Michigan Court Of Appeals Holds No Contest Plea Invalid

On August 18, 2015, the Michigan Court of Appeals held in a criminal case that a Detroit District Court abused its discretion by accepting a defendant's no contest plea without properly informing defendant of his trial rights.

In People v Al-Shara, Docket No. 320209, the Michigan Court of Appeals addressed the issue of whether a no contest plea was valid when the District Court failed to comply with a court rule that requires judges to inform defendants on the record of their trial rights.

The Court first recited the facts of the case:

As a result of an incident with his wife at a restaurant on May 27, 2013, defendant was charged with one count of domestic violence under MCL 750.81(2). The prosecution offered defendant a plea agreement, which he accepted. Pursuant to this agreement, defendant would plead no contest to one count of domestic violence in exchange for a sentence consisting of one year of probation with credit for two months of probation already served and no jail time. It is uncontested that, on May 31, 2013, defendant signed a written “pre-trial conference summary” form detailing the terms of the plea agreement. This form, signed by defendant, also included the following waiver of defendant’s trial rights:



On May 31, 2013, the district court held a hearing, during which the parties indicated that they had come to a resolution in the case and that defendant wished to enter a no contest plea. After recounting the terms of the agreement and confirming that defendant realized the plea would constitute a violation of a previous order of probation entered in another case, the district court concluded that there was factual support for defendant’s plea in the contents of an incident report dated May 27, 2013. In terms of advising defendant of the rights he waived by entering a plea, the trial court then engaged in the following brief colloquy:

[District Court]: [Defendant,] are you giving up your Constitutional Rights to a trial by judge or jury in this case?
[Defendant]: Yes, Your Honor.
[District Court]: Is anybody forcing you into this in any way whatsoever,
[Defendant]: No, Your Honor.
[District Court]: Very well. The Court will accept the plea of no contest on 13S01020[;] we will enter a finding of a probation violation on 12S0273.

Once the district court accepted defendant’s plea, the district court immediately proceeded to sentencing and sentenced defendant in accordance with the plea agreement reached by the parties.

On August 9, 2013, defendant filed a timely motion in the district court to withdraw his plea. In relevant part, defendant asserted that he should be permitted to withdraw his plea because the trial court failed to advise defendant of his rights as required under MCR 6.610(E). According to defendant, this obvious error affected his substantial rights and merited the setting aside of his plea.

The district court disagreed and denied defendant’s motion. The district court reasoned that, based on a review of the proceedings as a whole, there was not a deviation from the court rule affecting defendant’s substantial rights that would constitute a miscarriage of justice as required to set aside defendant’s plea after conviction and sentencing under People v Ward, 459 Mich 602, 614; 594 NW2d 47 (1999), opinion corrected on denial of reh 460 Mich 1204 (1999). In reaching this conclusion, the district court characterized any deviation from the court rules as a mere “technical failure.” The district court further reasoned that defendant was not harmed by this “technical failure” because defendant signed a written form advising him of his rights, defendant was “not a stranger to court proceedings,” defendant had failed to provide an affidavit attesting to the fact that defendant actually failed to understand his rights and, in actuality, defendant’s real motivation in seeking to set aside the plea was simply to avoid the probation violation consequences arising in his other case. In these circumstances, the trial court concluded that defendant had not shown a miscarriage of justice arising from the plea proceedings and was thus not entitled to have his plea set aside.

After the district court denied defendant’s motion, defendant filed a claim of appeal in Wayne Circuit Court, again asserting that his plea should be set aside because the district court failed to comply with MCR 6.610(E). The circuit court concluded that, applying a substantial compliance standard, the plea taking process in this case was “clearly defective” because defendant had not been advised of his rights on the record and the district court had failed to reference the form signed by defendant to confirm that it had been read and understood by defendant as required by MCR 6.610(E)(4). Because the rights omitted by the district court included defendant’s constitutional rights as set forth in Boykin and Jaworski, the circuit court concluded that the plea was invalid, this error could not be corrected on remand, and that defendant was, therefore, entitled to withdraw his plea. For this reason, the circuit court vacated defendant’s plea and remanded to the district court for a trial. Following the circuit court’s decision, the prosecutor filed an application for leave to appeal in this Court, which we granted . . . .

The Court's analysis of whether the District Court erred in failing to inform defendant of all of his trial rights on the record at the plea hearing followed:

 . . . Given the plain language of MCR 6.610(E)(4), it is clear that a defendant may be advised of his rights either in writing or on the record. Either manner is sufficient. However, whatever manner is used, the rule makes plain that there must be some on the record colloquy with a defendant regarding his rights to ensure that he has been advised of those rights. That is, even if a defendant is advised of his rights in writing, the rule mandates that “the court shall address the defendant and obtain from the defendant orally on the record a statement that the rights were read and understood and a waiver of those rights.” MCR 6.610(E)(4) (emphasis added). The trial court need not necessarily reiterate each of defendant’s individual rights on the record, but it must, at a minimum, verify that defendant did in fact read and understand those rights. MCR 6.610(E)(4). In the absence of such a colloquy on the record, intelligent waiver of these important rights cannot be presumed. See Jaworski, 387 Mich at 29.

When considering whether a trial court complied with the court rules governing plea proceedings and whether any deviation entitles a defendant to reversal of his or her plea, we review the trial court’s observance of the court rules detailing the procedures for taking a plea under the doctrine of “substantial compliance.” People v Saffold, 465 Mich 268, 273; 631 NW2d 320 (2001). Under this doctrine, literal or “talismanic” compliance with the court rules is not required. See id. at 280; In re Guilty Plea Cases, 395 Mich 96, 124; 235 NW2d 132 (1975). Instead, reviewing courts consider the record to determine whether “the judge informed the defendant of the constitutional and other rights delineated in the rule in such manner as reasonably to warrant the conclusion that the defendant understood what a trial is and that by pleading guilty he was knowingly giving up his right to a trial and the rights and incidents of a trial.” In re Guilty Plea Cases, 395 Mich at 124. When applying this standard, there must, however, be consideration of the preeminence given the Jaworski rights, and it remains the rule in Michigan that failure to advise a defendant of his Jaworski rights during the plea proceedings mandates automatic reversal and the setting aside of the plea. See Saffold, 465 Mich at 273, citing Jaworski, 387 Mich at 21; People v Plumaj, 284 Mich App 645, 650; 773 NW2d 763 (2009). Omission of a Jaworski right requires automatic reversal because a valid waiver of these important Jaworski rights cannot be presumed from a silent record, Jaworski, 387 Mich at 29, and this type of “Jaworski defect cannot be corrected on a remand,” In re Guilty Plea Cases, 395 Mich at 121. Consequently, when considering the plea proceedings, “[t]o determine if there was substantial compliance with the court rule, the first question is whether the right omitted or misstated is a ‘Jaworski right.’” Saffold, 465 Mich at 273.

If a Jaworski right is omitted from the plea proceedings, then reversal is mandated. However, the omission from the plea proceedings of one or another of the rights attendant to a trial, other than a Jaworski right, or the imprecise recital of any such right, including a Jaworski right, does not necessarily require reversal. [Saffold, 465 Mich at 273-274.]

In this case, defendant’s Jaworski rights are clearly implicated. At the plea hearing, the district court appropriately referenced defendant’s right to a jury trial but wholly failed to inform defendant of his right to remain silent and his right to confront his accusers. See MCR 6.610(E)(3)(b). The district court also failed to make any reference to defendant’s execution of a written advice of rights or to verify that defendant actually read and understood the rights imparted on the form he signed. See MCR 6.610(E)(4). Moreover, these rights were not mentioned by anyone else on the record in the hearing of the district court and defendant. See Saffold, 465 Mich at 278-280; In re Guilty Plea Cases, 395 Mich at 114-115, 122. Given this total omission of two of the three Jaworski rights from the record of the plea proceedings, it follows that defendant is automatically entitled to set aside his plea. See Saffold, 465 Mich at 273-274, 281; Jaworski, 387 Mich at 31.

In contrast to this conclusion, the prosecutor maintains that defendant’s uncontested signature on a written form advising him of these rights should be held to satisfy the “substantial compliance” standard with respect to MCR 6.610(E)(4) such that defendant should not be automatically entitled to set aside his plea. The obvious flaw with this “substantial compliance” argument is that it would in effect obviate the requirement that the court reference defendant’s Jaworski rights on the record in some manner—either by enumerating those rights on the record or by verifying that defendant read a written advice of rights—in order to make sure that those rights were in fact read and understood by defendant. In other words, under MCR 6.610(E)(4), if a written form is used to inform a defendant of his or her rights, there are two mandatory requirements under the court rules: (1) a writing detailing the rights in question and (2) an oral colloquy regarding that writing on the record. When a court completely abdicates its obligation to personally discuss the writing with a defendant on the record, and the rights contained in the writing are not otherwise imparted to a defendant on the record during the plea proceedings, we fail to see how the district court can be said to have “substantially complied” with MCR 6.610(E)(4). In these circumstances, the issue is not one of wording or phraseology with respect to Jaworski rights to which substantial compliance applies, see, e.g., In re Guilty Plea Cases, 395 Mich at 124, but rather omission, insofar as, by failing to enumerate defendant’s rights or, in lieu of itemizing those rights, to reference the form executed by defendant, the trial court wholly failed to apprise defendant of his Jaworski rights at the plea proceedings.

For similar reasons, in contrast to the prosecutor and the district court, we cannot excuse the district court’s failure in this respect as merely an unimportant technical defect that does not entitle defendant to relief. The requirement that the court personally address the defendant on the record regarding the waiver of trial rights is not a meaningless formality. Rather, the court’s obligation to assume the principal role of imparting the required information is a central component of the plea taking process, and it serves a number of important purposes. See In re Guilty Plea Cases, 395 Mich at 114. It preserves the integrity the process by which pleas are offered and creates a clear record for appellate review, it provides the trial court with an opportunity to observe defendant’s demeanor and response to the imparted information thereby facilitating the trial court’s assessment of defendant’s understanding, and it serves to impress upon a defendant the gravity and import of his plea at “the solemn moment of passage from presumed innocence to conviction.” Id. at 114, 120-122; Jaworski, 387 Mich at 31; Napier, 69 Mich App at 48-49. As more fully articulated by In re Guilty Plea Cases, 395 Mich at 114:

That a defendant may have been tried by a jury in another case or learned of his rights in an earlier plea-taking proceeding would no more negate his right to be informed of the right to and incidents of a trial at the time a plea of guilty is offered than would proof that he had seen Perry Mason on television or read Erle Stanley Gardner.

Many defendants have been made aware at one time or another of the right to and incidents of a trial and the consequences of a plea of guilty. Nevertheless, whatever the personal history of the accused and the quality of his representation, the appearance of justice and the integrity of the process by which pleas of guilty are offered and accepted require, in the solemn moment of passage from presumed innocence to conviction and potential imprisonment, that the judge apprise every defendant of the rights he is waiving and consequences of his plea and make the other determinations required by the rule.

In this solemn context, a written advice of rights on its own—signed by a defendant off the record, outside of the court’s presence, and unreferenced by the court, or anyone else, during the plea hearing—cannot satisfy, substantially or otherwise, a trial court’s obligation under MCR 6.610(E)(4) to ensure that defendant’s plea is understandingly and voluntarily made with knowledge of his or her Jaworski rights. Thus, even when a written advice of rights form has been signed by a defendant, there cannot be a total omission of any reference during the in-court proceedings to either the enumerated rights in question or the form itself signed by defendant off the record. See Saffold, 465 Mich at 280. Moreover, when the rights implicated by these procedures include a defendant’s Jaworski rights, a defendant is automatically entitled to set aside his or her plea when reference to those rights, either through express enumeration of those rights or reference to the written document, is omitted from the in-court plea proceedings. See Saffold, 465 Mich at 273-274, 281; Jaworski, 387 Mich at 31; People v Lee, 112 Mich App 194, 195-196; 315 NW2d 896 (1982).

Consequently, in this case, because the district court failed to substantially comply with the court rules and the deviation in question implicated defendant’s Jaworski rights, defendant was automatically entitled to set aside his plea. The district court therefore abused its discretion by denying defendant’s motion to set aside his plea. For this reason, we affirm the circuit court’s order reversing the district court and remanding for a trial . . . .