47 minute read
PeopleoftheStateofMichiganv.KellyMorgan David Porter
strained reading of the pre-existing court-rule or constitutional doctrine.
BIOGRAPHICAL STATEMENT
DAVIDPORTER
David Porter practices as an appellate specialist at Kienbaum Hardy Viviano Pelton & Forrest, an employment and commercial litigation boutique in Metro Detroit. Before that, David practiced at the Michigan Attorney General’s Office, briefing and arguing dozens of state and federal appeals, including People v Warren. David also served as law clerk to Judge Richard A. Griffin of the U.S. Court of Appeals for the Sixth Circuit and Justice David F. Viviano of the MichiganSupremeCourt.
STATE OF MICHIGAN IN THE SUPREME COURT Appeal from the Michigan Court of Appeals GLEICHER, P.J., and M.J. KELLY and CAMERON, J.J.
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v
KELLY WARREN,
Defendant-Appellant. Supreme Court No. 158065
Court of Appeals No. 333997
Mecosta Circuit Court Nos. 14-8297FH; 15-8431-FH
SUPPLEMENTAL BRIEF OF APPELLEE PEOPLE OF THE STATE OF MICHIGAN
ORAL ARGUMENT REQUESTED
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Dated: June 18, 2019 B. Eric Restuccia Deputy Solicitor General Department of Attorney General
David Porter (P76785) Assistant Attorney General Attorney for the People Plaintiff–Appellee Criminal Appellate Division P.O. Box 30217 Lansing, MI 48909 (517) 335-7650
TABLE OF CONTENTS
Page
Index of Authorities .......................................................................................................ii
Statement of Jurisdiction ............................................................................................vii
Counter-Statement of Questions Presented ..............................................................viii
Court Rule Involved...................................................................................................... ix
Introduction ................................................................................................................... 1
Counter-Statement of Facts and Proceedings .............................................................. 3
Argument ....................................................................................................................... 5
I. Rule 6.302 does not require trial courts to inform defendants about the possibility of consecutive sentences before accepting their guilty pleas........... 5
A. The plain language of Rule 6.302 does not require trial court to inform defendants about the possibility of consecutive sentences......... 6
B. Warren’s contrary argument asks this Court read into the rule language that it has twice rejected.......................................................... 8
II. Due process does not require defendants to know about the possibility of consecutive sentencing in order to enter a knowing guilty plea. ................ 11
A. The possibility of consecutive sentencing is not a “direct consequence” of pleading guilty............................................................. 13
B. The contrary constitutional analysis either misapplies accepted law or relies on a new standard that bears little resemblance to the Supreme Court’s due process jurisprudence................................... 18
Conclusion and Relief Requested................................................................................ 30
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i
INDEX OF AUTHORITIES
Cases
AFT Mich v Michigan, 497 Mich 197 (2015) ................................................................................................. 11
Boykin v Alabama, 395 US 238 (1969) .................................................................................................... 23
Bozeman v State, 686 So. 2d 556 (Ala. Crim. App. 1996) ................................................................... 10
Brady v United States, 397 US 742 (1970) ............................................................................................. 12, 15
Clemmons v United States, 721 F2d 235 (CA 8, 1983)......................................................................................... 14
Cuthrell v Patuxent Institution Director, 475 F2d 1364 (CA 4, 1973)............................................................................... passim
Faulisi v Daggett, 527 F2d 305 (CA 7, 1975)......................................................................................... 14
Haliw v City of Sterling Heights, 471 Mich 700 (2005) ................................................................................................... 6
In re Certified Question from US Court of Appeals for Sixth Circuit, 468 Mich 109 n 5 (2003)........................................................................................... 10
In re Estate of Rasmer, 501 Mich 18 (2017) ................................................................................................... 11
Kercheval v United States, 274 US 220 (1927) .................................................................................................... 12
Lewis v United States, 601 F2d 1100 (CA 9, 1979)....................................................................................... 25
McCarthy v United States, 394 US 459 (1969) .................................................................................................... 12
McGrew v State, 286 SW3d 387 (Tex App, 2008).......................................................................... 13, 14
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Mitschke v State, 129 SW3d 130 (Tex Crim App, 2004) ................................................................ 19, 20
Morrissey v Brewer, 408 US 471 (1972) .................................................................................................... 16
North Carolina v Alford, 400 US 25 (1970) ...................................................................................................... 12
Oregon v Elstad, 470 US 298 (1985) .............................................................................................. 15, 26
Padilla v Kentucky, 559 US 356 (2010) .................................................................................................... 28
Paradiso v United States, 482 F2d 409 (CA 3, 1973)......................................................................................... 14
Patterson v Illinois, 487 US 285 (1988) .................................................................................................... 15
People v Babcock, 469 Mich 247 n 7 (2003)............................................................................................. 6
People v Bennett, 76 Mich App 264 (1977) ............................................................................................. 9
People v Bonner, 49 Mich App 153 (1973) ............................................................................................. 7
People v Cole, 491 Mich 325 (2012)......................................................................................... passim
People v Cummings, 84 Mich App 509 (1978) ............................................................................................. 9
People v Garska, 303 Mich 313 (1942) ................................................................................................. 24
People v Gloster, 499 Mich 199 (2016) ................................................................................................. 11
People v Harden, 434 Mich 196 (1990) ................................................................................................... 7
People v Johnson, 57 Mich App 117 (1974) ............................................................................................. 7
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People v Jones, 459 Mich 902 (1998), order vacated on reconsideration, 459 Mich 959 (1999) ........................................................................................................................ 24
People v Larkins, 59 Mich App 199 (1975) ............................................................................................. 9
People v Peters, 738 P2d 395 (Colo Ct App, 1987) ............................................................................. 10
People v Taylor, 383 Mich 338 (1970)....................................................................................... 8, 27, 28
People v Warren, unpublished order of the Michigan Court of Appeals, entered Nov 1, 2016 (Docket No. 333997) ................................................................................................... 4
People v Williams, 386 Mich 277 (1971)....................................................................................... 8, 27, 28
Rosemond v State, 756 P2d 1180 (Nev, 1988) ........................................................................................ 14
Smith v Doe, 538 US 84 (2003) ...................................................................................................... 21
Smith v O’Grady, 312 US 329 (1941) .................................................................................................... 12
Snyder v Charlotte Pub Sch Dist, Eaton Cty, 421 Mich 517 (1984) ................................................................................................... 5
State v Cutler, 590 P2d 444 (Ariz, 1979).......................................................................................... 25
State v Irish, 394 NW2d 879 (Neb, 1986) ...................................................................................... 14
State v Wesley, 640 P2d 177 (Ariz, 1982).......................................................................................... 14
United States v DeFusco, 949 F2d 114 (CA 4, 1991)......................................................................................... 25
United States v Fentress, 792 F2d 461 (CA 4, 1986)......................................................................................... 14
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United States v Gaskin, 587 F App’x 290 (CA 6, 2014) .................................................................................. 14
United States v Humphrey, 164 F3d 585 (CA 11, 1999)....................................................................................... 14
United States v Hurlich, 293 F3d 1223 (CA 10, 2002)..................................................................................... 14
United States v Kikuyama, 109 F3d 536 (CA 9, 1997)................................................................................... 13, 14
United States v Neely, 38 F.3d 458 (CA 9, 1994).......................................................................................... 14
United States v Ocasio-Cancel, 727 F3d 85 (CA 1, 2013)........................................................................................... 14
United States v Rubalcaba, 811 F2d 491 (CA 9, 1987)......................................................................................... 14
United States v Ruiz, 536 US 622 (2002) ................................................................................. 15, 16, 18, 26
United States v Saldana, 505 F2d 628 (CA 5, 1974)......................................................................................... 14
West v State, 480 NE2d 221 (Ind, 1985) ........................................................................................ 10
Wilson v McGinnis, 413 F3d 196 (CA 2, 2005)......................................................................................... 14
Statutes
MCL 750.520b.............................................................................................................. 22
MCL 768.7b........................................................................................................ 3, 16, 17
MCL 769.1...................................................................................................................... 7
MCL 769.8...................................................................................................................... 7
Other Authorities
5 LaFave, Criminal Procedure, § 21.4(d) (4th ed) .................................... 13, 17, 20, 29
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Criminal Procedure – New Standards and Procedures for Accepting Guilty
Pleas, 22 Wayne L Rev 1463 (1976) .......................................................................... 8
FR Crim P 11 advisory committee note (1975)........................................................... 16
Ignorance Is Effectively Bliss: Collateral Consequences, Silence, and
Misinformation in the Guilty-Plea Process, 95 Iowa L. Rev. 119 (2009)................ 13
In the Matter of the Amendment of GCR 1963, 785, unpublished order of the
Michigan Supreme Court, entered May 15, 1972..................................................... 9
Justice Robert P Young, Jr,
A Judicial Traditionalist Confronts Justice Brennan’s School of Judicial
Philosophy, 33 Okla City U L Rev 263 (2008)......................................................... 26
Proposed amendment to GCR 1963, 785, unpublished order of the Michigan
Supreme Court, entered Nov 4, 1981 ...................................................................... 10
Roberts, The mythical divide between collateral and direct consequences of criminal convictions: Involuntary commitment of “sexually violent predators,” 93 Minn LR 670 (2008) ......................................................................... 19
Section 1.4(c)(i) of the ABA Standards Relating to Pleas of Guilty............................. 8
Rules
Ga Uniform Superior Court Rule 33.8........................................................................ 10
IL CS S Ct. Rule 402.................................................................................................... 10
MCR 6.302............................................................................................................ passim
MCR 6.425.................................................................................................................... 17
Constitutional Provisions
Mich Const 1963, art 1, § 17........................................................................................ 11
US Const, Am XIV ....................................................................................................... 11
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STATEMENT OF JURISDICTION
The People agree that this Court has jurisdiction. See MCR 7.303(B)(1).
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COUNTER-STATEMENT OF QUESTIONS PRESENTED
1. Does MCR 6.302 require trial courts to inform defendants about the possibility of discretionary consecutive sentences even though this Court has twice rejected language that would expressly require it?
Appellant’s answer: Yes.
Appellee’s answer: No.
Trial court’s answer: No.
Court of Appeals’ answer: No.
2. Does the constitutional baseline of information necessary to make an informed guilty-plea decision include information about the possibility of consecutive sentence—a prospect that the trial court may not be aware of at the time of the plea and which is uncertain to occur in the future?
Appellant’s answer: Yes.
Appellee’s answer: No.
Trial court’s answer: No.
Court of Appeals’ answer: No.
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COURT RULE INVOLVED
Michigan’s court rule on guilty pleas, Rule 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:
(2) the maximum possible prison sentence for the offense and any mandatory minimum sentence required by law, including a requirement for mandatory lifetime electronic monitoring under MCL 750.520b or 750.520c[.] [MCR 6.302.]
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INTRODUCTION
This is a case about process. On the surface, it is about the process by which
trial courts accept guilty pleas consistent with our court rules and constitutions.
More specifically, whether that process must include advice by the trial court about
the possibility of discretionary consecutive sentences.
But a second and perhaps more significant question of process lurks just
below the surface. It deals with the process by which this Court regulates the
administration of its criminal justice system. This Court can, of course, decide legal
questions presented to it through the adversarial process. But its constitutional
authority does not end there. This Court has the authority to promulgate and
amend Michigan’s court rules, a power that it has drawn on many times to resolve
perceived constitutional concerns in the guilty-plea setting.
This underlying question of process is especially pertinent here because,
while everyone may agree that defendant should have information about possible
consecutive sentences, neither Michigan’s court rules nor due process require it.
The plain language of the court rule governing the acceptance of guilty pleas does
not cover it. In fact, this Court has twice considered including language in its court
rule requiring advice about consecutive sentences, but it declined both times.
Nor does due process require defendants have this information to enter a
constitutionally compliant plea. Due process requires only the information
necessary to make an informed choice among available options. Information about
potential and indefinite contingencies do not make the defendant any more
informed about the consequences of his plea. The contrary analysis offered by
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defendant and the dissenting judge below threaten to convert due process into a
litmus test for best practices.
There is no need to stretch the court rule or due process because there is
another process tailored-made for this circumstance: the rule-making process. If
this Court has identified a potential blind spot in the plea-taking process, it can
study the issue through the rule-making process and rely on the collective
perspective of the members of the bench and bar who can advise this Court on both
the benefits and the consequences of requiring trial courts to give this kind of
information as part of the plea colloquy.
And if this Court concludes that a constitutional solution is necessary, the
better place to find it is in the Sixth Amendment and the right to effective
assistance of counsel. Counsel, after all, is the constitutional actor best positioned
to ensure that defendants have all the information they need to make a fully
informed decision based on their individual circumstances—including the possibility
of consecutive sentencing.
Because neither the court rule (as presently written) nor due process require
a defendant be informed about the possibility of consecutive sentencing, the People
ask this Court to deny defendant’s application for leave to appeal and, if it believes
it is warranted, address this issue using its constitutional rule-making authority.
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COUNTER-STATEMENT OF FACTS AND PROCEEDINGS
In late 2014, Kelly Warren was charged with operating a motor vehicle while
intoxicated, third offense, and operating with a suspended license, second offense.
(Joint Appendix [JA], at 43a.) Sixth months later, while he was free on bond
awaiting trial, Warren picked up another set of the same charges. (JA, at 49a.)
Warren agreed to plead guilty to both drunk-driving charges in exchange for
the dismissal of the other charges. (JA, at 3a.) At Warren’s plea hearing, the trial
court informed him of the maximum sentence for each offense (five years), but it did
not explicitly mention that it had the discretionary authority to stack the sentences.
(Id.) After determining that Warren was voluntarily pleading guilty and eliciting a
factual basis for both charges, the trial court accepted Warren’s pleas. (JA, at 3a–
10a.)
In the lead-up to Warren’s sentencing, the probation department prepared a
presentence investigation report. In it, the probation department informed the trial
court that it had the discretionary authority to impose consecutive sentences
because Warren committed the second offense while on bond for the first. (PSIR, at
2.) See MCL 768.7b. Following the probation department’s recommendation, the
trial court exercised its discretion in favor of consecutive sentences of 24-to-60
months, citing Warren’s lengthy criminal history and proclivity for alcohol-related
offenses documented in his presentence investigation report. (JA, at 19a–21a.)
Several months later, with the help of new counsel, Warren changed his
mind. He moved to withdraw his plea, arguing that the plea-taking process was
constitutionally defective because he was not specifically advised that the trial court
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had the discretionary authority to impose consecutive sentences. (See JA, at 28a.)
The trial court denied the motion (JA, at 29a), and the Court of Appeals denied the
ensuing application for leave to appeal. People v Warren, unpublished order of the
Michigan Court of Appeals, entered Nov 1, 2016 (Docket No. 333997). On appeal
from that decision, this Court remanded the case for consideration as on leave
granted. (JA, at 30a.)
The Court of Appeals, in a split decision, rejected Warren’s claim that the
trial court had a duty to inform him of the possibility of consecutive sentencing
before accepting his plea. People v Warren, unpublished opinion per curiam of the
Court of Appeals, issued May 17, 2018 (Docket No. 333997), unpub op at 1; (see also
JA, at 31a.) The majority (M.J. KELLY and CAMERON, J.J.) held that the plain
language of Rule 6.302 did not require advice about the possibility of discretionary
consecutive sentencing. (JA, at 34a–35a.) The majority also concluded that due
process did not require advice about discretionary consecutive sentencing because it
was not a “direct consequence” of pleading guilty. (JA, at 35a.)
One judge (GLEICHER, J.) dissented, contending that both Rule 6.302 and due
process required trial courts to inform defendants about the possibility of
consecutive sentences because, like habitual offender enhancements, consecutive
sentences affect a defendant’s “true potential maximum sentence.” (JA, at 39a–
40a.)
Warren appealed, and this Court ordered argument on the application. It
asked the parties to file supplemental briefs on “whether, when a defendant’s plea
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of guilty or no contest will subject him to the court’s discretion to impose
consecutive sentences, the court must advise the defendant of that possibility before
the court may accept the plea,” directing the parties’ attention to the Due Process
Clauses of the Michigan and United States Constitutions and Michigan’s court rule
on acceptance of guilty pleas, Rule 6.302. (JA, at 42a.) Consistent with this Court’s
usual approach of avoiding constitutional questions if possible, see Snyder v
Charlotte Pub Sch Dist, Eaton Cty, 421 Mich 517, 533 (1984), the People begin with
the court rule.
ARGUMENT
I. Rule 6.302 does not require trial courts to inform defendants about the possibility of consecutive sentences before accepting their guilty pleas.
Rule 6.302 governs the procedure by which a trial court may accept a
criminal defendant’s plea of guilty or nolo contendere. As it presently stands (and
as it stood at the time Warren pleaded guilty), it provides that “[t]he court may not
accept a plea of guilty or nolo contendere unless it is convinced that the plea is
understanding, voluntary, and accurate”—three defining criteria of a
constitutionally valid guilty plea. MCR 6.302(A). The subrules that follow, Rule
6.302(B) through (D), prescribe detailed requirements for satisfying each of those
three constitutional requirements.
Rule 6.302(B) sets out the requirements for establishing that a plea is
understanding. Relevant here, the Rule requires courts to advise defendants of: REC EI VE D b y M SC 6/18/2019 3:03:01 PM
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the maximum possible prison sentence for the offense and any mandatory minimum sentence required by law, including a requirement for mandatory lifetime electronic monitoring under MCL 750.520b or 750.520c[.] [MCR 6.302(B)(2) (emphasis added).]
The question is whether this provision, and the emphasized language in particular,
requires the trial court to inform a defendant about the possibility of discretionary
consecutive sentences. That question is answered first and foremost by the plain
language, followed by some informative history that all but settles the matter.
A. The plain language of Rule 6.302 does not require trial court to inform defendants about the possibility of consecutive sentences.
First things first: the plain language. See Haliw v City of Sterling Heights,
471 Mich 700, 705 (2005) (“When called upon to interpret and apply a court rule, . . .
this Court begins with the language of the court rule.”).
Two features of the text stand out. First, the court rule refers not just to any
“maximum possible prison sentence,” but to “the maximum possible prison sentence
for the offense.” MCR 6.302(B)(2) (emphasis added). The rule, in other words, is
offense-specific, referring to the maximum sentence for each offense to which the
defendant is pleading guilty. Second, the phrase “maximum possible prison
sentence” is a variation on a term well known in Michigan sentencing law,
“maximum sentence,” that refers to the maximum amount of time the defendant
could possibly serve in prison, as defined by the statute of offense. See People v
Babcock, 469 Mich 247, 256 n 7 (2003). Taking these textual features together,
Rule 6.302(B)(2) requires trial courts to inform defendants about the statutory
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maximum sentence for each offense to which he is pleading guilty—precisely what
happened here. (See JA, at 3a.)
Warren offers a different reading. He contends that the rule refers to the
aggregate or effective sentence that a defendant must serve as a result of multiple
offenses. (Def’s Supp Br, at 5.) That reading not only ignores the textual clues cited
above, it is out of sync with Michigan sentencing law more generally. Defendants in
Michigan do not serve one sentence for every case file (or in this case, two files).
They serve a separate sentence for every offense of conviction. See MCL 769.1(1);
MCL 769.8(1). (JA, at 24a, 26a.) Interpreting “maximum possible prison sentence”
as Warren does would introduce a novelty into Michigan law. There is no reason to
endorse such an inventive reading when a much more sensible reading is readily
available.
Warren’s reading also wrongly assumes that consecutive sentencing increases
a defendant’s “maximum sentence,” as that term is known in Michigan law. It
doesn’t. The Court of Appeals in People v Bonner, put it best: “The effect of
consecutive sentencing is not to increase the maximum punishment prescribed for
the second offense but merely postpones the time at which the second sentence will
commence.” 49 Mich App 153, 160 (1973); see also People v Johnson, 57 Mich App
117, 120 (1974). This Court, too, has recognized the same: “The essence of
consecutive sentencing is that two or more sentences, each not exceeding the
maximum punishment allowable by law, are placed end to end.” People v Harden,
434 Mich 196, 202 (1990) (emphasis added).
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B. Warren’s contrary argument asks this Court read into the rule language that it has twice rejected.
If there is any doubt about the correct interpretation of Rule 6.302(B)(2), a
little history (and case law) should dissolve it. The history picks up in the early
1970s, when this Court was in the midst of a nearly decade-long process of revising
its guilty-plea rule. See Note, Criminal Procedure – New Standards and Procedures
for Accepting Guilty Pleas, 22 Wayne L Rev 1463, 1470–1476 (1976) (recounting the
process). By 1971, with mounting confusion around guilty pleas despite “dozens of
individual cases” aimed at bringing clarity to the area, People v Taylor, 383 Mich
338, 354 (1970), this Court concluded that the best way to tackle the problem was
“the development of an effective rule” through the rule-making process, People v
Williams, 386 Mich 277, 293 (1971).
To that end, this Court created the Supreme Court Guilty Plea Standards
Committee and offered Suggested Guilty Plea Guidelines as a starting point for the
committee’s work. Id. at 296–304. Relevant here, this Court suggested that the
new rule require the trial court to “personally inform defendant of the maximum
sentence prescribed by law, and, if there is a mandatory minimum sentence, the
minimum sentence prescribed by law . . . [.]” Id. at 303. In a footnote attached to
that suggested rule, this Court drew the committee’s attention to Section 1.4(c)(i) of
the ABA Standards Relating to Pleas of Guilty, which provided that the trial court
must inform the defendant “of the maximum possible sentence on the charge
including that possible from consecutive sentences[.]” Id. at 303 n 9 (emphasis
added).
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The committee finished its work several months later. Relevant here, the
proposed rule—which this Court later adopted without change—required the trial
court to inform the defendant of “the maximum sentence and the mandatory
minimum sentence, if any, for the offense to which the plea is offered.” In the
Matter of the Amendment of GCR 1963, 785, unpublished order of the Michigan
Supreme Court, entered May 15, 1972, p 3 (publishing proposal for public comment)
(Exhibit 1 to People’s Supp Br); see also 389 Mich lv (promulgating revised court
rule). Missing from the committee’s proposal and this Court’s final rule was the
ABA’s consecutive sentence language that this Court highlighted for the committee.
The absence did not go unnoticed. In People v Larkins, the Court of Appeals
was confronted with whether the new court rule required trial courts to advise
defendants about possible consecutive sentencing. 59 Mich App 199, 200 (1975).
The court observed that “[w]hile this rule was in the process of development the
Supreme Court considered and rejected language in the ABA Standards Relating to
Pleas of Guilty which required the court to inform the defendant of the possible
effect on the maximum sentence resulting from the imposition of consecutive
sentences.” Id. at 201. Larkins therefore rejected the defendant’s claim,
“declin[ing] . . . to add by judicial construction what the Supreme Court omitted in
drafting.” Id. at 202; see also People v Bennett, 76 Mich App 264, 267 (1977)
(following Larkins and stating that “such a requirement must come from the
Supreme Court either by way of amendment to GCR 1963, 885.7, or by case law”);
People v Cummings, 84 Mich App 509, 514 (1978).
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Several years later, this Court itself acknowledged that Michigan’s guilty-
plea rule did not require advice about possible consecutive sentencing. On
November 4, 1981, this Court issued a proposed amendment to GCR 785 to require
trial courts inform defendants of “the maximum possible prison sentence for the
offense, including that possible from consecutive sentences[.]” Proposed amendment
to GCR 1963, 785, unpublished order of the Michigan Supreme Court, entered Nov
4, 1981, p 1 (emphasis in original to denote proposed language) (Exhibit 2 to
People’s Supp Br). The proposal went nowhere. The reasons why are unclear,1 but
what is clear is that this Court never adopted the proposed additional language.
This bit of history, which is appropriate to consider if this Court has any
reservations about the correct interpretation of the text, puts Warren’s textual
argument in a whole new light.2 Cf. In re Certified Question from US Court of
Appeals for Sixth Circuit, 468 Mich 109, 115 n 5 (2003) (“[L]egitimate legislative
history include[s] . . . actions of the Legislature in considering various alternatives
1 Inquiries with this Court’s Administrative Counsel’s Office and the State of Michigan Archives indicate that the records pertaining this proposed rule change (ADM No. 498, aka ADM No. 81-48) are likely located in this Court’s off-site storage location in box RC# 671040.
2 It also drives home why so many of the cases that Warren claims support his position, in fact, support the State’s. Five of the ten states Warren cites have court rules that, unlike Michigan’s, explicitly require information about the possibility of consecutive sentences. See People v Peters, 738 P2d 395 (Colo Ct App, 1987) (observing that state court rule explicitly requires advice about possibility of consecutive sentencing); West v State, 480 NE2d 221 (Ind, 1985) (same); Bozeman v State, 686 So 2d 556, 558 (Ala Crim App, 1996) (same); IL CS S Ct Rule 402(a)(2) (explicitly requiring advice about consecutive sentencing); Ga Uniform Superior Court Rule 33.8(C)(3) (same). These prove the People’s point: this Court could have written a court rule that required this information, but it chose not to—twice.
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in language in statutory provisions before settling on the language actually
enacted.”). Warren’s argument essentially invites this Court to read into Rule
6.302(B)(2) language that it has twice declined to write in. The refrain heard often
in the statutory construction context provides the answer to that invitation: “[T]his
Court [as decision-maker] will not read words into a [court rule] that [this Court as
rule-maker] has excluded.” People v Gloster, 499 Mich 199, 201 (2016).
In light of this history, and the plain-language interpretation set out above
showing that “maximum possible prison sentence” refers only to the statutory
maximum for each individual offense, this Court should hold that Rule 6.302(B)(2)
does not require trial courts to inform defendants about the possibility of
consecutive sentencing (that is, if it does not deny leave to appeal).
II. Due process does not require defendants to know about the possibility of consecutive sentencing in order to enter a knowing guilty plea.
Both the Michigan Constitution and the United States Constitution preclude
the government from depriving a person of life, liberty, or property without due
process of law. US Const, Am XIV; Const 1963, art 1, § 17.3 Due process requires
that a criminal defendant pleading guilty do so (1) competently, (2) voluntarily, (3)
3 Although Michigan’s Due Process Clause “may, in particular circumstances, afford protections greater than or distinct from” its federal counterpart, AFT Mich v Michigan, 497 Mich 197, 245 (2015), Warren has not argued that it does in this setting. Thus, this Court should assume for purposes of this case that the protections are coextensive. See In re Estate of Rasmer, 501 Mich 18, 43 (2017) (stating that proponent of constitutional error did not “urge separate interpretations, so we will not seek to determine otherwise” (quotation marks omitted)).
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knowingly, and (4) with the benefit of effective assistance of counsel. See, e.g.,
Kercheval v United States, 274 US 220, 223 (1927) (“Out of just consideration for
persons accused of crime, courts are careful that a plea of guilty shall not be
accepted unless made voluntarily after proper advice and with full understanding of
the consequences.”).
At issue here is the third requirement—that the defendant enter his plea
knowingly (or intelligently). To satisfy this requirement, the trial court must give
the defendant sufficient information to ensure that his decision is an “intelligent
choice among the alternative courses of action open to [him].” North Carolina v
Alford, 400 US 25, 31 (1970). That means, first, that the defendant must have some
understanding of what he is giving up. For instance, the defendant must
understand the constitutional rights that would have been guaranteed to him had
he proceeded to trial. McCarthy v United States, 394 US 459, 466 (1969). Second,
the defendant must also have some understanding of the option is he choosing. The
defendant must be aware of “the true nature of the charge against him,” Smith v
O’Grady, 312 US 329, 334 (1941), as well as “the direct consequences” of entering a
guilty plea, Brady v United States, 397 US 742, 755 (1970). The question here,
then, is whether the possibility of discretionary consecutive sentences is a “direct
consequence” of entering a guilty plea.
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A. The possibility of consecutive sentencing is not a “direct consequence” of pleading guilty.
The Supreme Court never elaborated on what it means to be a “direct
consequence” of a guilty plea, leaving lower courts to add meat to the bare-bones
standard. The prevailing standard used by most courts, including this one, asks
“whether the result represents a definite, immediate and largely automatic effect on
the range of the defendant’s punishment.” Cuthrell v Patuxent Institution
Director, 475 F2d 1364, 1366 (CA 4, 1973); see also People v Cole, 491 Mich 325,
333–334 (2012); Jenny Roberts, Ignorance Is Effectively Bliss: Collateral
Consequences, Silence, and Misinformation in the Guilty-Plea Process, 95 Iowa L.
Rev. 119, 131 (2009) (“Almost all jurisdictions follow the collateral-consequences
rule.”); 5 LaFave, Criminal Procedure, § 21.4(d) (4th ed) (describing it as
“conventional wisdom”). Those consequences that do not meet this definition are
considered “collateral” and are not required to be part of the plea colloquy.
Here, the constitutional analysis under the traditional direct/collateral
framework is relatively straightforward: The discretionary authority to impose
consecutive sentences does not represent a definite, immediate, or automatic effect
because it depends on the trial court’s later exercise of discretion. United States v
Kikuyama, 109 F3d 536, 537 (CA 9, 1997) (stating that the constitutional analysis
“turns on whether the district court had discretion to impose a consecutive
sentence.”); McGrew v State, 286 SW3d 387, 391 (Tex App, 2008) (“A consequence
has been defined as collateral, rather than direct, where it lies within the discretion
of the court whether to impose it[.]” (quotation marks omitted)).
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At the time a defendant pleads guilty, it is anyone’s guess (including the trial
court’s) whether the court will exercise its discretion to impose consecutive
sentences. That exercise of discretion depends on facts developed after the
defendant pleads guilty that are not known with any certainty until sentencing.
Because discretionary consecutive sentencing is an unfixed, indeterminate
consequence that may or may not come to pass, under the controlling
direct/collateral dichotomy endorsed by this Court in Cole, it is not a “direct
consequence” that a defendant must be told before pleading guilty.
That, at any rate, is what appears to be the universal wisdom of the federal
courts of appeals,4 as well as a number of state courts.5 The rationale behind these
cases and the consensus position of drawing the constitutional line at definite and
automatic consequences is sound.
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4 See, e.g., United States v Ocasio-Cancel, 727 F3d 85, 90 (CA 1, 2013); Wilson v McGinnis, 413 F3d 196 (CA 2, 2005); Paradiso v United States, 482 F2d 409, 415 (CA 3, 1973); United States v Fentress, 792 F2d 461, 465 (CA 4, 1986); United States v Saldana, 505 F2d 628, 629 (CA 5, 1974) (per curiam); United States v Gaskin, 587 F App’x 290, 297 (CA 6, 2014); Faulisi v Daggett, 527 F2d 305, 309 (CA 7, 1975); Clemmons v United States, 721 F2d 235, 238 (CA 8, 1983); United States v Rubalcaba, 811 F2d 491, 494 (CA 9, 1987); United States v Hurlich, 293 F3d 1223, 1231 (CA 10, 2002); United States v Humphrey, 164 F3d 585, 587 (CA 11, 1999).
To the extent there is contrary federal authority, it involves mandatory consecutive sentencing. See United States v Neely, 38 F3d 458, 460 (CA 9, 1994) (defendant must be told that his federal sentence must run consecutively to state sentence); but see Kikuyama, 109 F3d at 538 n 3 (distinguishing Neely as involving mandatory consecutive sentencings).
5 See, e.g., State v Wesley, 640 P2d 177, 179 (Ariz, 1982); State v Irish, 394 NW2d 879, 883 (Neb, 1986); Rosemond v State, 756 P2d 1180, 1181 (Nev, 1988); McGrew, 286 SW3d at 391.
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Due process, after all, is concerned with ensuring that defendants have the
basic information necessary to make an intelligent choice, and no more. Patterson v
Illinois, 487 US 285, 294 (1988) (holding that waiver is knowing upon “the State’s
showing that the information it provided to him satisfied the constitutional
minimum”). “Of course, the more information the defendant has, the more aware he
is of the likely consequences of a plea, waiver, or decision, and the wiser that
decision will likely be.” United States v Ruiz, 536 US 622, 629 (2002). But the
Supreme Court “has never embraced the theory that a defendant’s ignorance of the
full consequences of his decisions vitiates their voluntariness.” Oregon v Elstad, 470
US 298, 316 (1985); Ruiz, 536 US at 629 (holding that due process does not require
“complete knowledge of the relevant circumstances”).
In ensuring that defendants have the minimum information necessary for an
informed decision between available alternatives, the Constitution draws the line at
indefinite and unknowable consequences because, by their very nature, they do not
meaningfully enhance a defendant’s ability to make an intelligent decision. Indeed,
the Supreme Court has consistently rejected the view that a guilty plea is invalid if
the defendant did not know a fact that later proved to be consequential, including
misapprehension of “the likely penalties.” See Brady, 397 US at 757; Ruiz, 536 US
at 630–631 (citing cases). Having knowledge about those consequences, like the
possibility of discretionary consecutive sentencing, may provide the defendant with
“more information” and perhaps make the decision “wiser,” Ruiz, 536 US at 629, but
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they are not concrete information about what will happen as a result of pleading
guilty—only what might happen.
And, like everything else in the due process arena, the constitutional calculus
is a balancing act. See Morrissey v Brewer, 408 US 471, 481 (1972) (“[D]ue process
is flexible and calls for such procedural protections as the particular situation
demands.”). In the guilty-plea context, the Supreme Court has been careful not to
impose due process requirements at the cost of unreasonable burdens on the
administration of justice. See Ruiz, 536 US at 632 (rejecting the proposition that
due process requires defendants know the government’s impeachment evidence
because it would “demand[ ] so radical a change in the criminal justice process in
order to achieve so comparatively small a constitutional benefit.”).
Trial courts are called on to inform defendants about determinate, known
consequences like the nature of the charges and the maximum sentence for each
offense because that information is easily ascertainable and known to the trial
court. See, e.g., FR Crim P 11 advisory committee note (1975) (“This information is
usually readily ascertainable from the face of the statute defining the crime, and
thus it is feasible for the judge to know specifically what to tell the defendant.”).
That cannot be said for discretionary consecutive sentencing under MCL 768.7b,
which authorizes consecutive sentencing for a second offense that a defendant
commits while out on bond for a pending offense. If that second offense occurs in a
different county, or the first case has not progressed far enough to be on the trial
court’s radar, the trial court may not know that consecutive sentencing is a
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possibility. Cf. 5 LaFave, Criminal Procedure, § 21.4(d) (4th ed) (observing that a
common thread among the cases is that “it is simply impracticable for a trial judge
to advise the defendant of all possible consequences, especially because often the
judge will not be aware at the time of the plea of the special circumstances which
would make some of those consequences possible”).
This Court has recognized as much in its role as rule-maker. This Court has
promulgated only one court rule requiring the provision of information regarding
the possibility of consecutive sentences. It is not in Rule 6.302, but Rule 6.425—a
court rule dedicated to the trial court receiving information, not giving it. See MCR
6.425(A)(1) (requiring the probation officer to “report” certain information “to the
court”). More specifically, it requires the probation department to include in its
presentence investigation report “a statement prepared by the prosecutor on the
applicability of any consecutive sentencing provision.” MCR 6.425(A)(1)(i). With
this rule, this Court tacitly recognized the practical reality that trial courts are not
well positioned at the time of a guilty plea to know whether consecutive sentencing
under MCL 768.7b is available.
Requiring as a matter of due process that trial courts determine before every
guilty plea hearing whether discretionary consecutive sentencing is possible would
impose a significant burden on trial courts and prosecutor offices, a burden that, in
many cases, would not produce a meaningful benefit because information about
discretionary sentencing may not be reliably available at such an early stage in the
proceedings. The kind of dramatic change called for by Warren’s argument should
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give this Court considerable pause before it solidifies it as a permanent fixture of
the plea colloquy. See Ruiz, 536 US at 632.
In sum, due process represents the constitutional floor. It requires the bare
minimum of information that a defendant must have to make an informed choice:
(1) the constitutional rights being waived, (2) the nature of the offenses at issue,
and (3) the direct consequences of the plea. Under the prevailing definition, direct
consequences do not include those things that are merely a “possibility” that
“might” happen in the future. Cuthrell, 475 F2d at 1366. Because the discretionary
consecutive sentencing at issue here is merely a “possibility” that only “might”
happen in the future, it is not a definite or largely automatic effect of pleading
guilty. The Constitution does not require that it be told to the defendant before he
pleads guilty.
B. The contrary constitutional analysis either misapplies accepted law or relies on a new standard that bears little resemblance to the Supreme Court’s due process jurisprudence.
Warren’s Constitutional Analysis. Warren largely avoids analyzing the issue
under the prevailing framework, arguing instead that discretionary consecutive
sentencing is a direct consequence because it is “punitive.” (Def’s Supp Br, at 7–8.)
In support, he cites this Court’s decision in Cole, which, in the process of holding
that mandatory lifetime electronic monitoring is a “direct consequence,” found that
it constituted “punishment” using the “intent-effects” test. 491 Mich at 334–336.
Warren’s argument is based on the (incorrect) premise that the punishment inquiry
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serves as an independent, alternative framework for answering the due process
question in this context. (Cf. Def’s Supp Br, at 7.) Correcting the premise reveals
that Warren’s reading of Cole (and his reliance on it) is misplaced.
Start with the premise. It is true, as this Court observed in Cole, that the
basic direct/collateral inquiry applied above is not the only inquiry courts use to
decide whether a consequence must be part of the guilty plea colloquy. 491 Mich at
333–334, citing Jenny Roberts, The mythical divide between collateral and direct
consequences of criminal convictions: Involuntary commitment of “ sexually violent
predators,” 93 Minn LR 670, 689–693 (2008). But a close reading of the cases
applying those different tests reveals that they are not alternative, stand-alone
inquiries courts use to conclude that due process requires certain information.
Rather, they are additional inquiries that courts use to conclude that “definite,
immediate, and largely automatic” consequences are nonetheless not “direct
consequences” and, thus, need not be part of the colloquy.
The leading case involving the punishment inquiry that Warren asks this
Court to apply, Mitschke v State, 129 SW3d 130 (Tex Crim App, 2004), is a good
example of the analysis in action. In that case, the court found that mandatory sex
offender registration was a definite and automatic consequence of a guilty plea. Id.
at 135. Under the basic direct/collateral inquiry, that would end the inquiry and
due process would require trial courts to provide that information. But, the court
added a caveat: “Even if the consequence is direct,” Mitschke added, “imposition of it
without admonishment might still be justified as remedial and civil rather than
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punitive.” Id. Mitschke went on to hold that, because sex offender registration was
not punitive, the failure to advise about it did not violate due process. Id.
Thus, the punishment inquiry, properly understood, is not a sufficient basis
to find that something is direct consequence that trial courts must advise
defendants about before pleading guilty. See also 5 LaFave, Criminal Procedure,
§ 21.4(d) (4th ed.) (“Sometimes, however, the characterization of the impediment as
other than ‘punishment,’ no matter how certain it was as a consequence of
the guilty plea, is deemed conclusive.”). Stated another way, the fact that a
consequence is punitive is necessary, but not sufficient, for finding that due process
requires trial courts to provide advice about it. Mitschke, 129 SW3d at 135; see also
id. at 136–137 (KELLER, P.J., concurring) (synthesizing the court’s analysis into a
two-step inquiry: Is it punitive? If so, is it definite and automatic?).
Cole applied the “punishment” inquiry in precisely this way, albeit to a
different end than Mitschke. There, the question was whether mandatory lifetime
electronic monitoring was a direct consequence of a guilty plea. Cole, 491 Mich at
333. This Court stated that “the prevailing distinction [between direct and
collateral consequences] relied on by a majority of courts ‘turns on whether the
result represents a definite, immediate and largely automatic effect on the range of
the defendant’s punishment.’ ” Id. at 334, quoting Cuthrell, 475 F2d at 1366.
The decisive issue in Cole was not whether lifetime electronic monitoring was
“definite, immediate and largely automatic”—the usual the area of disagreement in
these cases. See e.g., id. at 333–334. Rather, the critical issue was whether it was
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“punishment”—hence, the application of the intent-effects test. See id. at 334
(citing the intent-effects test from Smith v Doe, 538 US 84, 92 (2003) as the
framework for “determining whether a statute imposes punishment or is
nonpunitive”). Applying that test, Cole concluded that lifetime electronic
monitoring was punishment because the Legislature intended it to be. Id. at 335–
336.
But that was not the end of the due process analysis. This Court took one
additional step, albeit a short one, to reach its conclusion. Implicitly relying on its
earlier finding that lifetime electronic monitoring is mandatory, see id. at 335–336
(quoting statute’s mandatory language), this Court said, “[T]he sentence of
mandatory lifetime electronic monitoring constitutes a result of the plea that has ‘a
definite, immediate and largely automatic effect on the range of the defendant’s
punishment.’ ” Cole, 491 Mich at 337, quoting Cuthrell, 475 F2d at 1366.
Thus, Cole’s holding was the product of two distinct findings: (1) it was
“punishment,” and (2) it was “definite, immediate and largely automatic.” The
second finding was just as crucial to its holding as the first, as evidenced by Cole’s
later statements that “the defendant must be aware of the immediate consequences
that will flow directly from his or her decision” and that “when the governing
criminal statute mandates that a trial court sentence a defendant to lifetime
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electronic monitoring, due process requires the trial court to inform the defendant”
of that fact. Id. 6
In Cole, the mandatory nature of lifetime electronic monitoring, coupled with
the fact that the consequence qualified as punishment, added up to the definition of
“direct consequence”: “a [1] definite, immediate and largely automatic effect on the
range of [2] the defendant’s punishment.’ ” Id., quoting Cuthrell, 475 F2d at 1366.
Here, Warren is missing that crucial first variable of the equation. Without
it, he cannot say, as he does in his brief, that the consecutive sentencing is “part of
the sentence itself.” (Def’s Supp Br, at 7.) Cole was able to say that only because
the consequence there was punitive and mandatory. The same is not true here. At
the time of the plea hearing, it was entirely unclear whether consecutive sentences
would be “part of the sentence.” In that uncertain and indefinite posture, the trial
court is not constitutionally required to advise the defendant about a possible
consequence that does not automatically flow from pleading guilty.
Amicus CDAM’s Constitutional Analysis. In addition to echoing his Cole
argument, Warren’s supporting amicus makes an additional point that warrants a
brief response. CDAM suggests that the default sentencing posture—that is,
6 Warren’s supporting amicus overlooks this important facet of Cole when it asserts that “According to the Cole decision, when the legislature intends punishment, includes the additional punishment in the penalty section of the statute and directs or authorizes the additional punishment as part of the sentence, the punishment (in that case lifetime electronic monitoring) becomes a direct consequence of the plea.” (CDAM Br, at 3 (emphasis added).) The Legislature didn’t just “direct or authorize ” the punishment in Cole. It mandated it. See MCL 750.520b(2)(d) (“[T]he court shall sentence the defendant to lifetime electronic monitoring . . . .”).
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whether concurrent or consecutive sentencing is the norm—is relevant to the
constitutional analysis. (CDAM Br, at 8.) CDAM contends that the bulk of
authority rejecting Warren’s argument can be explained by the fact that, unlike
Michigan, there is no default in favor of concurrent sentencing in those
jurisdictions. (Id. at 8–11.) Because Michigan has a presumption in favor of
concurrent sentencing, CDAM says, “there can be no implicit understanding that
consecutive sentencing rests within the trial court’s sentencing discretion when
sentencing for multiple convictions.” (Id. at 11.)
First, there is no support in the Supreme Court’s guilty-plea due process
jurisprudence for the proposition that the components of a “knowing” guilty plea
depend on such vagaries as the default sentencing position of the trial court. In
fact, due process assumes that the accused does not know the pertinent information
unless he is informed by the trial court on the record. See Boykin v Alabama, 395
US 238, 243 (1969) (“We cannot presume a waiver of these three important federal
rights from a silent record.”); id. at 244 (agreeing “there was reversible error
because the record does not disclose that the defendant voluntarily and
understandingly entered his pleas of guilty” (quotation marks omitted)). Thus, if
information about the possibility of consecutive sentencing were a required
component of a knowing guilty plea, the “implicit” understanding defendants have
from the court’s unspoken practice would not—indeed, could not—validate the plea
colloquy under the Supreme Court’s due process jurisprudence.
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But assume the Constitution tolerates imputing knowledge to the accused.
In that case, CDAM’s argument is self-defeating. CDAM contends that defendants
in Michigan assume they are facing concurrent sentencing unless they are told
otherwise. (CDAM Br, at 11–12.) The quiet premise there is the fiction that
defendants are presumed to know the law. See People v Garska, 303 Mich 313, 322
(1942) (“[The defendant] is presumed to have known the law.”). But we cannot
indulge the fiction selectively. If defendants are presumed to know that concurrent
sentencing is the norm, then they are also presumed to know that consecutive
sentencing is a possibility when they commit a second crime while on bond for
another one. See People v Jones, 459 Mich 902 (1998) (Boyle, J., dissenting
statement), order vacated on reconsideration, 459 Mich 959 (1999) (“Defendants are
presumed to know the law, and are thus presumed to know that under § 7b
subsequent offenses may be punished consecutively.”). CDAM imputes just enough
knowledge to make its point but stops short of imputing the kind of knowledge that
would defeat it. Amicus cannot have it both ways.
The Michigan Court of Appeals Dissent’s Constitutional Analysis. Unsatisfied
with the direct/collateral framework and associated inquiries altogether, the
dissenting judge below offered a competing constitutional standard that would
require trial courts to inform defendants about “sentencing choices available to the
court that likely would factor prominently in a defendant’s guilty plea decision
process.” (JA, at 40a.) Warren does not ask this Court to adopt that approach, and
for good reason. It expands due process’s coverage to all sorts of conceivable
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consequences that a defendant may consider important with hindsight, without any
principled limitation.
A few examples should suffice to make the point. A trial court’s sentencing
guidelines scoring decisions, which are unknown at the time of pleading guilty, have
a substantial influence on a defendant’s ultimate sentence and, thus, decisional
calculus. Yet, due process has never required trial courts to inform a defendant of
his guidelines range. See, e.g., United States v DeFusco, 949 F2d 114, 118 (CA 4,
1991) (collecting cases). The same goes for the trial court’s exercise of discretion in
choosing a defendant’s sentence, which is certainly something that would “factor
prominently” into a defendant’s decision to plead guilty. Due process has never
required information about that decision. See, e.g., Lewis v United States, 601 F2d
1100, 1101 (CA 9, 1979) (“[T]he court [need not] inform the defendant of the
probability of his receiving one sentence or another. Indeed, it is improper to do
so.”). So, too, for defendants eligible for probation. No doubt, those defendants are
keen to know what kind of probation lay in store for them. But courts “cannot
and do not require a trial judge to be clairvoyant and inform the defendant,
when accepting his plea, of all potential conditions of probation that may later be
imposed.” State v Cutler, 590 P2d 444, 446 (Ariz, 1979).
These discretionary consequences have just as much potential for increasing
the severity of punishment as consecutive sentences and may, in a given case,
“factor prominently” in a defendant’s guilty plea calculus. (Cf. JA, at 40a.) Nothing
in the standard offered by the dissenting judge below would limit its application
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from reaching these and other discretionary punitive sanctions that trial courts, in
Michigan and elsewhere, are not currently required to inform defendants about.
More important, the standard bears little resemblance to the Supreme
Court’s cautious approach to constitutionalizing this area of the criminal justice
system through due process. See Elstad, 470 US at 316 (noting that the Supreme
Court “has never embraced the theory that a defendant’s ignorance of the full
consequences of his decisions vitiates their voluntariness.”); Ruiz, 536 US at 629
(holding that due process does not require “complete knowledge of the relevant
circumstances”). In stark contrast to that cautious approach, which values stability
and consistency in application, the “factor prominently” standard is largely
subjective. Apparently recognizing this, the dissenting judge quickly qualified the
standard as capturing only those consequences that “reasonably” factor into the
decisional calculus. (JA, at 40a.) But even that qualification is not enough: what
may reasonably factor into one defendant’s decision may not for another, leaving
courts with nothing more than a “Rorschach ink blot[]” for a constitutional
standard. Cf. Justice Robert P Young, Jr, A Judicial Traditionalist Confronts
Justice Brennan’s School of Judicial Philosophy, 33 Okla City U L Rev 263, 264
(2008) (advocating against “treat[ing] constitutional provisions or laws like
Rorschach ink blots”).
In sum, the alternative constitutional analyses offered by the defense and
dissenting judge either misapply settled law or rely on an unprecedented standard
that threatens to resurrect the confusion and uncertainty that plagued our guilty
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plea process in the early 1970s. See Taylor, 383 Mich at 354; Williams, 386 Mich at
293. This Court should reject those approaches and hold, consistent with the vast
majority of courts addressing these issues, that due process requires a consequence
be explained to a defendant only if it is a “definite, immediate, and largely
automatic” consequence of pleading guilty. Because the possibility of discretionary
consecutive sentencing does not meet that definition, it is not a constitutionally
required component of the plea colloquy.
Naturally, the focus of the discussion in this case is the process that Rule
6.302 (as presently written) and the Constitution require trial courts to undertake
before accepting guilty pleas and whether it must include advice about the
possibility of discretionary sentencing. The answer to that question, for the reasons
discussed so far, is “no.” But it is important to emphasize what that answer does
not mean. The People are not arguing that defendants should be deprived of this
information; we agree in principle that it is beneficial for defendants to have this
information. Nor do we dispute that best practice is to provide defendants as much
as information as possible under the circumstances. But due process and best
practices are not synonymous, which leads the second question of process lying just
below the surface of this case: the process by which this Court solves perceived
problems in the administration of its criminal justice system.
This Court, of course, can address issues like this one through the judicial
process—the most prominent and perhaps most frequently used approach. But not
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every problem need be a nail when you have more than just a hammer in your
toolkit. There is another process available to the Court to address this issue, one
that can produce a far better result: the administrative rule-making process.
That process, which invites input from all interested stakeholders, will yield
a more fully informed and vetted rule that accounts not just for the “easy” cases, but
the unique and infrequent cases that the Court might not be considering during the
judicial process. The administrative process also gives this Court elbowroom to
reshape the rule more easily if problems arise with its application. The same is not
true of a constitutional standard established in the adjudicative setting, where
finding the right case to address a solution requires a fisherman’s patience, and
where holdings are quickly hardened by stare decisis principles. Simply put, the
Court can easily redline its court rules; it cannot redline the Michigan Reports. It is
for this very reason that this Court resorted to the rule-making process to solve
problems in the plea-taking process that proved unsolvable through the judicial
process. See Taylor, 383 Mich at 354; Williams, 386 Mich at 293.
Thus, if there is a deficiency in the current plea-taking process, the better
course is to dust off ADM No. 81-48, republicize it for public comment, and consider
incorporating some form of the proposed language into Rule 6.302.
If, however, this Court believes that a constitutional solution is necessary,
the more sensible place to find it is under the Sixth Amendment and the right to
effective assistance of counsel. See generally, Padilla v Kentucky, 559 US 356
(2010) (requiring counsel to inform defendants of mandatory deportation REC EI VE D b y M SC 6/18/2019 3:03:01 PM
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consequences of pleading guilty); 5 LaFave, Criminal Procedure, § 21.4(d) (noting
that a common thread among the cases rejecting due process challenges “is that
defense counsel should be expected to discuss with his client the range of risks
attendant his plea”). Counsel, after all, is the constitutional actor with the closest
relationship with the criminal defendant. That close relationship means two things:
first, as a fiduciary, counsel is best positioned to advise the accused on all the
important issues in a given case; and second, as a constituent of the attorney-client
privilege, counsel will often know more facts about the defendant’s legal
circumstances and, thus, whether consecutive sentencing is a possibility. And the
established procedure for litigating ineffective-assistance claims (Ginther remands
and hearings) will also provide a more efficient process for ascertaining whether the
defendant knew about the possibility for consecutive sentencing—a procedure that
is lacking if the issue is considered under the due process rubric. REC EI VE D b y M SC 6/18/2019 3:03:01 PM
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CONCLUSION AND RELIEF REQUESTED
For these reasons, the People respectfully ask this Court to deny Warren’s
application for leave to appeal and, if necessary, address any deficiencies in the
guilty plea process in its administrative rule-making capacity.
Dated: June 18, 2019 Respectfully submitted,
B. Eric Restuccia Deputy Solicitor General
/s/ David Porter
Assistant Attorney General Attorneys for the People Plaintiff–Appellee Criminal Appellate Division P.O. Box 30217 Lansing, MI 48909 (517) 335-7650 P76785
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