People v. Pointer-Bey

321 Mich.App. 609

909 N.W.2d 523

PEOPLE of the State of Michigan, Plaintiff-Appellee,

v.Edward Duane POINTER-BEY, Defendant-Appellant.

No. 333234

Court of Appeals of Michigan.

Submitted October 3, 2017, at Detroit.

Decided October 10, 2017, 9:15 a.m.

Bill Schuette, Attorney General, Aaron D. Lindstrom, Solicitor General, Michael D. Wendling, Prosecuting Attorney, and Hilary B. Georgia, Senior Assistant Prosecuting Attorney, for the people.

Edward D. Pointer-Bey, in propria persona, and Carl Cristoph for defendant.

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 and MCL 750.157a ; bank robbery, MCL 750.531, conspiracy to commit bank robbery, MCL 750.531 and MCL 750.157a ; two counts of assault with a dangerous weapon (felonious assault), MCL 750.82 ; possession of a firearm during the commission of a felony (felony-firearm), second offense, MCL 750.227b ; and being a 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 we remand for proceedings consistent with this opinion and with MCR 6.310(C).

Defendant’s convictions arise from his actions on February 20, 2015, when he and two co-conspirators robbed a credit union in Marysville, Michigan. The prosecutor charged defendant with eight 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, and 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 sentence 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, on the record, pleaded guilty and then provided a factual basis for his plea.

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 45 years’ imprisonment for the convictions of armed robbery, conspiracy to commit armed robbery, bank robbery, and conspiracy to commit bank robbery, 4 to 8 years’ imprisonment for each felonious-assault conviction, 5 to 10 years’ imprisonment for the felon-in-possession conviction, and 5 years’ imprisonment, to be served consecutively, for the felony-firearm, second offense, conviction. Following his sentencing, defendant filed another motion to withdraw his plea, which the trial court again denied. Defendant now appeals by delayed 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) he was not informed of the sentencing consequences related to his convictions of felonious assault and felon-in-possession, (2) there was no factual basis for his felony-firearm conviction because he 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 that were not fulfilled insofar as the trial court failed to sentence him in accordance with the initial Cobbs² evaluation.

Defendant preserved his claims of error 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) (quotation marks and citation 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) (quotation marks and citation omitted). However, a defendant may move to have his or her plea set aside on the basis of an error in the plea proceedings. MCR 6.310(B)(1). To succeed on such a motion after sentencing, the defendant "must demonstrate a defect in the plea-taking process." Brown , 492 Mich. at 693, 822 N.W.2d 208.

"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, 822 N.W.2d 208. To ensure that a guilty plea is accurate, the trial court must establish a factual basis for the 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) (quotation marks and citation omitted). "The penalty to be imposed is the most obvious direct consequence of a conviction." Id. (quotation marks, citation, and brackets omitted). Therefore, MCR 6.302(B)(2) requires the trial court to advise a defendant, prior to the defendant’s entering a plea, of "the maximum possible sentence for the offense and any mandatory minimum sentence required by law...." Brown , 492 Mich. at 689, 822 N.W.2d 208.

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

Given the requirements of MCR 6.302, 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 5, felonious assault, and Count 8, felon-in-possession. The prosecutor did advise defendant, in relation to Count 7, that felonious assault carried a maximum penalty of 4 years. But even if this should be understood to apply equally to Count 5, the fact remains that defendant was not informed of the maximum possible sentence for felon-in-possession. That omission rendered defendant’s plea proceeding defective. Brown , 492 Mich. at 694, 822 N.W.2d 208 ; Blanton , 317 Mich.App. at 120, 894 N.W.2d 613. Consequently, defendant was entitled to withdraw his plea in its entirety, Blanton , 317 Mich.App. at 126, 894 N.W.2d 613, and, the trial court’s failure to allow defendant to do so constituted an abuse of discretion. This matter must therefore be remanded to the trial court, where defendant shall be given "the opportunity to elect to allow the plea and sentence to stand or to withdraw the plea" pursuant to MCR 6.310(C).

B. FELONY-FIREARM

Next, in terms of the accuracy of defendant’s plea, defendant contends that there was no factual basis for his felony-firearm conviction because, although he was sentenced as if it was his second felony-firearm offense, he did not have a prior conviction under MCL 750.227b. Contrary to defendant’s framing of the matter, this issue does not concern the accuracy of his plea. A conviction under MCL 750.227b"requires proof beyond a reasonable doubt that a defendant carried a firearm during the commission or attempted commission of a felony and nothing more ." People v. Miles , 454 Mich. 90, 99, 559 N.W.2d 299 (1997) (emphasis added). Consequently, defendant’s plea was accurate because defendant admitted at the plea hearing that he possessed a gun during the bank robbery, and this provided a factual basis for his felony-firearm conviction. See MCR 6.302(D)(1).

Whether defendant "was a first-, second-, or third-time offender under the felony-firearm act affects only the duration of the defendant’s sentence." Miles , 454 Mich. at 100, 559 N.W.2d 299. In other words, a prior conviction under MCL 750.227b is not an element of felony-firearm; instead, it is relevant to determining whether defendant should be subject to a sentencing enhancement. See Miles , 454 Mich. at 99, 559 N.W.2d 299. Because a prior conviction is not an element of felony-firearm, any error relating to defendant’s...