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STATE OF MICHIGAN 

COURT OF APPEALS 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

UNPUBLISHED 

October 20, 2015 

v No. 316467 

Wayne Circuit Court 

DAVID ROARK, LC No. 08-009312-FC 

 Defendant-Appellant. 

Before: FORT HOOD, P.J., and CAVANAGH and K. F. KELLY, JJ. 

PER CURIAM. 

 Defendant appeals by leave granted1 the trial court’s order denying his motion for relief 

from judgment. Defendant was convicted pursuant to a guilty plea of first-degree criminal 

sexual conduct (CSC 1), MCL 750.520b(i)(b)(ii), and child sexually abusive activity, MCL 

750.145c. The trial court sentenced defendant to 14 to 25 years’ imprisonment for the CSC 1 

conviction and 10 to 20 years’ imprisonment for the child sexually abusive activity conviction. 

On appeal, defendant argues that he is entitled to withdraw his plea because the trial court failed 

to advise him of mandatory lifetime electronic monitoring, which rendered his plea involuntary. 

We agree, and vacate the trial court’s order denying defendant’s motion for relief from judgment 

and remand for further proceedings. 

 This Court reviews for an abuse of discretion a trial court’s denial of a defendant’s 

motion for relief from judgment, People v Fonville, 291 Mich App 363, 375-376; 804 NW2d 878 

(2011), and reviews a trial court’s findings of fact supporting its ruling for clear error, People v 

McSwain, 259 Mich App 654, 681-682; 676 NW2d 236 (2003). “An abuse of discretion occurs 

when the decision results in an outcome falling outside the range of principled outcomes.” 

 

1

 Defendant filed a delayed application for leave to appeal the trial court’s denial of his motion 

for relief from judgment with this Court on May 29, 2013, which this Court denied. People v 

Roark, unpublished order of the Court of Appeals, entered October 25, 2013 (Docket No. 

316467). Defendant then applied for leave to appeal with the Michigan Supreme Court. In lieu 

of granting leave to appeal, the Supreme Court remanded the case to this Court for consideration 

as on leave granted. People v Roark, 497 Mich 895; 855 NW2d 743 (2014). 
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Fonville, 291 Mich App at 376. This Court reviews constitutional issues de novo. People v 

Cole, 491 Mich 325, 330; 817 NW2d 497 (2012). 

 MCR 6.310(C) provides that a defendant may file a motion to withdraw a plea within six 

months after sentencing, which defendant failed to do. Accordingly, defendant could only seek 

relief by way of a motion for relief from judgment pursuant to MCR 6.508(D)(3), which 

provides, in relevant part: 

(D) Entitlement to Relief. 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 one to a degree that it would be manifestly unjust to allow the 

conviction to stand[.] 

In sum, defendant must show good cause and actual prejudice. Actual prejudice may result from 

an involuntary plea agreement. 

 Here, defendant demonstrated good cause for failing to raise this issue in a timely appeal 

or motion. Good cause can be established by proving ineffective assistance of appellate counsel. 

People v Reed, 449 Mich 375, 378; 535 NW2d 496 (1995). In granting leave to appeal to this 

Court, the Michigan Supreme Court specifically found that defendant’s initial appellate counsel 

failed to comply with the minimum standards for indigent defense counsel by abandoning 

defendant’s appeal without withdrawing from representation, and imposed costs against the 

attorney. People v Roark, 497 Mich 895; 855 NW2d 743 (2014). After defendant’s appellate 

counsel abandoned his appeal, defendant filed a motion for relief from judgment on his own 

behalf, which led to the current proceedings. Accordingly, we conclude that defendant has 

demonstrated good cause for his failure to raise the involuntary plea issue at an earlier time based 

on ineffective assistance of counsel. 

 Defendant has also demonstrated actual prejudice. The Due Process Clause of the 

Fourteenth Amendment requires that a guilty plea be voluntary and knowing. McCarthy v 
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United States, 394 US 459, 466; 89 S Ct 1166; 22 L Ed 2d 418 (1969). Michigan codified this 

constitutional mandate in MCR 6.302(A), which states that a trial court “may not accept a plea of 

guilty . . . unless it is convinced that the plea is understanding, voluntary, and accurate.” MCR 

6.302(A); People v Brown, 492 Mich 684, 688-689; 822 NW2d 208 (2012). The United States 

Supreme Court has held that, for a plea to be understanding and voluntary, a defendant must be 

“fully aware of the direct consequences” of the plea. Brady v United States, 397 US 742, 755; 

90 S Ct 1463; 25 L Ed 2d 747 (1970). At the very least, the defendant must be informed of “the 

maximum possible prison sentence for the offense and any mandatory minimum sentence 

required by law[.]” MCR 6.302(B)(2). Incorporating the Brady Court’s “direct consequences” 

language, Michigan courts have determined that, for a plea to be knowingly and voluntarily 

made, the trial court must ensure that the defendant has been informed of any condition that 

represents “a definite, immediate and largely automatic effect on the range of defendant’s 

punishment.” Cole, 491 Mich at 333-334 (citation omitted). 

 In Cole, our Supreme Court held that mandatory lifetime electronic monitoring, required 

pursuant to MCL 750.520n(1), is not only a direct consequence of a defendant’s guilty plea, but 

part of the sentence itself. Cole, 491 Mich at 335-337. Therefore: 

[W]hen the governing criminal statute mandates that a trial court sentence a 

defendant entering the plea that he or she will be subject to mandatory lifetime 

electronic monitoring, due process requires the trial court to inform the defendant 

entering the plea that he or she will be subject to mandatory lifetime electronic 

monitoring. And because MCR 6.302 is premised on constitutional due-process 

requirements, a defendant who will be subject to mandatory lifetime electronic 

monitoring must be so advised by the trial court at the time of the plea hearing in 

order to satisfy the court rule’s requirement that the plea be understanding and 

voluntary. [Id.] 

 In light of the Cole decision, defendant has demonstrated that his plea agreement was 

defective. Because defendant pled guilty to criminal sexual conduct under MCL 750.520b, MCL 

750.520n required that he be subject to lifetime electronic monitoring as part of his sentence. 

There was no record evidence that defendant was informed of the impending imposition of 

lifetime electronic monitoring prior to entering his guilty plea. While defendant’s compliance 

with the Sex Offenders Registration Act (“SORA”) was an explicit term of the written plea 

agreement and defendant indicated at the plea hearing that he understood that he would be 

subject to SORA’s requirements, this did not establish that defendant understood he would also 

be subject to lifetime electronic monitoring. Accordingly, the trial court clearly abused its 

discretion when it denied defendant’s motion for relief from judgment on the erroneous factual 

basis that “both the written plea form and defendant’s plea on the record reveal the defendant 

was subject to the mandatory electronic tethering specifically required by statute.” Additionally, 

we are not convinced that the trial court’s belated and fleeting mention of lifetime electronic 

monitoring after the sentencing proceeding concluded rendered defendant’s guilty plea knowing 

and voluntary. Both the Cole decision and MCR 6.302 require that defendant be adequately 

informed before the trial court may accept defendant’s guilty plea. MCR 6.302(A); see Cole, 

491 Mich at 337. After Cole, a defendant who has not been informed of his exposure to lifetime 

electronic monitoring is entitled to withdraw his guilty plea. Cole, 491 Mich at 338. 
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 Contrary to the prosecutor’s assertion on appeal, the fact that defendant’s involuntary 

plea entered in 2008, several years prior to the 2012 Cole decision, does not render Cole’s 

holding inapplicable to the present case. It is true that, absent a substantial change in law that is 

to be applied retroactively, see People v Carp, 496 Mich 440, 469-470; 852 NW2d 801 (2014), 

the validity of a guilty plea is to be determined under the law on the day the plea is taken. 

People v Ward, 459 Mich 602, 611; 594 NW2d 47 (1999). However, Brady’s constitutional 

requirement that defendant be apprised of the “direct consequences” of his guilty plea before his 

plea could be considered knowing and voluntary had been a rule for decades by the time 

defendant entered his plea, Brady, 397 US at 748, and the Cole decision did nothing to change 

Brady’s constitutional mandate. A rule is “new” when it “breaks new ground, imposes a new 

obligation on the States or the Federal Government, or was not dictated by precedent existing at 

the time the defendant’s conviction became final.” Carp, 496 Mich at 472 (internal citations and 

quotations omitted). The Cole Court’s decision did not present a new rule because a reasonable 

jurist considering defendant’s claim at the time his conviction became final would have felt 

compelled by existing precedent to conclude that the same holding reached in Cole was required 

by the Constitution. People v Maxson, 482 Mich 385, 388-389; 759 NW2d 817 (2008). Because 

Cole’s holding represented an application of an existing rule, and not the creation of a new rule, 

it is “applied retroactively even to cases that became final for purposes of direct appellate review 

before the case on which defendant relied for the rule was decided.” Carp, 496 Mich at 471-472. 

 The defect in defendant’s plea proceedings was such that it rendered the plea an 

involuntary one, and it would be manifestly unjust to allow the convictions to stand. This 

holding is mandated by due process and the severity of lifetime electronic monitoring as a 

sentencing requirement. As our Supreme Court has stated: 

When a defendant agrees to plead guilty, he or she is making a bargain, giving up 

trial rights in exchange for some perceived benefit. In order for a defendant to 

accurately assess the benefits of the bargain being considered, the defendant must 

be aware of the immediate consequences that will flow directly from his or her 

decision. Without information about a consequence of a sentence deemed by our 

Legislature to be punishment, which here entails having to wear a device and be 

electronically tracked “from the time the individual is released on parole or from 

prison until the time of the individual’s death,” MCL 791.285(1)(a), it cannot be 

said that a defendant was aware of the critical information necessary to assess the 

bargain being considered. [Cole, 491 Mich at 337-338.] 

 MCR 6.310(C) provides the remedy for a violation of MCR 6.302(B)(2), which includes 

the requirement that the trial court fully inform defendant of the direct consequences of his guilty 

plea. Brown, 492 Mich at 702. Because defendant was not given the required notice, this case is 

remanded to the trial court. Pursuant to MCR 6.310(C), defendant may elect to allow his 

sentence to stand or withdraw his plea, “in which case the trial court must vacate his conviction 

and sentence. In the latter event, the matter may proceed to trial.” Brown, 492 Mich at 703. 

 Defendant also argues that his trial counsel was ineffective for failure to advise him of 

the direct consequences of his guilty plea. Based on our disposition regarding defendant’s initial 

argument on appeal, it is unnecessary to review defendant’s ineffective assistance claim. 
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 The trial court’s denial of defendant’s motion for relief from judgment is vacated. We 

remand to the trial court with instructions to allow defendant to withdraw his plea. If defendant 

withdraws the plea, the prosecutor may reinstate all charges, including those that were dismissed 

as a result of defendant’s acceptance of the plea agreement. We do not retain jurisdiction. 

/s/ Karen M. Fort Hood 

/s/ Mark J. Cavanagh 

/s/ Kirsten Frank Kelly