-1- 

### 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Plaintiff-Appellee, UNPUBLISHED October 20, 2015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: F ORT H OOD , P.J., and C AVANAGH and K. F. K ELLY , JJ.

P ER C URIAM

. Defendant appeals by leave granted 1 the trial court’s order denying his motion for relief from judgment. Defendant was convicted pursuant to a guilty pl ea 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 year s’ imprisonment for the CSC 1 conviction and 10 to 20 years’ imprisonment for the child sexua lly 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, whic h 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 c ourt’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 ran ge 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 People v Roark , unpublished order of the Court of Appeals, entered October 25 , 2013 (Docket No. 316467).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 M ichigan Supreme Court. In lieu of granting leave to appeal, th e Supreme Court remanded the cas e to this Court for consideration as on leave granted. People v Roark , 497 Mich 895; 855 NW2d 743 (2014).-2- Fonville , 291 Mich App at 376. This Cour t reviews constitutional issue s 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 wi thdraw a plea within six months after sentencing, which defendant failed to do. Accordi ngly, defendant could only seek relief by way of a motion for re lief from judgment pursuant to MCR 6.508(D)(3), which provides, in relevant part:

(D) Entitlement to Relief. The defendant has the burden of es tablishing entitlement to the relief reque sted. The court may not grant r elief to the defendant if the motion

* * *

(3) alleges grounds for relief, other than jurisdictional defec ts, 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 i n the prior motion, and

(b) actual prejudice from the al leged irregularities that suppo rt 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 m entally ill, or nolo contendere, the defect in the proceedings was such that it rend ers the plea an involuntary one to a degree that i t would be manifestly unjust to allow the conviction to stand[.]

In sum, defendant must show good cause and actual prejudice. A ctual prejudice may result from an involuntary plea agreement.

Here, defendant demonstrated good cause for failing to raise t his issue in a timely appeal or motion. Good cause can be established by proving ineffectiv e 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 defen dant’s initial appellate counsel failed to comply with the minimum standards for indigent defens e counsel by abandoning defendant’s appeal without withdraw ing from representation, and imposed costs against the attorney. People v Roark , 497 Mich 895; 855 NW2d 743 (2014). After defendant’s appella te counsel abandoned his appeal, defendant filed a motion for reli ef from judgment on his own behalf, which led to the current proceedings. Accordingly, we conclude that defendant has demonstrated good cause for his fa ilure to raise the involuntar y plea issue at an earlier time based on ineffective assistance of counsel.

Defendant has also demonstrated actual prejudice. The Due Pro cess Clause of the Fourteenth Amendment requires th at a guilty plea be voluntary a nd knowing . McCarthy v-3- United States , 394 US 459, 466; 89 S Ct 1166; 22 L Ed 2d 418 (1969). Michig an codified this constitutional mandate in MCR 6.302(A), which states that a tri al court “may not accept a plea of guilty . . . unless it is convinced that the plea is understand ing, voluntary, and accurate.” MCR 6.302(A); People v Brown , 492 Mich 684, 688-689; 822 NW2d 208 (2012). The United State s 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 de fendant must be informed of “the maximum possible prison sentence for the offense and any mandat ory 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 b e knowingly and voluntarily made, the trial court must ensure that the defendant has been i nformed of any condition that represents “a definite, immediat e 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 mon itoring, required pursuant to MCL 750.520n(1), is not only a direct consequence o f a defendant’s guilty plea, but part of the sen tence itself. Cole , 491 Mich at 335-337. Therefore:

[W]hen the governing criminal statute mandates that a trial cou rt sentence a defendant entering the plea that h e or she will be subject to m andatory 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 l ifetime electronic monitoring. And because MCR 6.302 is premised on constitutiona l due-process requirements, a defendant who will be subject to mandatory life time 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 w as defective. Because defendant ple d guilty to criminal sexual co nduct under MCL 750.520b, MCL 750.520n required that he be subject to lifetime electronic mon itoring 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 ple a. While defendant’s compliance with the Sex Offenders Registration Act (“SORA”) was an explici t term of the written plea agreement and defendant indicated at the plea hearing that he u nderstood that he would be subject to SORA’s requirements, this did not establish that def endant 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 ju dgment 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 fleetin g mention of lifetime electronic monitoring after the sentencing proceeding concluded rendered d efendant’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 life time electronic monitoring is entitle d to withdraw his guilty plea. Cole , 491 Mich at 338.-4- Contrary to the prosecutor’s ass ertion on appeal, the fact tha t 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, abs ent 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 a pprised of the “direct consequen ces” 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 reasonab le jurist considering defendant’s claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the same holdi ng reached in Cole was required by the Constitution. People v Maxson , 482 Mich 385, 388-38 9; 759 NW2d 817 (2008). Because Cole ’s holding represented an applic ation of an existing rule, and not the creation of a new rule, it is “applied retroactively even to cases that became final fo r purposes of direct appellate review before the case on which defendant relied for the rule was deci ded.” Carp , 496 Mich at 471-472.

The defect in defendant’s plea proceedings was such that it re ndered 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 sentenc e 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 release d 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 o f the critical information nec essary 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 c ourt fully inform defendant of the direct consequences of his guilty plea. Brown , 492 Mich at 702. Because defendant was not given the require d notice, this case is remanded to the trial court. Pursuant to MCR 6.310(C), defenda nt may elect to allow his sentence to stand or withdraw his plea, “in which case the tria l court must vacate his conviction and sentence. In the latter event, the matter may proceed to t rial.” Brown , 492 Mich at 703.

Defendant also argues that his trial counsel was ineffective f or failure to advise him of the direct consequences of his guilty plea. Based on our dispo sition regarding defendant’s initial argument on appeal, it is unnecessary to review defendant’s ine ffective assistance claim.-5- 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, i ncluding those that were dismissed as a result of defendant’s acceptance of the plea agreement. W e do not retain jurisdiction.

/s/ Karen M. Fort Hood /s/ Mark J. Cavanagh /s/ Kirsten Frank Kelly