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A Night To Remember

Michigan Supreme Court Announces Court Must Inform Defendant of Consecutive Sentencing Authority When Accepting Plea

In a case of first impression, the Supreme Court of Michigan held “that MCR 6.302(B)(2) requires the trial court, in cases where such advice is relevant, to advise a defendant of its discretionary consecutive-sentencing authority and possible consequences of that authority for defendant’s sentence.”

The Court’s April 29, 2020, ruling was issued in an appeal brought by Kelly C. Warren. He drove while intoxicated in November 2014 and also did so the following summer. In each case, he was charged, among other crimes, with operating a vehicle while intoxicated, third offense (OWI-3rd). The prosecution gave notice of a sentence enhancement as a habitual offender — as a fourth-offense habitual offender.

Warren agreed to plead guilty to one count of OWI-3rd in each case in exchange for dismissal of the remaining charges and the habitual-offender enhancement. During the plea hearing, the trial court confirmed with the parties that each charge carried “a five year maximum.”

At no point did the court inform Warren that it had authority under MCL 768.7b(2)(a) to impose consecutive sentences. It ultimately sentenced him to consecutive two- to five-year prison terms because he had committed a felony while released on bond for another felony. Therefore, he was subject to a maximum of 10 years’ imprisonment.

Warren moved to withdraw his plea based on the trial court’s failure to advise him of the possibility of consecutive sentences. After that motion was denied, Warren sought leave to appeal in the Court of Appeals. That motion was denied, but the Michigan Supreme Court granted leave with directions for the appellate court to compare People v. Johnson, 320 N.W.2d 876 (Mich. 1982) (holding that the former court rule governing pleas, GCR 1963, 785.7, did not “require advice as to other potential sentence consequences such as consecutive sentencing”), with People v. Blanton, 894 N.W.2d 613 (Mich. 2016) (holding that the court was required to inform the defendant that he was subject to a two-year mandatory consecutive sentence for possessing a firearm during the commission of a felony, or “felony-firearm”). In a split decision, the Court of Appeals affirmed the conviction and sentence. The Michigan Supreme Court granted leave to appeal.

The Court noted Warren was released on parole on January 7, 2020, but is under supervision until January 2021. His parole status did not moot the appeal because revocation of his parole status could subject him to the remainder of his sentence.

It found that prior case law did not resolve the specific question in Warren’s case, viz., whether MCR 6.302(B)(2) requires a court to inform defendants of discretionary consecutive-sentencing authority before accepting a guilty or no-contest plea. Johnson concerned informing a defendant he or she would not be eligible for parole until the minimum sentence imposed by the court was served, undiminished by allowance for good time, special good time, or special parole. Blanton required the court to inform a defendant of “any mandatory minimum sentence required by law” before accepting a plea.

The Court noted it must resolve the question presented in the first instance. MCR 6.302(B)(2) requires that during a plea hearing the trial court inform the defendant of the “maximum possible prison sentence for the offense.” The Court found MCL 768.7b impacts the maximum sentence Warren faces. That statute’s effect “is to postpone the moment at which sentencing for one or more ‘subsequent offenses’ will commence, and ‘[t]he purpose of the statute is to deter persons accused of one crime from committing others by removing the security of concurrent sentences should conviction result on any or all of the crimes so committed,’” explained the Court.

“In the fullest light of reality, defendant’s ‘maximum possible prison sentence’ will be determined by both the durations of the sentences for each offense and their susceptibility to consecutive sentencing,” the Court instructed. In effect, this “constitutes an enhanced punishment,” according to the Court. Thus, in order for the defendant “to fully understand the consequences of a plea,” the defendant must be advised that the sentence “for a subsequent offense to which he or she is pleading guilty may not proceed immediately but rather may be delayed,” i.e., consecutive sentences are possible, the Court concluded.        

The Court further noted MCR 1.107 requires that “[w]ords used in singular also apply to the plural, where appropriate.” Accordingly, MCR 6.302(B)(2) can reasonably be read to require trial courts to inform defendants of “the maximum possible prison sentences for the offenses.”

The Court ruled “when a trial court advises a defendant of his or her ‘maximum possible prison sentence’ it must encompass not only the ‘maximum possible prison sentence’ for each individual ‘offense’ but also the ‘maximum possible prison sentence’ for the conviction of ‘offenses’ specifically as to which the trial court possesses an authority to impose consecutive sentences.”

Related legal case

People v. Warren

 

 

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