plea would constitute a violation of a previous
[District Court]: Mr. Al-Shara are you giving up your Constitutional Rights to a trial by judge or jury in this case?
[Defendant]: Yes, Your Honor.
[District Court]: Is anybody forcing you into this in any way whatsoever, Mr. Al-Shara?
[Defendant]: No, Your Honor.
[District Court]: Very well. The Court will accept the plea of no contest on 13S01020[;] we will enter a finding of a probation violation on 12S0273.
Once the district court accepted defendant’s plea, it heard the victim’s impact statement, and it immediately proceeded to sentence defendant in accordance with the plea agreement reached by the parties.
On August 9, 2013, defendant filed a timely motion in the district court to withdraw his plea. In relevant part, defendant asserted that he should be permitted to withdraw his plea because the district court failed to advise defendant of his rights as required by MCR 6.610(E). According to defendant, this obvious error affected his substantial rights and merited setting aside his plea.
The district court disagreed and denied defendant’s motion. The district court reasoned that the proceedings as a whole did not so deviate from the court rule that defendant’s substantial rights were affected, and that to allow defendant’s plea to stand would not
After the district court denied defendant’s motion, defendant filed a claim of appeal in the Wayne Circuit Court, again asserting that his plea should be set aside because the district court failed to comply with MCR 6.610(E). The circuit court applied a substantial compliance standard to its review and concluded that the plea-taking process in this case was “clearly defective” because defendant had not been advised of his rights on the record, and because the district court had failed to refer to the form signed by defendant to confirm that defendant had read and understood the form’s content as required by MCR 6.610(E)(4). Because the rights omitted by the district court included the constitutional rights set forth in Boykin
On appeal, the prosecutor argues that the circuit court erred by vacating defendant’s plea because the district court substantially complied with MCR 6.610(E), and defendant has not shown that any deviation from the court rule affected his substantial rights. Instead, according to the prosecution, any errors committed by the district court were minor and the combination of written and oral waivers during the proceedings served to adequately advise defendant of his rights. Because there is no indication that defendant failed to actually understand his rights, the prosecutor maintains that defendant has not shown error affecting his substantial rights or a miscarriage of justice. Under these circumstances, the prosecutor asserts that the district court did not abuse its discretion by denying defendant’s motion to withdraw his plea.
A trial court’s ruling on a motion to withdraw a plea is reviewed for an abuse of discretion. People v Brown, 492 Mich 684, 688; 822 NW2d 208 (2012). An abuse of discretion occurs when the trial court’s decision falls outside the range of principled outcomes. People v Fonville, 291 Mich App 363, 376; 804 NW2d 878 (2011). A trial court also necessarily abuses its discretion when it makes an error of law. People v Swain, 288 Mich App 609, 628-629; 794 NW2d 92 (2010). To the
“There is no absolute right to withdraw a guilty plea once the trial court has accepted it.” People v Patmore, 264 Mich App 139, 149; 693 NW2d 385 (2004). Nonetheless, when there has been a defect in the plea-taking process, a defendant may seek to set aside his or her plea. See Brown, 492 Mich at 693; City of Livonia v Jasik, 393 Mich 439, 442-443; 224 NW2d 838 (1975). The withdrawal of a plea entered in district court is governed by MCR 6.610(E)(8), which states:
(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.
As this rule makes plain, a defendant may seek to withdraw his or her district court plea for noncompliance with the plea-taking requirements set forth in the
The process for accepting a plea in district court is set forth in MCR 6.610(E). Under this rule, before accepting a plea of guilty or nolo contendere, the district court has an obligation to determine that the plea is “understanding, voluntary, and accurate.” MCR 6.610(E)(1). See also Brown, 492 Mich at 688-689. For a plea to be voluntary and understanding, a defendant must be aware of the rights he or she waives by entering the plea as well as the direct consequences of the plea. See People v Cole, 491 Mich 325, 332-333; 817 NW2d 497 (2012). A defendant must be sufficiently aware of his or her trial rights and the direct consequences of his or her plea before a defendant can make “ ‘a voluntary and intelligent choice among the alternative courses of action open to the defendant.’ ” See id. at 333, quoting North Carolina v Alford, 400 US 25, 31; 91 S Ct 160; 27 L Ed 2d 162 (1970).
“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.”
In particular, among other rights and information, MCR 6.610(E)(3) specifically requires the district court to inform a defendant of the Jaworski rights he or she will waive by entering a plea. The rule states:
(3) The court shall advise the defendant of the following:
*570 (a) the mandatory minimum jail sentence, if any, and the maximum possible penalty for the offense,
(b) 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. [MCR 6.610(E)(3).]
Regarding the manner in which this information may be imparted, MCR 6.610(E)(4) directs that a defendant may be informed of these rights as follows:
(a) on the record,
(b) in a writing made part of the file, or
(c) in a writing referred to on the record.
If the court uses a writing pursuant to subrule (E)(4)(b) or (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. The waiver may be obtained without repeating the individual rights.
Given the plain language of MCR 6.610(E)(4), it is clear that a defendant may be advised of his or her rights either in writing or on the record. Either manner is sufficient. However, whatever manner is used, the rule makes plain that there must be some colloquy with a defendant on the record regarding his or her rights to ensure that the defendant has been advised of
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, we review under the doctrine of substantial compliance
*573 If a Jaworski right is omitted from the plea proceedings, then reversal is mandated. However, the omission iromthe plea proceedings of one or another of the rights attendant to a trial, other than a Jaworski right, or the imprecise recital of any such right, including a Jaworski right, does not necessarily require reversal. [Saffold, 465 Mich at 273-274.[7 ]
In this case, defendant’s Jaworski rights are clearly implicated. At the plea hearing, the district court appropriately referenced defendant’s right to a jury trial but wholly failed to inform defendant of his right to remain silent and his right to confront his accusers. See MCR 6.610(E)(3)(b). The district court also 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. See MCR 6.610(E)(4). Moreover, these rights were not mentioned on the record by anyone else within earshot of the district court judge and defendant. See Saffold, 465 Mich at 278-280; Guilty Plea Cases, 395 Mich at 114-115. Given
In contrast to this conclusion, the prosecutor maintains that defendant’s plea should not be automatically set aside because defendant’s uncontested signature on a written form advising him of these rights satisfies the substantial compliance standard with respect to MCR 6.610(E)(4). The obvious flaw with this substantial compliance argument is that it would, in effect, obviate the requirement that the court refer to defendant’s Jaworski rights on the record in some manner — either by enumerating those rights or by verifying that defendant had read and understood a written advice of those rights. In other words, under MCR 6.610(E)(4), if a written form is used to inform a defendant of his or her rights, two requirements are mandatory: (1) the writing must detail the rights in question, and (2) the court must conduct an oral colloquy with the defendant, on the record, regarding that writing. When a court completely abdicates its obligation to personally discuss the writing with a defendant on the record, and the rights contained in the writing are not otherwise imparted to a defendant on the record during the plea proceedings, we fail to see how the district court can be said to have substantially complied with MCR 6.610(E)(4).
In contrast to the prosecutor and the district court, we cannot characterize the district court’s failure as merely being an unimportant technical defect that does not entitle defendant to relief. The requirement that the court personally address defendant on the record regarding the waiver of trial rights is not a meaningless formality. Rather, the court’s obligation to assume the principal role of imparting the required information is a central component of the plea-taking process, and it serves a number of important purposes. See Guilty Plea Cases, 395 Mich at 114. First, it preserves the integrity of the process by which pleas are offered and creates a clear record for appellate review. Second, it provides the trial court with an opportunity to observe a defendant’s demeanor and response to the imparted information, thereby facilitating the trial court’s assessment of the defendant’s understanding of the information. Finally, it serves to impress upon a defendant the gravity and import of his or her plea at “the solemn moment of passage from
That a defendant may have been tried by a jury in another case or learned of his rights in an earlier plea-taking proceeding would no more negate his right to be informed of the right to and incidents of a trial at the time a plea of guilty is offered than would proof that he had seen Perry Mason on television or read Erie Stanley Gardner.
Many defendants have been made aware at one time or another of the right to and incidents of a trial and the consequences of a plea of guilty. Nevertheless, whatever the personal history of the accused and the quality of his representation, the appearance of justice and the integrity of the process by which pleas of guilty are offered and accepted require, in the solemn moment of passage from presumed innocence to conviction and potential imprisonment, that the judge apprise every defendant of the rights he is waiving and consequences of his plea and make the other determinations required by the rule.
In this solemn context, 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(E)(4) to ensure that the defendant’s plea is understandingly and voluntarily made with knowledge of his or her Jaworski rights. Thus, even 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.
Consequently, in this case, because the district court failed to substantially comply with MCR 6.610(E) and the deviation implicated defendant’s Jaworski rights, defendant was automatically entitled to set aside his plea. Therefore, the district court abused its discretion by denying defendant’s motion to set aside his plea. For this reason, we affirm the circuit court’s order reversing the district court and remanding for trial.
Affirmed.
People v Jaworski, 387 Mich 21; 194 NW2d 868 (1972).
Although we do not have the benefit of the district court file, this document appears as an exhibit to the prosecution’s application for leave to appeal in this Court. The parties do not contest that this document was signed by defendant.
Boykin v Alabama, 395 US 238, 243; 89 S Ct 1709; 23 L Ed 2d 274 (1969).
People v Al-Shara, unpublished order of the Court of Appeals, entered April 18, 2014 (Docket No. 320209).
These constitutional rights also exist in the context of misdemeanor offenses. See, e.g., Berkemer v McCarty, 468 US 420,433; 104 S Ct 3138; 82 L Ed 2d 317 (1984) (applying the constitutional prohibition against compelled self-incrimination, as safeguarded through the provision of Miranda warnings, to misdemeanors as well as felonies); District of Columbia v Clawans, 300 US 617, 630-631; 57 S Ct 660; 81 L Ed 843
When reviewing defendant’s motion to set aside his plea in this case, the district court mistakenly relied on Ward, 459 Mich at 613-614, in which the Court did not apply the doctrine of substantial compliance but instead emphasized that withdrawal of a guilty plea after conviction and sentencing is disfavored and subject to a showing of a miscarriage of justice. Like the circuit court, we conclude that the instant dispute is controlled not by Ward but by People v Saffold, 465 Mich 268; 631 NW2d 320 (2001). That is, Ward was decided before MCR 6.610, MCR 7.104, and MCR 7.105 were amended to include time constraints for challenging plea-based convictions entered in district court. See Ward, 459 Mich at 614-615. The foundation of Ward’s reasoning was that “long delayed direct appeals” were to be “deemed collateral.” Id. at 614 (appeal was brought more than 12 months after judgement). Collateral attacks on a plea-based conviction — of the type described in Ward — have long been disfavored because the procedural safeguards provided for in Boykin and Jaworski “must at some point be balanced with considerations of finality and administrative consequences in order to best achieve proceedings that are consistent with the rudimentary demands of fair procedure.” People v Ingram, 439 Mich 288, 298; 484 NW2d 241 (1992). Because the present case involves a timely motion to set aside a plea in accordance with the
Although Saffold and Guilty Plea Cases applied the doctrine of substantial compliance when analyzing the procedure for taking felony pleas in circuit courts, we think it appropriate to also apply this doctrine by analogy to the acceptance of misdemeanor pleas in district court under MCR 6.610. 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, we are persuaded that, 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. See, generally, Guilty Plea Cases, 395 Mich at 121; Plumaj, 284 Mich App at 649. Where a Jaworski right is not implicated, whether a deviation occurred is judged under the substantial compliance doctrine, and under MCR 6.610(E)(8), a defendant is only entitled to relief if the deviation affected his or her substantial rights.
Interestingly, this Court has historically rejected the contention that overt record references by the trial court to a written advice-of-rights form satisfy the requirement that a trial court personally address a defendant when apprising him or her of rights waived by entering a plea. See, e.g., People v Napier, 69 Mich App 46, 47-48; 244 NW2d 359 (1976), and cases cited therein. Such procedures are undoubtedly permissible under today’s court rules. See MCR 6.302(B)(5);
We do not hold that literal compliance with MCR 6.610(E)(4) is required. That is, we do not suggest that a talismanic wording is
Dissenting Opinion
(dissenting). I respectfully dissent.
Defendant argues, and the majority agrees, that he is entitled to withdraw his plea because the district court failed to fully and strictly comply with MCR 6.610(E). But reversal is mandated only if a Jaworski
In Saffold, the Michigan Supreme Court reiterated the principles established in Guilty Plea Cases,
To determine if there was substantial compliance with the court rule, the first question is whether the right omitted or misstated is a “Jaworski right.” In People v Jaworski, 387 Mich 21; 194 NW2d 868 (1972), this Court held that a plea of guilty must be set aside where the record of the plea proceedings shows that the defendant was not advised of all three constitutional rights involved in a waiver of a guilty plea: 1) the right to trial by jury, 2) the right to confront one’s accusers, and 3) the privilege against self-incrimination, relying on Boykin v Alabama, 395 US 238; 89 S Ct 1709; 23 L Ed 2d 274 (1969). If a Jaworski right is omitted from the plea proceedings, then*579 reversal is mandated. However, the omission from the plea proceedings of one or another of the rights attendant to a trial, other than a Jaworski right, or the imprecise recital of any such right, including a Jaworski right, does not necessarily require reversal. Guilty Plea Cases, [395 Mich] at 122.[6 ]
The majority’s conclusion that “the district court failed to substantially comply with MCR 6.610(E) and the deviation implicated defendant’s Jaworski rights” is unsupported by the court rule. Specifically, MCR 6.610(E)(7) provides for a process by which a district court plea may be entered in writing, without the defendant’s actual appearance in court. While this case did not involve the written plea procedure under the court rule, the fact that this rule exists belies the majority’s conclusion that there must be strict compliance with the colloquy requirements of MCR 6.610(E)(4). That is, MCR 6.610(E)(7) provides for a process by which a plea may taken without such a colloquy; therefore, it cannot be concluded that the failure to engage in such a colloquy requires that defendant be allowed to withdraw his plea. Rather, I would suggest that we must look to the question of substantial compliance and determine whether the district court’s decision to not allow defendant to withdraw his plea constituted “a clear abuse of discretion resulting in a miscarriage of justice.”
The district court explained its reasoning for denying defendant’s motion to withdraw his plea as follows:
The motion filed on behalf of Mr. Al-Shara, at the top of page two, suggest [sic] the reason for the motion is*580 “defendant would not have accepted the plea agreement had he been aware of the effect that it would have on his probation in the unrelated case,[”] that is, stated as the motivation and reason for the filing of the motion.
With regard to advice of his rights, the defense concedes that [sic] page one of their brief, that Mr. Al-Shara signed a waiver of rights. That concession is again contained at page five of the defense brief where it states in the first full paragraph, while Mr. Al-Shara concedes that he did sign an Advice of Rights sheet in connection with this case and then it goes on from there so again, he has acknowledged signing the Advice of Rights.
The file does contain a written waiver of rights so he would have had both the Advice of Rights at the Arraignment stage of the proceedings and again, a signed waiver of rights in connection with the plea proceeding itself. There is no indication in the body of the motion or by way of affidavit from Mr. Al-Shara that he actually failed to understand his rights. That allegation is conspicuously absent of [sic] the motion... . There is no suggestion anywhere in the motion that Mr. Al-Shara was either not advised of or did not understand his rights in full and the effect of waiving those rights by proceeding with a plea at the time, that is, just conspicuously absent from the motion.
“A trial court abuses its discretion when its decision falls outside the range of reasonable and principled outcomes, or makes an error of law.”
I would reverse the circuit court and reinstate defendant’s plea and sentence.
People v Jaworski, 387 Mich 21; 194 NW2d 868 (1972).
People v Saffold, 465 Mich 268, 273; 631 NW2d 320 (2001).
MCR 6.610(E)(4).
MCR 6.610(E)(8)(b).
Guilty Plea Cases, 395 Mich 96, 122; 235 NW2d 132 (1975).
Saffold, 465 Mich at 273-274 (emphasis added). See also People v Plumaj, 284 Mich App 645, 649; 773 NW2d 763 (2009).
People v Montrose (After Remand), 201 Mich App 378, 380; 506 NW2d 565 (1993).
People v Swain, 288 Mich App 609, 628-629; 794 NW2d 92 (2010) (citations omitted).
Reference
- Full Case Name
- People of Michigan v. Salah Al-Shara
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- Published