In re Messenger

1

In re MESSENGER, Minor,

No. 360318

Court of Appeals of Michigan

May 25, 2023

UNPUBLISHED

Wayne Circuit Court Family Division LC No. 2021-000551-DJ

Before: M J. Kelly, P.J., and Swartzle and Feeney, JJ.

PER CURIAM.

Respondent pleaded nolo contendere to assault with intent to murder (AWIM), MCL 750.83, discharge of a weapon from a vehicle, MCL 750.234a(1)(a), and carrying a concealed weapon MCL 750.227. The trial court sentenced him to serve concurrent terms of imprisonment of 15 to 25 years for the AWIM conviction, and 1 to 5 years for each weapons conviction. Respondent was 16 years old on the date of the incident, but was given an adult designation. The trial court eschewed alternatives available for a blended juvenile sentence and instead committed respondent directly to the Department of Corrections (DOC). Respondent appeals by right. We affirm.

I. FACTS

According to the criminal complaint, and other documentation available to the trial court, on the night of June 18, 2021, the victim, then 15 years old, was standing outside his home in Inkster with several other young people. Respondent and another person came upon the scene in a vehicle, and several gunshots emerged from it. The victim was struck in the chest and taken to the hospital in critical condition.

Police officers questioned witnesses, recovered shell casings, and gathered exterior video from nearby residences. Additionally police also executed a search warrant on respondent's home and found a handgun and ammunition consistent with the casings retrieved from the crime scene. Respondent was charged with five counts of AWIM, one count of firearm discharge from a vehicle, one count of carrying a concealed weapon (CCW), and six counts of possession of a firearm during the commission of a felony, MCL 750.227b. He refused to identify anyone else who was involved.

On October 4, 2021, respondent pled no contest to one count of AWIM, one count of firearm discharge from a vehicle, and one count of CCW, in exchange for dismissal of the other ten charges. The trial court explained in detail that respondent had been given an adult designation and that his sentence could be delayed and blended with juvenile probation, or he could serve a sentence of imprisonment with the DOC. Respondent stated that he understood, and he answered correctly when the trial court challenged him to explain back to the court the two sentencing possibilities he faced.

Respondent's first sentencing hearing was held on November 15, 2021. A Presentence Investigation Report (PSIR) had not yet been prepared because the court had not yet decided whether respondent would be committed directly to the DOC. The trial court did have access to a "Designated Case Pre-Sentencing Report," and a detailed "Juvenile Assessment Summary Disposition Report." Respondent offered no statement when given a chance for allocution. The trial court referred to his silence when explaining the sentence, including that the court had heard "a lot from the victim's family" but not "much from the offender." The court also stated as follows:

And when afforded an opportunity to say anything, you opted not to say anything. You're not required to. But some level of remorse has never hurt anybody, if you're sincerely sorry. Obviously if you're not then why apologize[?]

Finally, the court stated, "I heard the statements. [Respondent] didn't have anything to say." The court described respondent's background as not terrible, but not perfect, with "some things that saddened me to some degree." The trial court described the sentence it envisioned for respondent, but stated that "formal sentencing" would have to wait until a PSIR had been prepared.

On January 20, 2022, another dispositional hearing was held. A PSIR had been prepared and reviewed by the court and all parties. At this hearing, respondent's counsel argued that respondent had believed he was being promised a blended sentence if he pled no contest. The trial court denied making any such promise^[1] or that any error had taken place in the plea proceedings, but the Court offered to give respondent two weeks to consider whether he would withdraw his plea. The trial court stated that "the only reason that the youth wishes to withdraw his plea [was] . . . his dissatisfaction with the court's disposition," but that this offer was "solely based on the fact that I just believe in letting people have their day in court, if that's what they want."

On January 31, 2022, respondent's final dispositional hearing and sentencing took place. At that time, the trial court countermanded its earlier offer to allow respondent to withdraw his plea, and explained that there was no legal basis for that offer. The sentencing guidelines recommended a minimum sentence for the AWIM conviction of 11 years and 3 months to 18 years and 9 months. The trial court gave respondent another chance for allocution, and he again declined. The trial then court sentenced respondent to a minimum of 15 years in prison, as described above, with the AWIM sentence falling within the guideline range. No blended sentence was offered.

On appeal, respondent argues that the trial court erred by refusing to allow him to withdraw his plea, that the court impermissibly based its sentencing decision in part on respondent's silence, and it impermissibly decided on a sentence before having the benefit of a PSIR. Respondent also argues that the resulting sentence was cruel or unusual punishment in violation of the United States and Michigan Constitutions.

II. ANALYSIS

A. STANDARDS OF REVIEW

"Constitutional questions and issues of statutory interpretation are questions of law," subject to review de novo. People v Watkins, 491 Mich. 450, 466; 818 N.W.2d 296 (2012). The interpretation of court rules is also reviewed de novo. In re Diehl, 329 Mich.App. 671, 687; 944 N.W.2d 180 (2019). We review a trial court's decision to grant or deny a request to withdraw a plea for an abuse of discretion. People v Wilhite, 240 Mich.App. 587, 594; 618 N.W.2d 386 (2000). "A trial court abuses its discretion when it chooses an outcome falling outside the range of principled outcomes." Watkins, 491 Mich. at 467.

Unpreserved claims, however, are reviewed for plain error. People v Carines, 460 Mich. 750, 764; 597 N.W.2d 130 (1999). "To avoid forfeiture under the plain error rule, three require-ments must be met: 1) error must have occurred, 2) the error was plain, i.e., clear or obvious, and 3) the plain error affected substantial rights." Id. at 763. "The reviewing court should reverse only when the defendant is actually innocent or the error seriously affected the fairness, integrity, or public reputation of judicial proceedings." Id. at 774.

B. PLEA WITHDRAWAL

First respondent argues that the trial court erred by not allowing him to withdraw his plea. MCR 6.310(B) states, in relevant part:

Except as provided in subsection (3), after acceptance but before sentence,

(1) a plea may be withdrawn on the defendant's motion or with the defendant's consent, only in the interest of justice, and may not be withdrawn if withdrawal of the plea would substantially prejudice the prosecutor because of reliance on the plea. If the defendant's motion is based on an error in the plea proceeding, the court must permit the defendant to withdraw the plea if it would be required by subrule (C).

MCR 6.435(B) provides as follows:

After giving the parties an opportunity to be heard, and provided it has not yet entered judgment in the case, the court may reconsider and modify, correct, or rescind any order it concludes was erroneous.

"[S]ubjective dissatisfaction with a sentence" is not "grounds for withdrawing a plea." Wilhite, 240 Mich.App. at 597. In Wilhite, 240 Mich.App. at 588, the trial court granted the defendant's motion to withdraw his no contest plea. We reversed, reasoning that "the interest of justice" standard had not been met because the defendant "neither claimed actual innocence nor claimed that he had a valid defense to the charge," but rather "voluntarily and knowingly pleaded no contest to the charges pursuant to a plea agreement placed on the record, which did not encompass a delay of sentence or dismissal of charges." Id. at 596.

We conclude that the trial court properly recognized that it had incorrectly offered respondent the option of withdrawing his plea at the January 20, 2022 proceeding because there was no error in the plea proceedings and withdrawal would not be in the interest of justice. MCR 6.310(B)(1). Further, at the January 31, 2022 hearing, the trial court heard the arguments of both parties before exercising its authority under MCR 6.435(B) to rescind its invalid offer.

Respondent argues that he was entitled to withdraw his no contest plea on the ground that he did not fully understand the attendant ramifications. The record shows the trial court carefully explaining every pertinent concept to respondent in easy-to-understand, common language. Additionally, the court consistently provided explanations each time the respondent indicated he did not understand something and even tested him to ensure that he was not just saying "yes" without actually understanding. The trial court explained in detail how it could send respondent to prison right away or delay the adult sentence by sending him initially to juvenile detention. The court later reinforced this, and explained "the actual disposition or the actual sentencing, there is no agreement as to that. So we haven't agreed that you're going to do one thing or another." In our view, the record does not show respondent was unaware, but instead reveals that respondent sometimes struggled at first with the pertinent concepts but was amply helped and thereafter...