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People v. Pointer-Bey

Court of Appeals of Michigan

October 10, 2017

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,
v.
EDWARD DUANE POINTER-BEY, Defendant-Appellant.

         St Clair Circuit Court LC No. 15-000533-FC

          Before: Shapiro, P.J., and Hoekstra and M. J. Kelly, JJ.

          PER CURIAM.

         Defendant pleaded guilty to armed robbery, MCL 750.529, conspiracy to commit armed robbery, MCL 750.529; MCL 750.157a, bank robbery, MCL 750.531, conspiracy to commit bank robbery, MCL 750.531; MCL 750.157a, two counts of assault with a dangerous weapon (felonious assault), MCL 750.82, possession of a firearm in the commission of a felony (felony-firearm), second offense, MCL 750.227b, and felon in possession of a firearm (felon-in-possession), MCL 750.224f. Defendant now appeals by delayed leave granted.[1] Because there were errors in the plea proceedings that would entitle defendant to have his plea set aside, we vacate the trial court's orders denying defendant's motions to withdraw his plea and remand for proceedings consistent with this opinion under MCR 6.310(C).

         Defendant's convictions arise from his actions on February 20, 2015, when he and two co-conspirators robbed a bank in Marysville, Michigan. The prosecutor charged defendant with 8 counts: (1) armed robbery, (2) conspiracy to commit armed robbery, (3) bank robbery, (4) conspiracy to commit bank robbery, (5) felonious assault, (6) felony-firearm, (7) a second count of felonious assault, and (8) felon in possession. The prosecutor and defendant entered into a plea agreement, pursuant to which defendant pleaded guilty as charged on September 21, 2015.

         At the plea hearing, the prosecutor placed the terms of the agreement on the record, explaining that, in exchange for defendant's plea, the prosecutor agreed not to charge defendant with another bank robbery committed on January 20, 2015. Additionally, in terms of sentencing, the prosecutor agreed to reduce defendant's habitual offender status from fourth-offense-with a 25-year mandatory minimum under MCL 769.12(1)(a)-to third-offense. Following the prosecutor's recitation of the agreement, the trial court stated on the record that "a 20 year minimum sentence would be appropriate." Defendant provided a factual basis for his plea on the record and then pleaded guilty.

         After defendant pleaded guilty, he filed a motion to withdraw his plea, which the trial court denied. The trial court then sentenced defendant as a third-offense habitual offender, MCL 769.11, to 15 to 40 years' imprisonment for the armed robbery, conspiracy to commit armed robbery, bank robbery, and conspiracy to commit bank robbery convictions, four to eight years' imprisonment for each felonious assault conviction, 5 to 10 years' imprisonment for the felon-in-possession conviction, and a consecutive five years' imprisonment for the felony-firearm, second offense. Following his sentencing, defendant filed another motion to withdraw his plea, which the trial court again denied. Defendant now appeals by leave granted.

         I. MOTIONS TO WITHDRAW PLEA

         On appeal, defendant first submits that the trial court abused its discretion by denying his motions to withdraw his plea. Specifically, defendant contends that the plea proceedings were defective because (1) defendant was not informed of the sentencing consequences related to his convictions for felonious assault and felon-in-possession, (2) there was no factual basis for his felony-firearm conviction because defendant had not previously been convicted under MCL 750.227b, (3) his plea was illusory because he was not subject to a 25-year mandatory minimum as a fourth-offense habitual offender, and (4) the trial court made promises of leniency at the plea hearing which were not fulfilled insofar as the trial court failed to sentence defendant in accordance with the initial Cobbs[2] evaluation.

         Defendant preserved his arguments by filing motions to withdraw his plea in the trial court. See MCR 6.310(D). We review for an abuse of discretion a trial court's ruling on a motion to withdraw a plea. People v Brown, 492 Mich. 684, 688; 822 N.W.2d 208 (2012). "A trial court abuses its discretion when its decision falls outside the range of reasonable and principled outcomes." People v Strickland, 293 Mich.App. 393, 397; 810 N.W.2d 660 (2011) (citation and quotation marks omitted). This Court reviews de novo underlying questions of law and for clear error the trial court's factual findings. People v Martinez, 307 Mich.App. 641, 646-647; 861 N.W.2d 905 (2014).

         "There is no absolute right to withdraw a guilty plea once the trial court has accepted it." People v Al-Shara, 311 Mich.App. 560, 567; 876 N.W.2d 826 (2015) (citation omitted). However, a defendant may move to have his or her plea set aside based on an error in the plea proceedings. MCR 6.310(B)(1), (C). To succeed on such a motion, the defendant "must demonstrate a defect in the plea-taking process." Brown, 492 Mich. at 693.

         "Guilty- and no-contest-plea proceedings are governed by MCR 6.302." People v Cole, 491 Mich. 325, 330; 817 N.W.2d 497 (2012). Under MCR 6.302, to be valid, a plea must be "understanding, voluntary, and accurate." Brown, 492 Mich. at 688-689. To ensure that a plea is accurate, the trial court must establish a factual basis for a guilty plea. MCR 6.302(D); People v Plumaj, 284 Mich.App. 645, 648 n 2; 773 N.W.2d 763 (2009). "In order for a plea to be voluntary and understanding, the defendant must be fully aware of the direct consequences of the plea." People v Blanton, 317 Mich.App. 107, 118; 894 N.W.2d 613 (2016) (citation and quotation marks omitted). "The penalty to be imposed is the most obvious direct consequence of a conviction." Id. (citation, brackets, and quotation marks omitted). Therefore, MCR 6.302(B)(2) requires the trial court to advise a defendant, prior to the defendant entering a plea, of "the maximum possible sentence for the offense and any mandatory minimum sentence required by law." Brown, 492 Mich. at 689.

         A. SENTENCES FOR FELONIOUS ASSAULT & FELON-IN-POSSESSION

         Given the requirements of MCR 6.302, in this case, we conclude that defendant's guilty plea was not understandingly entered because defendant was not informed of the maximum sentence for felon-in-possession. At defendant's sentencing, the prosecutor informed the trial court of defendant's plea agreement, stating that defendant:

will be pleading guilty as charged to Count One, which is robbery armed, with maximum penalty is [sic] life or any term of years; Count Two, conspiracy to commit robbery armed, also life offense or any term of years; Count Three, bank robbery, life offense or any term of years; Count Four, conspiracy to commit bank robbery, life offense or any term of years; Count Five, which is assault with a dangerous weapon or felonious assault . . .; Count Six, weapon felony firearm, second offense, which is mandatory five year consecutive; Count Seven, assault with a dangerous weapon felonious assault . . . which is a four year maximum penalty and Count Eight, which is weapon firearm, possession by a felon.

         In providing this explanation of defendant's maximum sentences, the prosecution failed to state the maximum sentences for Count Five, felonious assault, and Count Eight, felon-in-possession. The prosecutor did advise defendant, in relation to Count Seven, that felonious assault carried a maximum penalty of 4 years. But, even if this should be understood to apply equally to Count Five, the fact remains that defendant was not informed of the maximum possible sentence for felon-in-possession. For that reason, the erroneous advice rendered defendant's plea proceeding defective. Brown, 492 Mich. at 694; Blanton, 317 Mich.App. at 119-120. Consequently defendant is entitled to withdraw his plea in its entirety, Blanton, 317 Mich.App. at 126; and, the trial court's failure to allow defendant to do so constituted an abuse of discretion. Based ...


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