People v. Walker

328 Mich.App. 429

938 N.W.2d 31

PEOPLE of the State of Michigan, Plaintiff-Appellant,

v.Juan T. WALKER, Defendant-Appellee.

No. 332491

Court of Appeals of Michigan.

Submitted December 14, 2018, at Lansing.

Decided May 23, 2019, at 9:10 a.m.

Dana Nessel, Attorney General, Fadwa Hammoud, Solicitor General, Kym L. Worthy, Prosecuting Attorney, Jason W. Williams, Chief of Research, Training, and Appeals, and Thomas M. Chambers, Assistant Prosecuting Attorney, for the people.

Daniel J. Rust, Redford, for defendant.

Before: Cavanagh, P.J., and Borrello and Cameron, JJ.

ON REMAND

Cameron, J.

Our Supreme Court has directed this Court to consider whether the decision in Lafler v. Cooper , 566 U.S. 156, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012), should be applied retroactively to allow defendant to successfully assert that his trial counsel provided ineffective assistance of counsel in the plea-bargaining context by failing to notify defendant of a plea offer before trial. We hold that Lafler applies retroactively because the case does not announce a new rule. Therefore, applying the Lafler decision here, we affirm the trial court’s order granting relief to defendant.

I. FACTUAL AND PROCEDURAL BACKGROUND

In 2001, a jury convicted defendant of first-degree premeditated murder, MCL 750.316(1)(a), and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b(1). Defendant was originally sentenced to life imprisonment without parole for the first-degree premeditated-murder conviction to be served consecutively to two years' imprisonment for the felony-firearm conviction. This Court affirmed defendant’s convictions and sentences on direct review. People v. Walker , unpublished per curiam opinion of the Court of Appeals, issued March 1, 2005 (Docket No. 239711, 2005 WL 473608 ) ( Walker I ).

In 2011, defendant moved in the trial court for relief from judgment on the ground that his trial counsel was ineffective for not informing him of the prosecutor’s pretrial offer that he plead guilty to second-degree murder and felony-firearm with a sentence agreement of 25 to 50 years’ imprisonment for second-degree murder and two years’ imprisonment for felony-firearm. The trial court denied defendant’s motion for relief from judgment. Defendant filed a delayed application for leave to appeal, which this Court denied "for failure to meet the burden of establishing entitlement to relief under MCR 6.508(D)."

People v. Walker , unpublished order of the Court of Appeals, entered May 21, 2012 (Docket No. 307480). Defendant sought leave to appeal this Court’s order in the Michigan Supreme Court, which held defendant’s application in abeyance pending the decision in Burt v. Titlow , 571 U.S. 12, 134 S.Ct. 10, 187 L.Ed.2d 348 (2013). People v. Walker , 829 N.W.2d 217 (Mich., 2013). After Burt was decided, our Supreme Court remanded the instant case to the trial court for a Ginther¹ hearing with these instructions:

[W]e remand this case to the Wayne Circuit Court for an evidentiary hearing, pursuant to People v Ginther , 390 Mich. 436 (1973), as to the defendant’s contention that his trial counsel was ineffective for failing to inform him of the prosecutor’s September 26, 2001 offer of a plea bargain to second-degree murder and a sentence agreement of 25 to 50 years. See Missouri v. Frye , 566 U.S. [134]; 132 S.Ct. 1399; 182 L.Ed.2d 379 (2012). To prevail on a claim of ineffective assistance of counsel, a defendant must show: (1) that his attorney’s performance was objectively unreasonable in light of prevailing professional norms; and (2) that he was prejudiced by the deficient performance. People v. Carbin , 463 Mich. 590, 599-600, 623 N.W.2d 884 (2001). In order to establish the prejudice prong of the inquiry under these circumstances, the defendant must show that: (1) he would have accepted the plea offer; (2) the prosecution would not have withdrawn the plea offer in light of intervening circumstances; (3) the trial court would have accepted the defendant’s plea under the terms of the bargain; and (4) the defendant’s conviction or sentence under the terms of the plea would have been less severe than the conviction or sentence that was actually imposed. Lafler v. Cooper , 566 U.S. [156, 164]; 132 S.Ct. 1376; 182 L.Ed.2d 398 (2012).

If the defendant establishes that his trial counsel was ineffective in failing to convey the plea bargain as outlined above, the defendant shall be given the opportunity to establish his entitlement to relief pursuant to MCR 6.508(D). If the defendant successfully establishes his entitlement to relief pursuant to MCR 6.508(D), the trial court must determine whether the remedy articulated in Lafler v. Cooper should be applied retroactively to this case, in which the defendant’s conviction became final in October 2005. [ People v. Walker , 497 Mich. 894, 894-895, 855 N.W.2d 744 (2014).]

On remand, the trial court held a Ginther hearing, after which the trial court entered an order holding that defendant was denied the effective assistance of counsel when his trial attorney failed to inform him of the plea offer.

Defendant then filed another motion for relief from judgment in the trial court, as required by our Supreme Court’s remand order, and the trial court granted that motion and ordered the prosecution to reoffer defendant the plea deal. Defendant then pleaded guilty and was resentenced to 25 to 50 years’ imprisonment for second-degree murder and two years’ imprisonment for felony-firearm. [ People v. Walker , unpublished per curiam opinion of the Court of Appeals, issued October 12, 2017 (Docket No. 332491) ( Walker II ), rev'd in part and remanded 503 Mich. 908, 919 N.W.2d 401 (2018) ( Walker III ).]

In September 2016, this Court granted the prosecution’s delayed application for leave to appeal, which challenged the trial court’s order granting defendant’s motion for relief from judgment. People v. Walker , unpublished order of the Court of Appeals, entered September 9, 2016 (Docket No. 332491). In October 2017, this panel issued an opinion reversing the trial court’s order and remanding the case for the reinstatement of defendant’s original convictions and sentences. Walker II , unpub. op. at 1, 9. This Court agreed with the prosecutor’s argument "that defendant was afforded the effective assistance of counsel because he was not prejudiced, i.e., he did not demonstrate that there was a reasonable probability that he would have accepted the plea offer had it been made known to him." Id. at 3.² With respect to the prejudice requirement, this Court was "left with a definite and firm conviction that the trial [court] made a mistake in its findings, failed to engage in a proper analysis under Lafler , and thereby abused its discretion when it granted defendant’s motion for relief from judgment." Id. at 7. That is, "the trial court clearly erred in finding a reasonable probability defendant would have accepted the plea offer. Therefore, defendant did not satisfy his burden in proving ineffective assistance of counsel, and the trial court abused its discretion when it granted defendant’s motion for relief from judgment." Id. at 9.

Our Supreme Court entered an order reversing in part this Court’s decision and remanding the case to this Court for consideration of whether Lafler applies retroactively to this case; in particular, our Supreme Court’s order stated as follows:

Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we reverse that part of the judgment of the Court of Appeals holding that the trial court clearly erred in finding a reasonable probability that the defendant would have accepted the plea offer, and we remand this case to that court for consideration of whether Lafler v. Cooper , 566 U.S. 156, 182 L.Ed.2d 398 (2012), should be applied retroactively to this case, in which the defendant’s convictions became final in 2005.

The Court of Appeals found clear error in the trial court’s memorandum opinion and in its statements during oral argument at a subsequent hearing. However, in its review of the record, the Court of Appeals failed to recognize that, at the end of that hearing, the trial court quoted the applicable standard from Lafler and unequivocally found that there was a reasonable probability that the defendant would have accepted the plea offer. This finding—made by the trial judge who presided over the trial and the evidentiary hearing—is supported by the record, and we are not "left with a definite and firm conviction that the trial court made a mistake." People v. Armstrong , 490 Mich. 281, 289, 806 N.W.2d 676 (2011). [Walker III , 503 Mich. 908, 919 N.W.2d 401.]

On remand, we must determine whether Lafler should apply retroactively to this case. If it does, then we must affirm the trial court’s order ruling that defendant was denied the effective assistance of counsel when his trial attorney failed to inform defendant of the plea offer.

II. ANALYSIS

"The issue whether a United States Supreme Court decision applies retroactively presents a question of law that we review de novo. We review for an abuse of discretion the trial court’s ultimate ruling on a motion for relief from a judgment." People v. Gomez , 295 Mich. App. 411, 414, 820 N.W.2d 217 (2012) (citation omitted).

Our Supreme Court has recently explained:

Ordinarily, judicial decisions are to be given complete retroactive effect. But judicial decisions which express new rules normally are not applied retroactively to other cases that have become final. New legal principles, even when applied retroactively, do not apply to cases already closed, because at some point, the rights of the parties should be considered frozen and a conviction final. Thus, as to those cases that have become final, the general rule allows only prospective application. [ People v. Barnes , 502 Mich. 265, 268, 917 N.W.2d 577 (2018) (quotation marks, ellipsis, and citations omitted).]

In Barnes , 502 Mich. at 269, 917 N.W.2d 577, our...