Opinion
No. 306577
01-28-2014
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. KENNETH KELLEY, Defendant-Appellant.
UNPUBLISHED
Wayne Circuit Court
LC No. 11-004376-FC
Before: WILDER, P.J., and STEPHENS and RONAYNE KRAUSE, JJ. PER CURIAM.
Defendant appeals as of right his jury trial convictions of assault with intent to do great bodily harm less than murder, MCL 750.84, armed robbery, MCL 750.529, felon in possession of a firearm, MCL 750.224f, intentional discharge of a firearm at a dwelling or occupied structure, MCL 750.234b, possession of a firearm at the time of commission or attempted commission of a felony (felony-firearm), MCL 750.227. Defendant was sentenced as a second habitual offender, MCL 769.10, to 5 to 10 years' imprisonment for assault with intent to do great bodily harm less than murder, second offense, 20 to 30 years' imprisonment for armed robbery, two years and six months to five years' imprisonment for felon in possession of a firearm, two to four years' imprisonment for intentional discharge of a firearm at a dwelling or occupied structure, and two years' imprisonment for felony-firearm. We affirm.
I. BACKGROUND
The underlying facts supporting defendant's convictions are not relevant for the issues on appeal; thus, they will not be discussed. However, some of the procedural history is important.
On July 19, 2011, defendant entered into a plea agreement. The plea agreement required defendant to plead guilty to count I, assault with intent to do great bodily harm less than murder, MCL 750.84, count II, armed robbery, MCL 750.529, and count VI, felony-firearm, MCL 750.227b(1). In exchange, the prosecution would drop the habitual offender status and dismiss the remaining counts of felon in possession of a firearm, discharge of a firearm at a building, and felonious assault.
Defendant repeatedly asserted that he understood the plea and desired to accept the deal. During his allocution, defendant indicated that he hit the victim in the head, shot him while intending to seriously injure him, and stole the victim's coat. After which, the trial court accepted his plea.
Before defendant's sentencing hearing, however, defendant sent the trial court a letter requesting that he be allowed to withdraw his guilty plea. The letter stated the following:
I want to see if I can withdraw my plea because I didn't understand. My lawyer told me that [sic] to take the plea for 14 mounths [sic].
I have a learn[ing] problem[;] please I want to go to trial. I have people to say that I was[n't] in town when this happened. I got rob[bed] for my coat and my state [identification] was in my coat[;] that's [wh]y he's saying that it was me. I had got [sic] rob[bed] for my car and in front [of] my house and they shot thr[e]w my house[,] took my coat and 800 dollar[s]. . . . I never shot nobody or rob[bed]. I never knew this man.
The trial court noted that defendant was attempting to withdraw his plea pursuant to MCR 6.310(B), which controls when a defendant wishes to withdraw a plea after it was accepted but before sentencing. The following exchange took place when the trial court asked defendant about withdrawing his plea:
THE COURT: You want to withdraw your plea, right?
[Defendant]: I'm innocent but I will take it.
THE COURT: No, no, no, no. Listen, listen, listen[.]
[Defendant:] I will take it I'm guilty. I will take it. I will take 14.
[Defense counsel and defendant confer.]
THE COURT: Mr. Kelley.
[Defendant]: I want to take the 14.
THE COURT: Sorry[?]
[Defendant]: I want to take the 14 years.
[Trial court explains the sentencing ramifications to defendant.]
THE COURT: So you got to tell me what you want to do.
[Defendant]: I just told you, sir.
[Defense Counsel]: Tell him again.
[Defendant]: I will take the 14.
[Defense Counsel]: Okay.
[Defendant]: This ain't right at all. I'm taking the 14 I'm innocent, I'm innocent.
[THE COURT:] Your motion to withdraw your plea [is] granted.
[Emphasis added.]
The transcript incorrectly attributed this statement to the trial court.
The transcript incorrectly attributed this statement to defendant.
A four-day jury trial ensued, and defendant now appeals from his jury convictions.
II. WITHDRAWAL OF GUILTY PLEA
Defendant argues that, pursuant to MCR 6.310(B)(1), the trial court erred when it vacated defendant's accepted plea agreement absent defendant's consent. We disagree.
We review a trial court's ruling on a motion to withdraw a plea for an abuse of discretion. People v Brown, 492 Mich 684, 688; 822 NW2d 208 (2012). "A trial court abuses its discretion when it selects an outcome that does not fall within the range of reasonable and principled outcomes." People v Young, 276 Mich App 446, 448; 740 NW2d 347 (2007).
We disagree with the prosecution's view that the plain error standard applies. It is clear that the trial court treated defendant's letter as a pro se motion to withdraw his plea and, in fact, granted that motion. Thus, the issue is preserved. See People v Metamora Water Serv, Inc, 276 Mich App 376, 382; 741 NW2d 61 (2007) (noting that for an issue to be preserved, it must be raised, addressed, and decided by the lower court).
MCR 6.310(B)(1) provides:
[A] plea may be withdrawn on the defendant's motion or with the defendant's consent only in the interest of justice, and may not be withdrawn if withdrawal of the plea would substantially prejudice the prosecutor because of reliance on the plea. [Emphasis added.]Therefore, pursuant to MCR 6.310(B)(1), the trial court may withdraw an accepted plea either on defendant's motion or with defendant's consent, as long as the withdrawal was in the interests of justice and would not substantially prejudice the prosecution. Here, all of the requirements were met.
First, defendant's letter to the trial court is properly construed as a pro se motion to withdraw his plea. Defendant argued to this Court at oral argument that the trial court was prohibited from considering the pro se motion because defendant was represented by counsel at the time, thereby violating the established prohibition on "dual-representation." However, defendant never provided any authority to this Court supporting his position that a trial court must ignore pro se motions on behalf of defendants who are also represented by counsel. An appellant may not "announce a position or assert an error and then leave it up to this Court to discover and rationalize the basis for his claims . . . and then search for authority either to sustain or reject his position." People v Kevorkian, 248 Mich App 373, 389; 639 NW2d 291 (2001). In any event, our review of the case law shows that the well-established prohibition of "dual-representation" addresses whether a defendant has the right to "hybrid representation." Hybrid representation involves a defendant's declaration that he or she desires to represent himself, while simultaneously requesting the court to appoint stand-by counsel in order to lend assistance in the self-representation. This Court and our Supreme Court have made it clear that there is no constitutional right to appointed stand-by counsel. People v Dennany, 445 Mich 412, 442; 519 NW2d 128 (1994); People v Hicks, 259 Mich App 518, 527; 675 NW2d 599 (2003); Kevorkian, 248 Mich App at 420. The fact that there is no constitutional right to hybrid representation, however, has no application to whether the trial court was required to reject defendant's pro se motion.
MCR 2.119(A)(1) provides, in part, that "a motion must (a) be in writing, (b) state with particularity the grounds and authority on which it is based, (c) state the relief or order sought, and (d) be signed by the party or attorney as provided in MCR 2.114." Defendant's letter to the trial court fulfills these requirements for a motion because the letter (1) was in his own handwriting, (2) stated that defendant did not shoot the victim, (3) stated that defendant wanted to withdraw his plea, and (4) was signed by defendant. Further, there is no question that the trial court treated the letter as a motion because when it vacated the guilty plea, it stated, "Your motion to withdraw your guilty plea [is] granted."
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Second, the prosecution denied that there would be prejudice resulting from defendant's withdrawal of his guilty plea, and therefore, the prejudice element in MCR 6.310(B)(1) was satisfied as well.
Finally, defendant's statements to the trial court established that the withdrawal was "in the interest of justice." This Court has explained that in order to support this requirement, a "defendant has to articulate 'a fair and just reason' for withdrawing the plea," where "[f]air and just reasons include reasons like a claim of actual innocence." People v Fonville, 291 Mich App 363, 377-378; 804 NW2d 878 (2011). Here, defendant repeatedly told the trial court that he was "innocent." The fact that he continued to express a willingness to be sentenced in accordance with his plea agreement does not discount the fact that he did profess his innocence.
We reiterate that our review of the trial court's decision to set aside the plea is for an abuse of discretion. Brown, 492 Mich at 688. We reject defendant's argument here that, after the long exchange between the trial court and defendant had concluded with defendant's statement that "[t]his ain't right at all. I'm taking the 14 I'm innocent, I'm innocent," the trial court acted unreasonably by granting defendant's motion to withdraw the plea. Defendant's reliance on People v Strong, 213 Mich App 107; 539 NW2d 736 (1995) is misplaced. In Strong, the trial court sua sponte vacated the defendant's guilty plea under MCR 6.310(B). Id. at 110. This Court reversed because the "it [was] clear that [the] defendant neither moved to withdraw his plea nor consented to its withdrawal," contrary to MCR 6.310(B). Id. at 112. Strong is plainly distinguishable and therefore not applicable because, unlike in Strong, defendant here did move to withdraw his plea, and all of the requirements of MCR 6.310(B) were satisfied.
Therefore, after reviewing the record in its entirety, we conclude that the trial court's decision to vacate defendant's guilty plea did not fall outside the range of principled outcomes, and defendant's claim fails.
III. JURY'S REQUEST FOR TRANSCRIPTS
Defendant next argues that the trial court erred when it foreclosed the jury from having an opportunity to review transcripts of all the witnesses at trial. We conclude that defendant has waived this issue.
During jury deliberations, the jury asked the trial court for the "transcripts of the testimony" of four different witnesses. The trial court responded that the jurors were instead "to rely upon [their] collective and individual memories, as well as [their individual] notes." After the jury was excused, the trial court asked whether there were "any objections or corrections to what the Court imparted to the jury?" Defense counsel replied, "I have none, your Honor." This constituted waiver.
"Waiver has been defined as the intentional relinquishment or abandonment of a known right." People v Carter, 462 Mich 206, 215; 612 NW2d 144 (2000) (internal quotation marks omitted). In Carter, the Supreme Court found that the defendant had waived a jury-instruction issue because defense counsel "expressed satisfaction with the trial court's decision." Id. Defense counsel in the present case similarly expressed satisfaction with the trial court's instruction, which results in the issue being waived.
Affirmed.
Kurtis T. Wilder
Cynthia Diane Stephens