People v. Martinez, 311804.

• Decision Date: 04 November 2014
• Docket Number: No. 311804.,311804.
• Parties: PEOPLE v. MARTINEZ.
• Court: Court of Appeal of Michigan — District of US

307 Mich.App. 641

861 N.W.2d 905

PEOPLE

v.MARTINEZ.

No. 311804.

Court of Appeals of Michigan.

Submitted Dec. 3, 2013 at Grand Rapids.

Decided Nov. 4, 2014, at 9:10 a.m.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, D.J. Hilson, Prosecuting Attorney, and Terrence E. Dean, Assistant Prosecuting Attorney, for the people.

Gerald Ferry for defendant.

Gilbert A. Martinez in propria persona.

Before: SAWYER, P.J., and MARKEY and STEPHENS, JJ.

Opinion

PER CURIAM.

Defendant appeals by right his conviction following a bench trial of first-degree criminal sexual conduct (CSC), MCL 750.520b(1)(a). He was sentenced to 15 to 25 years' imprisonment. Defendant argues that the evidence at trial was insufficient to support his conviction and, in a Standard 4 brief, that the trial court abused its discretion by vacating his guilty plea to a charge of second-degree CSC, MCL 750.520c(1)(a), that was entered pursuant to a plea bargain with the prosecutor “to dismiss the original charge of first-degree CSC and ... not bring any other charges regarding sexual contact or penetration with [the complainant] that grows out of this same investigation that occurred during the period of 1996 through 2000.” The plea agreement also had a Cobbs¹ component that “the Court would not impose a minimum sentence of more than four years in” prison. The trial court accepted defendant's guilty plea under the plea bargain but vacated it before sentencing. We vacate defendant's conviction and sentence for first-degree CSC and remand for sentencing on second-degree CSC in accordance with the plea agreement.

On October 29, 2001, defendant pleaded guilty to a charge of child sexually abusive activity involving the complaint. MCL 750.145c(2). Defendant was sentenced for that offense to 4 to 20 years' imprisonment. On March 14, 2007, defendant was granted parole but violated the terms of his release by attempting to contact the complainant, who informed her mother. The complainant disclosed to her mother that defendant had sexually assaulted her during the time of the making of the sexually abusive materials that were the subject of defendant's conviction. The complainant's mother contacted the police, resulting in defendant's arrest for the parole violation.

In an interview with the police, defendant initially denied having had any sexual contact with the complainant but later admitted that he had molested her three times. He later claimed that his statement regarding molestation referred to his actions of producing videotapes. On the basis of the new allegations, the prosecutor charged defendant with one count of first-degree CSC, MCL 750.520b(1)(a), alleging an occurrence during 1996 to 2001 of “ penile-vaginal and/or digital-vaginal” penetration of a victim under the age of 13. After a preliminary examination on November 4, 2008, defendant was bound over to the circuit court. On February 27, 2009, the prosecution filed notice of its intent to introduce evidence under MRE 404(b), MCL 768.27, and MCL 768.27a of other acts of “sexual contact and penetration by defendant with [the complainant] both before and after the charged events.” And on April 20, 2009, the prosecutor moved to amend the information to allege three counts of first-degree CSC: (1) “digital-vaginal,” (2) “penile-vaginal,” and (3) “ object-vaginal.” This motion was based on the complainant's testimony at the preliminary examination concerning an uncharged act of intercourse and “many other acts of sexual penetration.”

On September 14, 2009, the day on which the prosecutor's motion to amend the information was to be heard, defendant instead agreed to enter a guilty plea to a charge of second-degree CSC pursuant to the plea agreement noted already. The circuit court restated the parties' agreement as being that “the prosecutor agreed to dismiss the charge of criminal sexual conduct first degree and any other charges stemming out of this particular investigation in return for a plea of guilty by you to criminal sexual conduct in the second degree.” The circuit court further stated the Cobbs portion of the agreement was that defendant's “minimum sentence will not be more than four years in the Michigan Department of Corrections and that you will receive credit for any time served waiting for trial on this particular offense and that it will not be consecutive to your parole term.” The circuit court accepted defendant's plea and an order of nolle prosequiregarding the original count of first-degree CSC was entered on September 18, 2009. Defendant's sentencing was set for October 13, 2009, but adjourned several times.

On October 6, 2009, the complainant, in an interview with a social worker, stated new allegations regarding fellatio with defendant. Defendant does not dispute that the prosecutor was not previously aware of these allegations. The register of actions in this case reflects the filing of an information on October 7, 2009, but one is not contained in the circuit court file. Apparently, the prosecutor brought two counts of first-degree CSC involving oral penetration of the complainant in Muskegon Circuit Court Docket No. 10–59054–FC. On March 12, 2010, defendant moved to quash the new charges on the basis that they were barred by the plea agreement. On March 22, 2010, the prosecution filed a brief in opposition to the motion, arguing that the new charges were not covered by the plea agreement because defendant did not disclose the allegations regarding fellatio and that, because the allegations were unknown to the prosecutor when the plea agreement was negotiated, they did not “grow[ ] out of [the] same investigation.” Alternatively, the prosecution argued that defendant misled the prosecution into a disadvantageous agreement, or facts had come to light that were not within the fair contemplation of the agreement, or there was a mutual or unilateral mistake that warranted setting aside the agreement. See People v. Reagan, 395 Mich. 306, 318, 235 N.W.2d 581 (1975).

The circuit court held a hearing on defendant's motion to quash the new charges on April 9, 2010. At the hearing, the court reviewed the police reports that were available to the prosecutor and defense counsel at the time the plea agreement was negotiated. The court reasoned that a mutual mistake of fact had occurred because the police reports on which the plea agreement was based did not contain allegations of fellatio. The court determined that the remedy was that “[t]he deal is off” and “[t]here is no plea agreement.” The court also reasoned that because the plea agreement included a Cobbs component, “which the Court had to buy into also,” the fact that the court was unaware of the allegations of fellatio strengthened the court's ruling that a mutual mistake of fact justified rescinding the plea agreement. As a result of the court's ruling, an order was entered vacating defendant's guilty plea to second-degree CSC,² and the new charges regarding fellatio were remanded to the district court for a preliminary examination.³ The trial commenced on May 11, 2010, on the reinstated charge of first-degree CSC. The court reaffirmed its ruling vacating the bargained guilty plea to second-degree CSC.

I. STANDARD OF REVIEW

We review a trial court's decision on a motion to withdraw a plea for an abuse of discretion. People v. Cole, 491 Mich. 325, 329, 817 N.W.2d 497 (2012). “An abuse of discretion occurs when the trial court's decision is outside the range of principled outcomes. Underlying questions of law are reviewed de novo, while a trial court's factual findings are reviewed for clear error.” People v. Terrell, 289 Mich.App. 553, 559, 797 N.W.2d 684 (2010) (citations omitted).

This case also presents questions regarding the interpretation of the court rules, and in particular MCR 6.310, which governs withdrawal or vacation of a plea. See People v. Brown, 492 Mich. 684, 687, 692, 822 N.W.2d 208 (2012). “The proper interpretation and application of a court rule is a question of law that is reviewed de novo.” Cole, 491 Mich. at 330, 817 N.W.2d 497. The rules of statutory construction also apply to court rules. People v. Williams, 483 Mich. 226, 232, 769 N.W.2d 605 (2009). “If the language of the court rule is clear and unambiguous, judicial construction is normally neither necessary nor permitted.” People v. Strong, 213 Mich.App. 107, 111, 539 N.W.2d 736 (1995). Thus, the unambiguous language of court rules must be enforced as written. Williams, 483 Mich. at 232, 769 N.W.2d 605.

II. ANALYSIS

A. THE COURT RULES

At the time the trial court vacated defendant's plea, MCR 6.310(B)(1) provided as follows with respect to withdrawal of a plea after acceptance by the court but before sentencing:

(1) a plea may be withdrawn on the defendant's motion or with the defendant's consent only in the interest of justice, and may not be withdrawn if withdrawal of the plea would substantially prejudice the prosecutor because of reliance on the plea. If the defendant's motion is based on an error in the plea proceeding, the court must permit the defendant to withdraw the plea if it would be required by subrule (C). [Emphasis added.]

It is patent that MCR 6.310(B)(1) did not permit the circuit court to vacate defendant's plea because defendant neither moved for such action nor consented to it.

Subrule (E) of MCR 6.310 is the only other possible provision that might apply to vacating defendant's plea before sentencing. That subsection governs vacating a plea on the prosecutor's motion. It provides: “On the prosecutor's motion, the court may vacate a plea if the defendant has failed to comply with the terms of a plea agreement.” In this case, although the prosecutor moved to vacate defendant's plea in the course of responding to defendant's motion to quash the information alleging new offenses,⁴ the prosecutor's motion was not based on defendant's failing to comply with the terms of the plea agreement. The record shows that defendant fully complied with...