People v. Haynes, Docket Nos. 190360

• Decision Date: 14 February 1997
• Docket Number: Docket Nos. 190360,190361 and 190366
• Citation: 562 N.W.2d 241,221 Mich.App. 551
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant/Cross-Appellee, v. Kermit Eldridge HAYNES, Defendant-Appellee/Cross-Appellant. (After Remand) PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Cortez MILLER, Defendant-Appellee. (After Remand) PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Deshawn LYONS, also known as Deshaun Lyons, Defendant-Appellee. (After Remand)
• Court: Court of Appeal of Michigan — District of US

Page 241

562 N.W.2d 241

221 Mich.App. 551

PEOPLE of the State of Michigan, Plaintiff-Appellant/Cross-Appellee, v. Kermit Eldridge HAYNES, Defendant-Appellee/Cross-Appellant.

(After Remand)

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Cortez MILLER, Defendant-Appellee. (After Remand)

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Deshawn LYONS, also known as Deshaun Lyons,

Defendant-Appellee. (After Remand)

Docket Nos. 190360, 190361 and 190366.

Court of Appeals of Michigan.

Submitted Dec. 3, 1996, at Detroit.

Decided Feb. 14, 1997, at 9:15 a.m.

Released for Publication April 29, 1997.

[221 Mich.App. 553] Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, [221 Mich.App. 554] Training, and Appeals, and Thomas M. Chambers, Assistant Prosecuting Attorney, for People.

State Appellate Defender by Susan M. Meinberg, for Kermit Haynes.

Kelley, Cramer, Minock & Gallagher, P.C. by John R. Minock, Ann Arbor, for Cortez Miller and Deshawn Lyons on appeal.

Before JANSEN, P.J., and SAAD and M.D. SCHWARTZ ^*, JJ.

AFTER REMAND

JANSEN, Presiding Judge.

In these consolidated appeals, the Wayne County Prosecutor appeals by leave granted from October 23, 1995, orders of the Detroit Recorder's Court granting these defendants' motions to withdraw their guilty pleas. Defendant Kermit Haynes has also filed a cross appeal. We reverse the trial court's orders granting defendants' motions to withdraw their guilty pleas.

The facts of these cases have been adequately set forth in the prior decisions of this Court and we see no need to reiterate them here. See People v. Haynes, 199 Mich.App. 593, 502 N.W.2d 758 (1993); People v. Miller, 199 Mich.App. 609, 503 N.W.2d 89 (1993); People v. Lyons (On Remand), 203 Mich.App. 465, 513 N.W.2d 170 (1994). However, a full recitation of the procedural history is necessary in order to resolve these appeals. We will address each defendant's appeal separately.

Docket No. 190360

Kermit Eldridge Haynes, born July 8, 1973, was involved in the shooting death of Benjamin Gravel on February 8, 1990. Haynes, along with five other young men, spent that evening attempting to steal a car at gunpoint because they wanted a car to go to a party. Haynes was the one who actually shot and killed Gravel that night. Haynes was charged with first-degree murder, M.C.L. § 750.316; M.S.A. § 28.548, assault with intent to rob while armed, M.C.L. § 750.89; M.S.A. § 28.284, and possession of a firearm during the commission of a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2). He pleaded guilty as charged on March 27, 1990, and the matter was set for a juvenile sentencing hearing before Detroit Recorder's Court Judge Dalton A. Roberson. Following the hearing, Judge Roberson sentenced Haynes as a juvenile and ordered that he be placed with the Michigan Department of Social Services until the age of twenty-one.

The prosecution appealed that ruling, arguing that the trial court abused its discretion in sentencing Haynes as a juvenile. This Court agreed, reversed the trial court's ruling, and remanded with instructions to sentence Haynes as an adult. Haynes, supra, p. 594, 502 N.W.2d 758. Haynes sought to appeal to the Supreme Court, but leave was denied on April 8, 1994. 445 Mich. 855, 519 N.W.2d 842 (1994). The case was returned to the trial court and sentencing was scheduled for June 8, 1994. However, on June 8, 1994, Haynes filed a motion for relief from judgment pursuant to MCR 6.508(D). Haynes later withdrew his motion for relief from judgment and, on July 1, 1994, he filed a motion to withdraw his guilty plea and for an evidentiary hearing. Haynes claimed that he was entitled to withdraw his guilty plea because it was not made voluntarily, knowingly, and understandingly, because he was denied the effective assistance of counsel, and because he was denied due process.

On September 14, 1994, the trial court granted Haynes' motion for an evidentiary hearing. The prosecution sought leave to appeal in this Court, but the Court, White, P.J., and Hood, J. (Corrigan, J., dissenting), denied leave to appeal in an unpublished order entered on November 21, 1994 (Docket No. 178974). The prosecution then sought leave to appeal in the Supreme Court, and the Supreme Court, in lieu of granting leave to appeal, vacated the trial court's order of September 14, 1994, and further directed that Haynes be sentenced as an adult, but without prejudice to subsequent consideration of the motion to withdraw the guilty plea or motions for other relief that Haynes might pursue. 447 Mich. 1021, 527 N.W.2d 512 (1994).

The case was returned to the trial court, and on December 19, 1994, Haynes was sentenced as an adult to the mandatory term of life imprisonment without the possibility of parole for first-degree murder. The trial court then held an evidentiary hearing regarding Haynes' motion to withdraw his guilty plea on April 13, 1995. Following the hearing, the trial court granted Haynes' motion to withdraw his guilty plea. The prosecution applied for leave to appeal, which was granted by this Court on February 1, 1996.

The prosecution contends that the trial court abused its discretion in granting Haynes' motion to withdraw his guilty plea. The trial court applied MCR 6.310(B) (withdrawal of plea before sentence) in deciding the motion. The prosecution contends that the trial court should have applied MCR 6.311 (challenging plea after sentence). We agree with the prosecutor in this regard.

The trial court sentenced Haynes as a juvenile on August 28, 1991. Although the prosecutor has appealed the propriety of sentencing Haynes as a juvenile, Haynes has, at all times during the pendency of these appeals, been under sentence. Further, this Court's first opinion in Haynes reversed the trial court's decision to sentence Haynes as a juvenile and remanded for him to be sentenced as an adult. We cannot agree with Haynes' claim that the Supreme Court's order of December 7, 1994, vacated his sentence such that the case is in a presentence posture and MCR 6.310(B) applies. The Supreme Court's order directed that the Recorder's Court order of September 14, 1994 (granting Haynes an evidentiary hearing regarding his motion to withdraw his guilty plea) be vacated. The Supreme Court further directed that Haynes be "sentenced as an adult forthwith, ... but without prejudice to subsequent consideration of the motion to withdraw the plea of guilty or motions for other relief which the defendant might pursue." 447 Mich. at 1021-1022, 527 N.W.2d 512. The Supreme Court's order cannot be read as vacating Haynes' sentence so that the case was placed in a presentence posture when he moved to withdraw his guilty plea.

On the basis of the procedural history of this case, logic dictates that Haynes moved to withdraw his guilty plea after sentencing. Here, the trial court had sentenced Haynes, although as a juvenile, and the appellate issues have all related to the propriety of sentencing him as a juvenile rather than as an adult. Therefore, we conclude that the trial court erred in applying MCR 6.310(B) to Haynes' motion to withdraw his guilty plea. The proper court rule to apply in this case is MCR 6.311, which controls the challenge of a plea after sentencing and we will apply MCR 6.311 in this case.

After a plea has been accepted by the trial court, there is no absolute right to withdraw the plea. People v. Eloby (After Remand), 215 Mich.App. 472, 474, 547 N.W.2d 48 (1996). When a motion to withdraw a plea is made after sentencing, the decision whether to grant it rests within the discretion of the trial court. Id., p. 475, 547 N.W.2d 48. That decision will not be disturbed on appeal unless there is a clear abuse of discretion resulting in a miscarriage of justice. Id.

Haynes primarily contends, and the trial court agreed, that he was denied the effective assistance of counsel because trial counsel did not explain to him that the prosecution had the right to appeal his sentence if the trial court decided to sentence him as a juvenile. Thus, Haynes claims that he did not fully understand the ramifications of pleading guilty of first-degree murder because the appellate courts could reverse the trial court's decision and order that he be sentenced as an adult. Therefore, it is Haynes' claim that his plea was not made knowingly, voluntarily, or understandingly.

In reviewing a claim of ineffective assistance of counsel arising out of a guilty plea, the courts should focus on whether the defendant's plea was made voluntarily and understandingly. In re Oakland Co. Prosecutor, 191 Mich.App. 113, 120, 477 N.W.2d 455 (1991). Whether a plea is unintelligently made depends on whether counsel's advice was within the range of competence demanded of attorneys in criminal cases, not on whether counsel's advice was right or wrong. Id., p. 122, 477 N.W.2d 455. Further, requests to withdraw pleas are generally regarded as frivolous where the circumstances indicate that the defendant's true motivation for moving to withdraw is a concern regarding sentencing. People v. Holmes, 181 Mich.App. 488, 492, 449 N.W.2d 917 (1989). Indeed, this Court has stated that counsel's incorrect prediction concerning a defendant's sentence and the prosecutor's role in sentencing is not enough to support a claim of ineffective assistance of counsel. In re Oakland Co. Prosecutor, supra, p. 124, 477 N.W.2d 455. More recently, this Court "decline[d] to hold that a guilty plea to first-degree murder is per se proof that [a] defendant received ineffective assistance of counsel." People v. Effinger, 212 Mich.App. 67, 71, 536 N.W.2d 809 (1995).

Haynes claims that his counsel did not advise him that the prosecutor had the right to appeal his sentence if he was sentenced as a juvenile. However, the record indicates that Haynes was well aware of the sentencing consequences at the...