Michigan Supreme Court

Lansing, Michigan

Marilyn Kelly,

 Chief Justice

Michael F. Cavanagh

Elizabeth A. Weaver

Maura D. Corrigan

Robert P. Young, Jr.

Stephen J. Markman

Diane M. Hathaway, Justices

Order 

June 18, 2010 

139540 

PEOPLE OF THE STATE OF MICHIGAN, 

Plaintiff-Appellee, 

v SC: 139540 

 COA: 285402 

Oakland CC: 2007-215779-FH 

BERNARD WILLIAM KADE, 

Defendant-Appellant. 

_________________________________________/ 

 On May 11, 2010, the Court heard oral argument on the application for leave to 

appeal the July 7, 2009 judgment of the Court of Appeals. On order of the Court, the 

application is again considered, and it is DENIED, because we are not persuaded that the 

questions presented should be reviewed by this Court. 

 KELLY, C.J. (concurring). 

I concur with the Court’s order denying defendant’s application for leave to 

appeal. I write separately to discuss MCR 6.302(B), what I believe to be the Court of 

Appeals incorrect interpretation of that rule in People v Boatman,

1

 and why this Court 

should amend the rule. 

THE EFFECT OF THE HABITUAL OFFENDER ENHANCEMENT 

Defendant was charged with third-degree fleeing and eluding and driving with a 

suspended license, second offense. At his arraignment on July 31, 2007, he pled guilty to 

the charges. The trial court advised him that the maximum possible sentence for fleeing 

and eluding is five years in prison. On August 2, 2007, the prosecutor filed a timely 

supplemental information under MCL 769.10 and MCL 769.13(3) charging defendant as 

a third habitual offender. The court subsequently sentenced defendant to 30 months to 10 

years in prison as a third habitual offender. Without the enhancement, defendant’s 

guidelines range would have been 7 to 34 months in prison. 

 

1 People v Boatman, 273 Mich App 405 (2006). 
2

Defendant sought withdrawal of his plea, vacation of his sentence, and 

resentencing. He claimed that his plea was not knowing and voluntary because the judge 

had not informed him of the enhanced maximum sentence for his offense. The judge 

denied the motions. He ruled that he had informed defendant of the consequences of his 

plea and that defendant had said he pleaded guilty understandingly, voluntarily, and 

without being coerced or promised anything. 

The Court of Appeals granted defendant’s application for leave to appeal and 

affirmed the convictions and sentences.2

 It ruled that defendant was not entitled to be 

informed of the enhanced maximum sentence under MCR 6.302(B). We granted oral 

argument on defendant’s application for leave to appeal to this Court.3

Defendant argues that he should be allowed to withdraw his plea because he had 

not been informed of the enhanced maximum sentence for the offense when he pled 

guilty. He relies on MCR 6.302(B).4

 He also argues that the Court of Appeals 

incorrectly decided Boatman four years ago. 

PEOPLE V BOATMAN 

 

2 People v Kade, unpublished opinion per curiam of the Court of Appeals, issued July 7, 

2009 (Docket No. 285402). 

3 People v Kade, 485 Mich 1039 (2010). 

4

 MCR 6.302 provides, in pertinent part: 

(A) Plea Requirements. The court may not accept a plea of guilty or 

nolo contendere unless it is convinced that the plea is understanding, 

voluntary, and accurate. Before accepting a plea of guilty or nolo 

contendere, the court must place the defendant or defendants under oath 

and personally carry out subrules (B)-(E). 

(B) An Understanding Plea. Speaking directly to the defendant or 

defendants, the court must advise the defendant or defendants of the 

following and determine that each defendant understands: 

(1) the name of the offense to which the defendant is 

pleading; the court is not obliged to explain the elements of 

the offense, or possible defenses; 

(2) the maximum possible prison sentence for the 

offense and any mandatory minimum sentence required by 

law. [Emphasis added.] 
3

In Boatman, the judge informed the defendant at his plea hearing that the 

maximum sentence for the offense with which he was charged was two years. Defendant 

had already been informed that he was also being charged as an habitual offender. His 

maximum possible sentence was 15 years. His plea agreement was that his minimum 

sentence would be within the sentencing guidelines range. However, at the plea hearing, 

confusion arose over the applicable guidelines range, with the prosecutor referring to the 

enhanced range and defense counsel referring to the unenhanced range. The judge 

sentenced the defendant to 3 to 15 years imprisonment, which was within the enhanced 

range. The defendant moved to set aside his plea because, when he agreed to it, he 

believed his maximum sentence would be two years. When his motion was denied, he 

appealed to the Court of Appeals, which denied leave to appeal. This Court remanded 

the case to the Court of Appeals for consideration as on leave granted.5

On remand, the Court of Appeals concluded that a trial court need not inform a 

defendant of the enhanced maximum sentence in order to comply with MCR 6.302(B). 

The court reasoned that the wording of the court rule requires only that a defendant be 

advised of the maximum possible sentence and any mandatory minimum sentence. 

However, the court conceded that the wording does not embody the rule’s spirit: 

 [T]he existence of separate guidelines for use with habitual offenders 

creates a tension between the specific language and implied spirit of the 

court rule. Clearly, an important focus of MCR 6.302 is to assure that any 

defendant who has entered into a sentencing agreement has made a 

knowing, understanding, and informed plea decision. This requires a 

defendant to be informed of the consequences of his or her plea and, 

necessarily, the resultant sentence. Unfortunately, the language of the court 

rule does not encompass a specific requirement to inform a habitual 

offender regarding the effect this status has on sentencing. This is at odds 

with the intent of the law, which is to assure an informed decision by a 

defendant in accepting or entering into a plea agreement by requiring that 

the most significant repercussion of that agreement, by actual duration of 

the sentence to be imposed, be known and understood in advance.[6]

The Court of Appeals concluded that it lacked the authority to expand the scope of 

the rule’s language. But it found that the defendant was entitled to withdraw his plea 

because of the confusion over the applicable guidelines. In doing so, the court explicitly 

stated that the defendant was not entitled to relief under the court rule. 

Concurring in result only, Judge SERVITTO opined that a defendant’s status as an 

habitual offender directly affects the possible maximum sentence for the underlying 

 

5 People v Boatman, 475 Mich 862 (2006). 

6 Boatman, 273 Mich App at 409. 
4

offense. As a consequence, she wrote, the court rule requires a trial court to advise a 

defendant of the maximum possible sentence, including an habitual offender 

enhancement. She added that “[t]o hold otherwise would undermine the goal of ensuring 

that guilty pleas are made voluntarily.”7

The Court of Appeals decision in Boatman was not appealed to this Court, and this 

Court has never addressed the proper interpretation and scope of the rule. 

BOATMAN SHOULD BE OVERRULED 

I concur with the Court’s order denying defendant’s application for leave to appeal 

because of this case’s unique procedural posture. Defendant has already been released on 

parole, and his parole is scheduled to be discharged on September 22, 2010. It seems 

unlikely that the Court can afford him meaningful relief. However, I believe that the 

Court should prevent a similar injustice from occurring in a future case. 

MCL 769.10, the habitual offender statute, provides possible sentence 

enhancements that apply directly to the sentence imposed for an underlying offense. This 

enhancement merges with the underlying offense rather than constituting an independent 

offense.8

 

MCR 6.302(B)(2) requires that a defendant be informed of “the maximum 

possible prison sentence” for the offense. I believe that an habitual offender 

enhancement, which lengthens the maximum sentence for “the offense,” falls within this 

rule because the enhanced maximum becomes the “maximum possible prison sentence” 

for the principal offense. Therefore, as Judge SERVITTO noted, “[b]y failing to advise a 

defendant of the potential maximum sentence that may be imposed by virtue of his or her 

status as an habitual offender, a trial court is not advising of the true potential maximum 

sentence.”9

I also believe that Boatman’s analysis was logically flawed. The Court of Appeals 

stated that “defendant was informed of the maximum sentence for the charged ‘offense,’ 

because ‘[t]he habitual-offender statute does not create a substantive offense that is 

separate from and independent of the principal charge.”10 Yet if an habitual offender

 

7 Id. at 414 (SERVITTO, J., concurring in result only). 

8 People v Oswald (After Remand), 188 Mich App 1, 12 (1991). 

9 Boatman, 273 Mich at 414 (SERVITTO, J., concurring in result only) (quotation marks 

omitted). 

10 Id. at 407, citing Oswald (After Remand), 188 Mich App at 12 (1991). 
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the 

foregoing is a true and complete copy of the order entered at the direction of the Court. 

 _________________________________________ 

 Clerk

June 18, 2010 

0615 

 

5

supplement is not a separate offense, then it logically follows that it must be linked to, or 

considered one with, the underlying offense. As such, to comply with MCR 6.302(B)(2), 

a defendant must be made aware of the consequences of “the offense” including any 

habitual offender enhancement. 

I nonetheless recognize that MCR 6.302(B)(2) and MCL 769.13(3)11 arguably 

conflict. The rule fosters knowing and intelligent pleas by requiring that a defendant be 

informed of the maximum possible time he or she may face in prison. The statute permits 

a prosecutor to file notice of an habitual offender enhancement after entry of a plea. 

Accordingly, the Court has taken steps administratively to consider amending the rule to 

remedy any perceived or actual tension between it and the statute.12

In this case, the prosecutor had not filed a supplemental information when 

defendant pled guilty. Thus, the trial court correctly informed defendant of the maximum 

possible sentence he faced under the facts as they existed at the time. That said, the 

entire period that a defendant may serve in prison strikes at the very essence of a 

defendant’s decision to plead guilty. When a defendant makes that decision, he or she 

should know the total duration of his or her potential incarceration. Therefore, as a 

matter of basic fairness, we should amend MCR 6.302 to allow a defendant to withdraw 

his or her plea if, as in this case, the prosecutor files an habitual offender supplement after 

the plea is entered. 

CONCLUSION 

I concur with the Court’s order denying defendant’s application for leave to 

appeal. However, I urge interested parties to submit their views when the Court 

considers publishing a change to MCR 6.302 for public comment and hearing. I believe 

that MCR 6.302 should be amended to prevent the situation defendant faced in this case 

from arising again. 

 CAVANAGH, MARKMAN, and HATHAWAY, JJ., join the statement of KELLY, C.J. 

 

11 MCL 769.13(3) governs the timing of habitual offender enhancements. It specifically 

provides that the prosecutor may file a notice of enhancement after a defendant pleads 

guilty at his or her arraignment. 

12 ADM File 2010-20.