People Of The State Of Mich. v. Fonville

• Decision Date: 25 January 2011
• Docket Number: No. 294554,Oakland Circuit Court LC No. 2006-208493-FC,294554
• Parties: PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v DEREK FONVILLE, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, vDEREK FONVILLE, Defendant-Appellant.

No. 294554

Oakland Circuit Court LC No. 2006-208493-FC

STATE OF MICHIGAN

COURT OF APPEALS

January 25, 2011

FOR PUBLICATION

Before: Fort Hood, P.J., and Jansen and Whitbeck, JJ.

Jansen, J. (concurring in part and dissenting in part).

I fully concur with the majority's determination that defendant's attorney rendered ineffective assistance of counsel by failing to inform defendant that his guilty plea would require him to register as a sex offender. The majority correctly concludes that, like the consequence of deportation at issue in Padilla v Kentucky, __ US__; 130 S Ct 1473; 176 L Ed 2d 284 (2010), the requirement to register as a sex offender is a serious consequence of which a defense attorney must inform a client who wishes to plead guilty to certain offenses.

I respectfully dissent, however, from the majority's determination that there was a sufficient factual basis to support defendant's guilty plea in this case. Defendant pleaded guilty to enticing a child in violation of MCL 750.350(1), which provides:

A person shall not maliciously, forcibly, or fraudulently lead, take, carry away, decoy, or entice away, any child under the age of 14 years, with the intent to detain or conceal the child from the child's parent or legal guardian, or from the person or persons who have adopted the child, or from any other person having the lawful charge of the child. A person who violates this section is guilty of a felony, punishable by imprisonment for life or any term of years.

As noted by the majority, defendant informed the circuit court during the plea hearing that he "pretty much endangered two young kids" by "doing drugs and driving around with [the children] in the car." Defendant admitted that he was supposed to return the children to their mother at 11:00 p.m., but that he "ended up because of getting crack and everything keeping the kids with [him], driving around from 11 p.m. at night through 2 p.m. in the afternoon the next day[.]" The circuit court determined that these statements provided a sufficient factual basis for defendant's guilty plea. I cannot agree.

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Before accepting a defendant's plea of guilty, the circuit court must establish a factual basis for the plea. MCR 6.302(D)(1); People v Carlisle, 387 Mich 269, 273; 195 NW2d 851 (1972). A factual basis exists for a defendant's guilty plea if "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; 548 NW2d 248 (1996), or if "an inculpatory inference can reasonably be drawn by a jury from the facts admitted by the defendant even if an exculpatory inference could also be drawn and defendant asserts the latter is the correct inference," Guilty Plea Cases, 395 Mich 96, 130; 235 NW2d 132 (1975).

I cannot conclude that the colloquy at the plea proceeding provided a sufficient factual basis for defendant's plea of guilty to the charge of child enticement. The offense of child enticement is a specific intent crime. MCL 750.350(1); People v Kuchar, 225 Mich App 74, 77; 569 NW2d 920 (1997). The intent to detain or conceal a child from his or her parent is an essential element of the offense. People v Rollins, 207 Mich App 465, 469; 525 NW2d 484 (1994). I perceive absolutely no evidence on the...