People v. Carter

Decision Date23 July 1991
Docket NumberDocket No. 98575
Citation190 Mich.App. 459,476 N.W.2d 436
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Vernard CARTER, Defendant-Appellant. (On Rehearing)
CourtCourt of Appeal of Michigan — District of US

Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of the Crim. Div., Research, Training, and Appeals, and Jan J. Raven and John P. Puleo, Asst. Pros. Attys., for the People.

Neil H. Fink and Mark J. Kriger, Detroit, for defendant-appellant.



On August 17, 1986, a young woman was killed and another young woman was seriously injured in a shooting incident in Detroit. Two defendants, Damion Todd and Vernard Carter, were convicted of first-degree murder, M.C.L. Sec. 750.316; M.S.A. Sec. 28.548, assault with intent to murder, M.C.L. Sec. 750.83; M.S.A. Sec. 28.278, and possession of a firearm during the commission of a felony, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). A third defendant, Derrick McClure, was convicted of second-degree murder, M.C.L. Sec. 750.317; M.S.A. Sec. 28.549, assault with intent to commit great bodily harm, M.C.L. Sec. 750.84; M.S.A. Sec. 28.279, and felony-firearm, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). The three defendants' cases were consolidated for our review.

On December 17, 1990, this Court issued a published opinion in which we affirmed the convictions of defendants Todd and McClure, but reversed defendant Carter's convictions. People v. Todd, 186 Mich.App. 625, 465 N.W.2d 380 (1990). Regarding Carter, we found that he was denied the effective assistance of counsel because his defense counsel failed to convey to him an authorized plea offer. Id., pp. 633-637, 465 N.W.2d 380. We therefore reversed defendant's convictions and remanded for a new trial. Id., pp. 636-637, 465 N.W.2d 380. We have now granted rehearing on our own motion to decide whether our disposition of Carter's case was proper. On rehearing, we do not reverse defendant's convictions. Instead, we remand for an evidentiary hearing to determine whether defendant was prejudiced by his counsel's failures. We also adopt a different remedy to be afforded defendant should the trial court determine that he was prejudiced.

In our original opinion, we cited with approval a previous opinion of this Court, People v. Williams, 171 Mich.App. 234, 241-242, 429 N.W.2d 649 (1988), lv. den. 432 Mich. 913 (1989), cert. den. 493 U.S. 956, 110 S.Ct. 369, 107 L.Ed.2d 355 (1989), where it was decided that an attorney's failure to advise his client of a plea bargain offer may be ineffective assistance of counsel. Todd, supra, 186 Mich.App. p. 634, 465 N.W.2d 380. On the basis of testimony of defendant's trial counsel at the posttrial Ginther 1 hearing in this case, we held that defendant was denied the effective assistance of counsel. Todd, pp. 635-636, 465 N.W.2d 380. In addressing whether defendant was prejudiced, 2 we said, "Since defendant received a conviction and sentence that was substantially greater than the plea offer, he was prejudiced by the error." Todd, 186 Mich.App. p. 636, 465 N.W.2d 380.

After additional circumspection, we now believe that our focus on the prejudice issue was misplaced. That is, even though defendant received a sentence that was longer than the one in the plea offer, he could not have been prejudiced unless he would have accepted the plea offer had it been conveyed. Therefore, we now remand to the trial court for an evidentiary hearing where the court is to determine whether defendant would have accepted the plea offer. If the court determines that defendant would not have accepted the offer, then defendant was not prejudiced and he is not entitled to relief on his ineffective assistance claim. If, however, the court determines that defendant would have accepted the plea offer, then defendant was prejudiced, and he would be entitled to relief. 3

Regarding the form of relief to which defendant would be entitled, in our original opinion we simply reversed and remanded for a new trial. However, after reexamining our position on this point as well, we have determined that a simple reversal of defendant's convictions was not an appropriate remedy for the constitutional violation. See United States v. Morrison, 449 U.S. 361, 364, 101 S.Ct. 665, 667-68, 66 L.Ed.2d 564 (1981), where the Court said that the remedy for a deprivation of the Sixth Amendment right to counsel generally should be "tailored to the injury suffered from the constitutional violation...." Because defendant was denied the opportunity to plead to a lesser charge, the appropriate remedy would be to give him that opportunity. See Lyles v. State, 178 Ind.App. 398, 382 N.E.2d 991 (1978). Therefore, if the trial court determines that defendant was prejudiced, then his convictions are reversed and the trial court is directed to conduct a guilty plea hearing to permit him to...

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5 cases
  • McBroom v. Warren
    • United States
    • U.S. District Court — Eastern District of Michigan
    • 31 de março de 2008
    ...plea was to compel the State to reinstate the prior offer. Michigan law is consistent on that point. See People v. Carter, 190 Mich.App. 459, 463, 476 N.W.2d 436, 438-39 (1991), vacated on other grounds, 440 Mich. 870, 486 N.W.2d 740 (1992). The petitioner's second attorney should have been......
  • Young v. State
    • United States
    • Florida District Court of Appeals
    • 30 de outubro de 1992
    ...378, 482 N.E.2d 85 (1985); Young v. State, 470 N.E.2d 70 (Ind.1984); State v. Kraus, 397 N.W.2d 671 (Iowa 1986); People v. Carter, 190 Mich.App. 459, 476 N.W.2d 436 (1991), appeal denied, --- Mich. ----, 482 N.W.2d 712 (1992); People v. Alexander, 136 Misc.2d 573, 518 N.Y.S.2d 872 (1987); S......
  • Eustice v. State
    • United States
    • Wyoming Supreme Court
    • 5 de outubro de 2000
    ...proceed to trial rather than plead guilty." State v. Bristol, 159 Vt. 334, 618 A.2d 1290, 1292 (1992); see also People v. Carter, 190 Mich.App. 459, 476 N.W.2d 436, 438 (1991); Williams v. State, 326 Md. 367, 605 A.2d 103, 108 (1992); People v. Curry, 178 Ill.2d 509, 227 Ill.Dec. 395, 687 N......
  • People v. Whitfield
    • United States
    • Court of Appeal of Michigan — District of US
    • 21 de novembro de 1995
    ...remedy for deprivation of the Sixth Amendment right to counsel must be tailored to the injury suffered. People v. Carter (On Rehearing), 190 Mich.App. 459, 462-463, 476 N.W.2d 436 (1991). Here, defendant has lost his appeal as of right from the probate court's waiver decision in view of the......
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