People v. White

• Decision Date: 17 June 2021
• Docket Number: 352999
• Citation: 337 Mich.App. 558,977 N.W.2d 138
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Paul Edward WHITE, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

337 Mich.App. 558

977 N.W.2d 138

PEOPLE of the State of Michigan, Plaintiff-Appellee,

v.Paul Edward WHITE, Defendant-Appellant.

No. 352999

Court of Appeals of Michigan.

Submitted June 2, 2021, at Grand Rapids.

Decided June 17, 2021, 9:00 a.m.

Dana Nessel, Attorney General, Fadwa A. Hammoud, Solicitor General, Christopher R. Becker, Prosecuting Attorney, and James K. Benison, Chief Appellate Attorney, for the people.

Susan K. Walsh for defendant.

Before: Boonstra, P.J., and Markey and Servitto, JJ.

Markey, J. Defendant appeals by delayed leave granted the trial court's order denying his postappeal motion for relief from judgment, MCR 6.500 et seq. Defendant sought to withdraw guilty pleas entered several years earlier on the basis that neither the trial court nor his attorney had advised him that he would first have to complete a sentence for a crime for which he was on parole before he would begin to serve the sentences imposed for the offenses to which he pleaded guilty. The trial court ruled that defendant failed to demonstrate good cause or actual prejudice for purposes of MCR 6.508 because the court was not required to advise defendant about the consequences of his parole violation on his guilty-plea sentences. The trial court, however, failed to address defendant's argument that trial counsel was ineffective because counsel did not advise defendant of the consequences of the parole violation on the sentences. We reverse and remand for further proceedings.

In 2014, defendant pleaded guilty to two counts of armed robbery, MCL 750.529, and one count of tampering with a witness, MCL 750.122(7)(b). He was subsequently sentenced as a fourth-offense habitual offender, MCL 769.12, to 30 to 90 years’ imprisonment for each of the robbery convictions and 10 to 30 years’ imprisonment for the witness-tampering conviction, with the latter sentence to be served consecutively to the concurrent robbery sentences. At the plea hearing, the trial court had informed defendant of its discretion to order consecutive sentencing. See MCL 750.122(11). Additionally, and particularly relevant to this appeal, defendant committed the offenses while on parole for a conviction of second-degree murder, MCL 750.317, and the robbery sentences were made consecutive to the completion of the remaining portion of the term of imprisonment imposed on defendant for second-degree murder.¹ See MCL 768.7a(2) ("If a person is convicted and sentenced to a term of imprisonment for a felony committed while the person was on parole from a sentence for a previous offense, the term of imprisonment imposed for the later offense shall begin to run at the expiration of the remaining portion of the term of imprisonment imposed for the previous offense."). At the plea hearing, the trial court did not advise defendant of the mandatory consecutive sentencing relative to the parole violation and completion of the murder sentence. Although defendant moved to withdraw his guilty pleas in the trial court in 2015, his argument was not premised on a claim that the court or defendant's attorney was legally obligated to advise him of the mandatory consecutive sentencing and failed to do so.²

On direct appeal, this Court rejected defendant's arguments that his pleas were coerced, that defense counsel was ineffective for failing to raise that particular issue and for not seeking suppression of a letter that defendant had written to his fiancée that served as the basis for the witness-tampering charge, and that the trial court erred by not granting his request for substitute counsel. People v. White , unpublished per curiam opinion of the Court of Appeals, issued July 21, 2016 (Docket No. 327249), 2016 WL 3946744. As part of that appeal, defendant submitted supplemental Standard 4 briefs. Despite knowing that the trial court had imposed mandatory consecutive sentences because of the parole violation, defendant at no point in his briefs contended that he should have been informed about the mandatory consecutive sentencing at the plea hearing, that he did not know about such sentencing when entering his plea, or that he would not have pleaded guilty to the three offenses had he known about the mandatory consecutive sentencing. Our Supreme Court denied defendant's application for leave to appeal. People v. White , 500 Mich. 959, 891 N.W.2d 858 (2017).

Subsequently, defendant filed a motion seeking postappeal relief from judgment under MCR 6.500 et seq. Defendant argued that the trial court abused its discretion by failing to advise him at the plea proceeding about the mandatory consecutive sentencing required by the parole violation. Defendant further contended that his trial counsel was ineffective for also having failed to advise him about the mandatory consecutive sentencing, which resulted in a defective plea. Finally, defendant maintained that appellate counsel was ineffective for failing to raise an issue regarding the trial court's abuse of discretion in not informing defendant of the mandatory consecutive sentencing and for failing to raise an issue concerning trial counsel's similar act of nonfeasance.

The trial court denied the motion in a written opinion and order, explaining that it had "no obligation to advise a defendant of the consecutive nature of the sentences to be imposed." The court additionally indicated that "while a trial court errs when it misinforms a defendant as to the nature of the consecutive penalty, no error occurs when the court remains silent on the issue." The trial court determined, therefore, that defendant failed to demonstrate good cause or actual prejudice as necessary to obtain postappeal relief. The trial court did not address defendant's arguments that trial counsel was ineffective for failing to advise defendant of the mandatory consecutive sentencing and that appellate counsel was ineffective for failing to argue that trial counsel was ineffective for not informing defendant of the mandatory consecutive sentencing. In the opening paragraph of the analysis portion of the opinion and order, the trial court had stated the following:

The defendant's motion raises three issues, all of which rely on the premise that this Court's failure to advise the defendant of the requirement for consecutive sentencing as to the armed robbery charges constituted reversible error. This premise is incorrect.

Indeed, the trial court's premise that all of the issues concerned the soundness of how it had advised defendant was incorrect because the issues also included trial counsel's alleged failure to advise defendant about the mandatory consecutive sentencing.

Defendant moved for reconsideration. Defendant stated, in part, that "[t]his motion is based upon [the] trial court only addressing the consecutive sentencing part of the grounds raised in Mr. White's first argument and not the complete issue itself." The trial court denied the motion for reconsideration, simply indicating that defendant presented the same issues already ruled upon by the court and failed to demonstrate a palpable error by which the court and the parties had been misled.

Defendant filed a delayed application for leave to appeal in this Court, essentially raising the same issues presented in his motion for relief from judgment. This Court granted the application, "limited to the issues raised in the application." People v. White , unpublished order of the Court of Appeals, entered June 9, 2020 (Docket No. 352999).

On appeal, defendant argues that he was not properly advised by the trial court at the plea hearing of the mandatory consecutive sentencing and that his trial and appellate attorneys were ineffective. Defendant maintains that trial counsel "never told him that he could be subject to further consecutive sentencing due to his parole violation" and that had defendant known that he would be subject to mandatory consecutive sentencing because of his parole status, he "would not have pled guilty." Defendant further argues that appellate counsel was ineffective for not raising issues regarding the trial court and trial counsel's failures to advise defendant concerning the mandatory consecutive sentencing.³

With respect to motions for postappeal relief, this Court reviews for an abuse of discretion a trial court's decision on the motion and reviews for clear error its underlying findings of fact. People v. Kasben , 324 Mich. App. 1, 7, 919 N.W.2d 463 (2018). "A trial court necessarily abuses its discretion when it makes an error of law." People v. Everett , 318 Mich. App. 511, 516, 899 N.W.2d 94 (2017). "The proper interpretation and application of a court rule is a question of law that is reviewed de novo[,]" and "[t]o the extent that this case implicates constitutional issues, they are likewise reviewed de novo." People v. Cole , 491 Mich. 325, 330, 817 N.W.2d 497 (2012). Court rules are to be construed to effectuate the intent of the Michigan Supreme Court, which drafts and amends the rules. In re Mota, Minors , 334 Mich. App. 300, 311, 964 N.W.2d 881 (2020). "Clear and unambiguous language contained in a court rule must be given its plain meaning and is enforced as written." Id . MCR 6.508(D) provides, in pertinent part:

The defendant has the burden of establishing entitlement to the relief requested. The court may not grant relief to the defendant if the motion

* * * (3) alleges grounds for relief, other than jurisdictional defects, which could have been raised on appeal from the conviction and sentence or in a prior motion under this subchapter, unless the defendant demonstrates

(a) good cause for failure to raise such grounds on appeal or in the prior motion, and

(b) actual prejudice from the alleged irregularities that support the claim for relief. As used in this subrule, "actual prejudice" means that,

* * *

(ii) in a conviction entered on a plea of guilty, guilty but mentally ill, or nolo contendere, the defect in the proceedings was such that it renders the plea an involuntary

...