Michigan Supreme Court Lansing, Michigan

Marilyn Kelly,
Chief Justice

Michael F. Cavanag h
Elizabeth A. Weave r

Maura D. Corriga n Robert P. Young, Jr. Stephen J. Markma n Diane M. Hathaway,
J ustices 

# 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 applic ation for leave to appeal the July 7, 2009 judgme nt 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.

K ELLY , C.J. ( concurring ).

I concur with the Court’s order denyin g 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 interpre tation 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 an d driving with a suspended license, second offense. At his arra ignment on July 31, 20 07, he pled guilty to the charges. The trial court advised him th at 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) char ging defendant as a third habitual offender. The court subsequen tly sentenced defendant to 30 months to 10 years in prison as a third habitual offend er. 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 wa s not knowing and voluntary because the judge

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

denied the motions. He ruled that he had in formed defendant of the consequences of his plea and that defendant had said he plead ed 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 senten ce under MCR 6.302(B). We granted oral argument on defendant’s application fo r leave to appeal to this Court. 3

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

not been informed of the enhanced maximu m 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 ma y not accept a plea of guilty or

nolo contendere unless it is convin ced 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. Speaki ng directly to the defendant or defendants, the court must advise the defendant or defendants of the following and determine that ea ch 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 offens e 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 guide lines range. However, at the plea hearing, confusion arose over the appli cable guidelines range, with the prosecutor referring to the enhanced range and defense counsel referring to the une nhanced range. The judge sentenced the defendant to 3 to 15 years im prisonment, 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 de nied leave to appeal. This Court remanded the case to the Court of Appeals fo r consideration as on leave granted. 5

On remand, the Court of Appeals conclude d 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 c ourt 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 guidelin es 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 eff ect this status has on sent encing. This is at odds with the intent of the law, which is to assure an informed decision by a defendant in accepting or en tering into a plea agr eement by requiring that the most significant repercussion of th at agreement, by actual duration of the sentence to be imposed, be known and understood in advance. [6]

The Court of Appeals concluded that it lack ed the authority to expand the scope of the rule’s language. But it found that th e 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 re sult only, Judge S ERVITTO opined that a defendant’s status as an habitual offender directly affects the po ssible 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 othe rwise 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 or der denying defendant’s applic ation for leave to appeal because of this case’s unique pr ocedural posture. Defendant has already been released on parole, and his parole is sche duled to be discharged on Se ptember 22, 2010. It seems unlikely that the Court can afford him mean ingful relief. However, I believe that the Court should prevent a simi lar injustice from occurring in a future case.

MCL 769.10, the habitual offender st atute, provides possible sentence enhancements that apply direc tly to the sentence imposed for an underlying offense. This enhancement merges with the underlying offense rather th an constituting an independent

offense. 8

MCR 6.302(B)(2) requires that a defenda nt be informed of “the maximum possible prison sentence” for the offense . I believe that an habitual offender enhancement, which lengthens the maximum sent ence for “the offense, ” falls within this

rule because the enhanced maximum becomes the “maximum possible prison sentence” for the principal offense. Therefore, as Judge S ERVITTO noted, “[b]y failing to advise a defendant of the potential maxi mum sentence that may be impos ed 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 in formed of the maximum senten ce for the charged ‘offense,’ because ‘[t]he habitual-offender statute does not create a su bstantive offense that is separate from and independent of the principal charge.” 10 Yet if an habitual offender

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

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

9 Boatman , 273 Mich at 414 (S ERVITTO , J., concurring in resu lt 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 Mi chigan Supreme Cour t, 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 MC R 6.302(B)(2) and MCL 769.13(3) 11 arguably conflict. The rule fosters knowing and intellig ent 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 enhancem ent after entry of a plea. Accordingly, the Court has taken steps admini stratively to consider amending the rule to remedy any perceived or actual te nsion between it and the statute. 12

In this case, the prosecu tor had not filed a supplemental information when defendant pled guilty. Thus, th e trial court correctly inform ed defendant of the maximum possible sentence he faced under the facts as they existed at the tim e. That said, the entire period that a defendan t 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 M CR 6.302 to allow a defendant to withdraw his or her plea if, as in this case, the prosecut or files an habitual o ffender supplement after the plea is entered.

CONCLUSION

I concur with the Court’s order denyin g defendant’s application for leave to appeal. However, I urge interested par ties 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 amen ded to prevent the situation de fendant faced in this case from arising again.

C AVANAGH , M ARKMAN , and H ATHAWAY , JJ., join the statement of K ELLY , C.J.

11 MCL 769.13(3) governs the timing of habitu al offender enhancemen ts. It specifically provides that the prosecutor may file a notic e of enhancement after a defendant pleads guilty at his or her arraignment.

12 ADM File 2010-20.