People v. Fonville.

• Citation: 804 N.W.2d 878,291 Mich.App. 363
• Decision Date: 25 January 2011
• Docket Number: Docket No. 294554.
• Parties: PEOPLEv.FONVILLE.
• Court: Court of Appeal of Michigan — District of US

291 Mich.App. 363
804 N.W.2d 878

PEOPLE
v.
FONVILLE.

Docket No. 294554.

Court of Appeals of Michigan.

Submitted Oct. 6, 2010, at Detroit.Decided Jan. 25, 2011, at 9:00 a.m.

[804 N.W.2d 881]

Bill Schuette, Attorney General, B. Eric Restuccia, Solicitor General, Jessica R. Cooper, Prosecuting Attorney, John S. Pallas, Chief, Appellate Division, and Janice A. Kabodian, Assistant Prosecuting Attorney, for the people.Terence R. Flanagan, Cedar, for defendant.Before: FORT HOOD, P.J., and JANSEN and WHITBECK, JJ.WHITBECK, J.

[291 Mich.App. 367] Defendant, Derek Fonville, appeals by leave granted the trial court's order denying his motion for relief from judgment. Fonville pleaded guilty to a count of child enticement ¹ as part of a plea bargain. We reverse and remand the matter to the trial court.

I. BASIC FACTS

The circumstances from which this action arises involve the two children of Fonville's girlfriend: JR 1 (aged 10) and JR 2 (aged 8). On the evening of April 19, 2006, the children's mother voluntarily placed them in Fonville's care while she was at work. However, Fonville failed to return the children at the agreed-upon time; instead, he kept them through the night and well into the next day. The police recovered the children during the afternoon of April 20, 2006. The children were tired, [291 Mich.App. 368] but unharmed. The prosecution accused Fonville of detaining the children in his vehicle while he and a friend were driving around under the influence of alcohol and drugs.

The prosecution originally charged Fonville with two counts of child enticement and two counts of kidnapping.² Following the preliminary examination, the district court bound Fonville over on the original counts, holding as follows:

While it was clear that [Fonville] did have consent to have the children when he first took them on April 19th, his job at that point in time, for lack of a better word, was to keep an eye on the kids

[804 N.W.2d 882]

while [their mother] went to work and that he would pick her up later. And the understanding was that the kids would be returned to her at that point in time. While he had consent the fact of the matter is he did not have consent to keep the kids overnight. He even admitted the same to Detective [Lawrence] Fetherolf that he did keep the kids overnight; took them on a number of different journeys out to Pontiac it sounds like. And did not return the children home at any point during the night of the 19th or the morning of the 20th even when [JR 1] ... requested that he be allowed to go home. He was told “no” at that point in time. The testimony of Detective Fetherolf was that [Fonville] felt it more important to take care of [his friend] ... than to return the children to their mother at that point in time. So, I think the best you've got is a question of fact. The matter will be bound over to circuit court on all charges and bond will be continued.

In an amended information, the prosecution dropped the two kidnapping charges and kept only the two counts of child enticement. Pursuant to an agreement with the prosecution, Fonville agreed to enter a guilty plea to one count of child enticement in exchange for the prosecution's dropping the other count of child [291 Mich.App. 369] enticement. Fonville's plea bargain included a Cobbs³ agreement, which was that the trial court would sentence him at the low end of the sentencing guidelines recommended minimum sentence range.

At a September 2006 plea proceeding, defense counsel stated that he had explained the plea bargain to Fonville and Fonville's mother. Fonville agreed on the record that it was his understanding that he would enter the Cobbs plea with a minimum-sentence cap of 51 months and that he would be able to withdraw his plea if the minimum sentence went beyond that. The trial court then went on to accept Fonville's guilty plea. During the trial court's questioning, Fonville stated that, on April 20, 2006, he “pretty much endangered two young kids” by “doing drugs and driving around with them in the car.” Fonville acknowledged that the children were less than 14 years old. He admitted that he and a friend were using cocaine at the time the children were with him. Fonville also agreed with the prosecution that he and his friend repeatedly drove to Pontiac to get crack cocaine and that the children were with them. He agreed that his addiction to crack cocaine was “feeding” his mind. Fonville acknowledged that he knew that he was supposed to return the children to their home at 11:00 p.m. on April 19. He agreed that “because of getting crack and everything,” he “ended up ... keeping the kids with [him], driving around from 11 p.m. at night through 2 p.m. in the afternoon the next day[.]” The prosecution asked him, “So you fraudulently detained these kids, correct?”; [291 Mich.App. 370] Fonville answered, “Yes.” The prosecution and the defense indicated their satisfaction with the factual basis for Fonville's plea to the charge of child enticement. And the trial court stated that it was satisfied that Fonville's plea was knowingly, voluntarily, and accurately made.

However, at the September 2006 sentencing hearing, defense counsel informed the trial court that Fonville wished to withdraw his plea. Defense counsel explained

[804 N.W.2d 883]

that Fonville wished to withdraw his plea because the plea agreement would encompass the requirement that he register as a sex offender. Fonville then addressed the trial court and stated that he wanted a jury trial. Fonville asserted that his defense counsel had told him that he would be making a “big mistake going to trial.” He further explained:

When I came into the court on the 13th of September, I sat in the holding cell all day and never came to court cause my lawyer set a court date with the prosecutor indicating to him that I would take a [ Cobbs ] plea, when I did not. That's why I never came into court that day, because I was supposed to notify my lawyer and if I wanted to plead to get hold of him, and I never agreed to it. So, naturally, I didn't come to court.

So then I came back into court on the 15th of September, that following Friday, and that's when my lawyer kept telling me to taking [sic] a Cobbs plea, four years to ten. I told him numerous times I wanted a jury. That's when he said a second time I was making a mistake.

So, when I came into court the 15th of September my lawyer came in a third time and said to my mom, you should take the plea. While the prosecutor was talking to my mom, I looked at my mom and she said “take it”. So, I did, thinking she was looking out for my best interest, even though I didn't do this. When I talked to my mom later that evening she said the prosecutor said he knew I didn't [291 Mich.App. 371] kidnap those kids and he said to my mom if I went to trial that he would have to play hardball.

Fonville denied the enticement charge, stating: “I would never lure a kid or kidnap anyone. It's a hard pill to swallow especially when I would never force [JR 2] or [JR 1] to do something they didn't want to do. I love kids and always try to help if I can.” The trial court indicated that it needed to review the plea transcript, so it adjourned sentencing.

Before the trial court could reconvene for sentencing, Fonville's attorney moved to withdraw as counsel for Fonville, which the trial court granted. And in January 2007, Fonville, represented by new counsel, again moved to withdraw his plea. Although admitting child endangerment, Fonville asserted in his motion that he should be allowed to withdraw his plea because he had no “evil, criminal intent,” merely “reckless criminal intent.” The prosecution responded, asserting that Fonville's admission that he fraudulently detained the children supported the plea.

At a February 2007 hearing on the motion, defense counsel asserted that Fonville had entered his plea on the basis of inaccurate and misleading advice of his former counsel and that he was innocent of the charge of child enticement. Defense counsel asserted that when Fonville was told that he could plead guilty of child enticement instead of kidnapping, he did not understand that both kidnapping and child enticement carried potential life sentences. Defense counsel contended that the facts did not support a conviction of child enticement, noting that the children were unharmed. Defense counsel argued that the factual basis for the plea only supported a conviction of second-degree child abuse, to which Fonville was willing to plead guilty.

[291 Mich.App. 372] The prosecution responded, noting that the transcript of the plea proceedings clearly showed that Fonville acknowledged that he understood that the maximum sentence for child enticement is life in prison. The prosecution further argued that the facts as pleaded showed that Fonville had committed the offense of child enticement. The prosecution pointed out that Fonvilledid

[804 N.W.2d 884]

not claim innocence: he admitted that he fraudulently detained the children by concealing their whereabouts from their mother while he was driving around looking for cocaine. Thus, the prosecution contended that Fonville had not demonstrated that the requested plea withdrawal would be in the interest of justice. The prosecution additionally argued that permitting Fonville to withdraw his plea would result in substantial prejudice. In support of this position, the prosecution noted that if the case went to trial, the children would have to testify. According to the prosecution, this would be extremely difficult for them because they would have to be psychologically prepared to do so.

Considering Fonville's motion, the trial court held that (1) Fonville's plea was valid, (2) Fonville entered into a Cobbs agreement, (3) the prosecutor was the sole charging authority, (4) nothing indicated that Fonville was innocent, and (5) Fonville admitted the facts supporting his plea. The trial court ultimately reasoned:

... I understand...