People v. Baham

321 Mich.App. 228

909 N.W.2d 836

PEOPLE of the State of Michigan, Plaintiff–Appellee,

v.Richard Allen BAHAM, Defendant–Appellant.

No. 331787

Court of Appeals of Michigan.

Submitted August 1, 2017, at Grand Rapids.

Decided September 12, 2017, 9:00 a.m.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Victor A. Fitz, Prosecuting Attorney, and Thomas Hubbert, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by Jeanice Dagher-Margosian ) for defendant.

Before: Hoekstra, P.J., and Murphy and K. F. Kelly, JJ.

Per Curiam.

Defendant pleaded guilty of manufacturing methamphetamine, MCL 333.7401(2)(b)(i ) ;), operating or maintaining a laboratory involving methamphetamine, MCL 333.7401c(2)(f) ; and possession of methamphetamine, MCL 333.7403(2)(b)(i ). Defendant filed a delayed application for leave to appeal, which this Court denied. Defendant then sought leave to appeal in the Michigan Supreme Court. In lieu of granting leave to appeal, the Supreme Court remanded "this case to the Court of Appeals for consideration as on leave granted." People v. Baham , 500 Mich. 945, 890 N.W.2d 658 (2017). On remand, because the factual basis for defendant's plea supported his convictions, defendant's convictions did not violate double jeopardy, and defendant was not denied the effective assistance of counsel, we affirm.

In May 2015, the police arrested defendant after discovering that he was operating a mobile methamphetamine laboratory in his vehicle. Defendant was charged with five criminal offenses and given notice that he could be sentenced as a fourth-offense habitual offender, MCL 769.12. The prosecutor offered defendant a plea deal, pursuant to which defendant would plead guilty of manufacturing methamphetamine, operating or maintaining a methamphetamine laboratory, and possession of methamphetamine. In exchange, the prosecutor agreed to dismiss the of charges of maintaining a drug house, MCL 333.7405(1)(d), and operating a vehicle while his license was suspended, second offense, MCL 257.904(3)(b). The prosecutor also agreed that defendant could be sentenced as a second-offense habitual offender, MCL 769.10, as opposed to a fourth-offense habitual offender. At the plea hearing, the trial court engaged in the following colloquy with defendant to ascertain the factual basis for defendant's plea:

The Court : The Count I offense charges you with manufacture of [sic] making some methamphetamine.

Is that true, did you make some methamphetamine?

The Defendant : Yes.

The Court : Did you know the substance that you were manufacturing or making was, in fact, methamphetamine?

The Defendant : Yes, sir.

The Court : And the Count II charge says that you were operating or maintaining a laboratory to make methamphetamine.

Does that mean that you had chemicals or the necessary components to make it?

The Defendant : Yes.

The Court : And did you make it in a building or a residence that was under you control?

The Defendant : Um, a vehicle, yes, sir.

The Court : In a vehicle?

The Defendant : Yes. Yes, I did.

The Court : All right, and was that a vehicle of yours or one you controlled?

The Defendant : Yes.

The Court : Did you know that the stuff was there, the components in the vehicle, that you could use to make meth?

The Defendant : Yes, sir.

The Court : Were you successful, did you end up possessing some methamphetamine as a result of your manufacturing?

The Defendant : One more time, please?

The Court : Were you successful? Did you end up possessing some meth that you made?

The Defendant : Yes.

The Court : Because that's the Count III charge; that's why I'm asking you about that. It says you possessed some methamphetamine.

Is that true, did you possess some methamphetamine that you had cooked or made?

The Defendant : Yes.

The Court : And you knew that substance was, in fact, methamphetamine; is that right?

The Defendant : Yes.

On the basis of on these admissions by defendant, the trial court accepted defendant's guilty plea, finding that it was factually supported. In keeping with the plea bargain, the trial court sentenced defendant as a second-offense habitual offender to concurrent terms of 51 months' to 30 years' imprisonment for manufacturing methamphetamine and operating or maintaining a methamphetamine laboratory as well as a concurrent sentence of 117 days for the possession of methamphetamine. The case is now before us on remand from the Michigan Supreme Court for consideration as on leave granted.

I. PERSONAL-USE EXCEPTION

On appeal, defendant first argues that his guilty plea for manufacturing methamphetamine should be set aside because, as set forth in MCL 333.7106(3)(a), there is a personal-use exception to prohibitions on manufacturing a controlled substance and, absent evidence that defendant did not intend to use the methamphetamine for personal use, the factual basis for his manufacturing conviction was lacking and trial counsel was ineffective for not raising this issue. We disagree.

Initially, we note that defendant never moved to withdraw his guilty plea in the trial court. Under MCR 6.310(D), defendant's failure to file a motion to withdraw his guilty plea bars him from raising on appeal the argument that his plea was not an accurate one. In particular, MCR 6.310(D) states:

A defendant convicted on the basis of a plea may not raise on appeal any claim of noncompliance with the requirements of the rules in this subchapter, or any other claim that the plea was not an understanding, voluntary, or accurate one, unless the defendant has moved to withdraw the plea in the trial court, raising as a basis for withdrawal the claim sought to be raised on appeal.

Defendant's challenge to the factual basis for his plea implicates the accuracy of his plea, and thus his claim falls squarely within the ambit of MCR 6.310(D). Because a motion to withdraw a plea constitutes a prerequisite for challenging the accuracy of a plea and defendant has not filed such a motion, our direct substantive review of this appellate argument is precluded under MCR 6.310(D). People v. Armisted , 295 Mich. App. 32, 48, 811 N.W.2d 47 (2011).

However, defendant has also raised his argument as an ineffective-assistance claim, asserting that counsel provided ineffective assistance by not raising the personal-use issue in the trial court. While our direct substantive analysis of the personal use issue is precluded by MCR 6.310(D), this rule does not prevent us from considering the personal-use exception in the context of an ineffective assistance argument. As demonstrated by the Supreme Court order in People v. Broyles , 498 Mich. 927 (2015), a claim of ineffective-assistance of counsel can serve as a basis for relief relative to a plea despite a failure to comply with MCR 6.310. Specifically, the Court observed and ruled:

Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we vacate the Kent Circuit Court’s order denying the defendant’s motion for plea withdrawal and/or to correct an invalid sentence and we REMAND this case to the Kent Circuit Court. That court shall treat the defendant’s January 26, 2015 supplemental brief and February 20, 2015 supplemental motion as timely filed and evaluate the defendant’s issues on the merits. The defendant’s attorney acknowledges that the defendant did not contribute to the delay in filing a proper motion and admits her sole responsibility for the error. Because a motion to withdraw a plea or correct an invalid sentence is a prerequisite to substantive review on direct appeal under MCR 6.310 and MCR 6.429, the defendant was effectively deprived of his direct appeal as a result of constitutionally ineffective assistance of counsel. [ Broyles , 498 Mich. at 927–928, 871 N.W.2d 209.]

Following the reasoning in Broyles , while we may not directly address the personal-use exception on appeal, we may consider it to determine whether counsel's failure to properly raise this issue in the trial court, and to file a motion to withdraw a plea on this basis, constituted the ineffective assistance of counsel.

"To establish an ineffective assistance of counsel claim, a defendant must show that (1) counsel’s performance was below an objective standard of reasonableness under prevailing professional norms and (2) there is a reasonable probability that, but for counsel's error, the result of the proceedings would have been different." People v. Lockett , 295 Mich. App. 165, 187, 814 N.W.2d 295 (2012). "Effective assistance of counsel is presumed, and defendant bears a heavy burden to prove otherwise." People v. Dixon , 263 Mich. App. 393, 396, 688 N.W.2d 308 (2004). "Failing to advance a meritless argument or raise a futile objection does not constitute ineffective assistance of counsel." People v. Ericksen , 288 Mich. App. 192, 201, 793 N.W.2d 120 (2010).

To determine whether counsel provided ineffective assistance of counsel in this case, it is necessary to consider the factual basis for defendant's plea and the applicability of the personal-use exception. Under MCR 6.302(D)(1), if a defendant pleads guilty, "the court, by questioning the defendant, must establish support for a finding that the defendant is guilty of the offense charged or the offense to which the defendant is pleading." "When reviewing whether the factual basis for a plea was adequate, this Court considers whether the fact-finder could have found the defendant guilty on the basis of the facts elicited from the defendant at the plea proceeding." People v. Fonville , 291 Mich. App. 363, 377, 804 N.W.2d 878 (2011). "Where the statements by a defendant at the plea procedure do not establish grounds for a finding that the defendant committed the crime charged, the factual basis for the plea-based conviction is lacking." People v. Mitchell , 431 Mich. 744, 748, 432 N.W.2d 715 (1988).

Whether the conduct admitted by a defendant falls within the scope of the criminal statute at issue is a question of statutory interpretation. People v. Adkins , 272 Mich....