Ineffective assistance of counsel leading to loss of an opportunity to accept a plea bargain

In Missouri v Frye, __ US __ (#10-44, 3/21/2012) the United States Supreme Court held that if a plea bargain has been offered, a defendant has the right to be informed of the offer. If that right is denied, prejudice can be shown if loss of the plea opportunity led to a trial resulting in a conviction on more serious charges or the imposition of a more severe sentence.  If a defendant shows ineffective assistance of counsel has caused the rejection of a plea leading to a trial and a more severe sentence, the question then is what constitutes an appropriate remedy.

In Lafler v Cooper, __ US __ (#10-209, 3/21/2012) the United States Supreme Court held that where counsel’s ineffective advice led to an offer’s rejection, and where the prejudice alleged is having to stand trial, a defendant must show that but for the ineffective advice, there is a reasonable probability that the plea offer would have been presented to the court, that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the actual judgment and sentence imposed.

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Sixth Amendment remedies should be “tailored to the injury suffered from the constitutional violation and should not unnecessarily infringe on competing interests.” United States v. Morrison, 449 U. S. 361, 364 (1981).Thus, a remedy must “neutralize the taint” of a constitutional violation, id., at 365, while at the same time not grant a windfall to the defendant or needlessly squander the considerable resources the State properly invested in the criminal prosecution. See Mechanik, 475 U. S., at 72 (“The reversal of a conviction entails substantial social costs: it forces jurors, witnesses, courts, the prosecution, and the defendants to expend further time, energy, and other resources to repeat a trial that has already once taken place; victims may be asked to relive their disturbing experiences”).

The specific injury suffered by defendants who decline a plea offer as a result of ineffective assistance of counsel and then receive a greater sentence as a result of trial can come in at least one of two forms. In some cases, the sole advantage a defendant would have received under the plea is a lesser sentence. This is typically the case when the charges that would have been admitted as part of the plea bargain are the same as the charges the defendant was convicted of after trial. In this situation the court may conduct an evidentiary hearing to determine whether the defendant has shown a reasonable probability that but for counsel’s errors he would have accepted the plea. If the showing is made, the court may exercise discretion in determining whether the defendant should receive the term of imprisonment the government offered in the plea, the sentence he received at trial, or something in between.

In some situations it may be that resentencing alone will not be full redress for the constitutional injury. If, for example, an offer was for a guilty plea to a count or counts less serious than the ones for which a defendant was convicted after trial, or if a mandatory sentence confines a judge’s sentencing discretion after trial, a resentencing based on the conviction at trial may not suffice. See, e.g., Williams, 571 F. 3d, at 1088; Riggs v. Fairman, 399 F. 3d 1179, 1181 (CA9 2005). In these circumstances, the proper exercise of discretion to remedy the constitutional injury may be to require the prosecution to reoffer the plea proposal. Once this has occurred, the judge can then exercise discretion in deciding whether to vacate the conviction from trial and accept the plea or leave the conviction undisturbed.

In implementing a remedy in both of these situations, the trial court must weigh various factors; and the boundaries of proper discretion need not be defined here. Principles elaborated over time in decisions of state and federal courts, and in statutes and rules, will serve to give more complete guidance as to the factors that should bear upon the exercise of the judge’s discretion. At this point, however, it suffices to note two considerations that are of relevance.  First, a court may take account of a defendant’s earlier expressed willingness, or unwillingness, to accept responsibility for his or her actions. Second, it is not necessary here to decide as a constitutional rule that a judge is required to prescind (that is to say disregard) any information concerning the crime that was discovered after the plea offer was made. The time continuum makes it difficult to restore the defendant and the prosecution to the precise positions they occupied prior to the rejection of the plea offer, but that baseline can be consulted in finding a remedy that does not require the prosecution to incur the expense of conducting a new trial.

Change in Domicile, and Pierron v Pierron, 486 Mich 81 (2010)

In Gagnon v Glowacki, __ Mich App __ (#303449, 3/6/2012) the Court of Appeals concluded that the trial court did not abuse its discretion in granting the plaintiff-mother's motion to change the child's domicile to Windsor, Ontario. Further, the court held that trial court did not err in concluding that the Established Custodial Environment would not be affected. Thus, the trial court was not required to determine if a preponderance of the evidence established that the move was in the best interests of the child. (The parties have joint legal and joint physical custody but the child lives primarily with the plaintiff-mother.)

A parent of a child, whose custody is governed by court order, shall not change a legal residence of the child to a location that is more than 100 miles from the child’s legal residence at the time of the commencement of the action in which the order is issued without court approval. MCL 722.31(1). A court may permit a change in legal residence upon considering the following factors:

(a) Whether the legal residence change has the capacity to improve the quality of life for both the child and the relocating parent.

(b) The degree to which each parent has complied with, and utilized his or her time under, a court order governing parenting time with the child, and whether the parent’s plan to change the child’s legal residence is inspired by that parent’s desire to defeat or frustrate the parenting time schedule.

(c) The degree to which the court is satisfied that, if the court permits the legal residence change, it is possible to order a modification of the parenting time schedule and other arrangements governing the child’s schedule in a manner that can provide an adequate basis for preserving and fostering the parental relationship between the child and each parent; and whether each parent is likely to comply with the modification.

(d) The extent to which the parent opposing the legal residence change is motivated by a desire to secure a financial advantage with respect to a support

obligation.

(e) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.

The party requesting the change of domicile has the burden of establishing by a preponderance of the evidence that the change is warranted.” McKimmy, 291 Mich App at 582. MCL 722.31(4) requires the trial court to consider the factors “with the child as the primary focus in the court’s deliberations. On its face, MCL 722.31 is only applicable when a parent attempts to change the domicile of a child to a location that is over 100 miles away. However, when a child’s custody is governed by a court order that prohibits the child from moving to another state without the permission of the court, as is the case here, regardless of the distance involved, if the proposed residence change involves leaving the state, then the factors under MCL 722.31(4) are the proper criteria for the court to consider.

With regard to MCL 722.31(4)(a), this Court has stated that “[i]t is well established that the relocating parent’s increased earning potential may improve a child’s quality of life.” Rittershaus v Rittershaus, 273 Mich App 462 (2007).  With regard to MCL 722.31(4)(b), although weekday parenting time may, in fact, be more difficult after the move, it may not necessarily contravene a finding that it is not a party’s intent to disrupt the other parent’s parenting time. This factor also involves a credibility determination, with deference to the trial court.  With regard to MCL 722.31(4)(c), providing a parent with additional parenting time, even if other parenting time is negatively affected, can provide an adequate basis for preserving and fostering the parental relationship between the other parent and the child. This could even give the other parent additional extended time, which could foster an even closer parent-child relationship. In addition, a  history of cooperation regarding parenting time suggests that the parents would comply with the modified order. Moreover, plaintiff’s willingness to subject herself to the jurisdiction of the court could be able to ensure compliance with its orders. See Brausch v Brausch, 282 Mich App 339 (2009). The inquiry is “whether the proposed parenting time schedule provides ‘a realistic opportunity to preserve and foster the parental relationship previously enjoyed’ by the nonrelocating parent.” McKimmy, 291 Mich App at 584, quoting Mogle, 241 Mich App at 204.  Furthermore, “the visitation plan need not be equal to the prior visitation plan in all respects.” Brown, 260 Mich App at 603.

Established Custodial Environment

After granting a change of domicile, the trial court must determine whether there will be a change in the established custodial environment and, if so, determine whether the relocating parent can prove, by clear and convincing evidence, the change is in the child’s best interest.

According to MCL 722.27(1)(c), [t]he custodial environment of a child is established if over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort. The age of the child, the physical environment, and the inclination of the custodian and the child as to permanency of the relationship should also be considered. As used in this act, “best interests of the child” means the sum total of the following factors to be considered, evaluated, and determined by the court: (a) The love, affection, and other emotional ties existing between the parties involved and the child. (b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any. (c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs. (d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity. (e) The permanence, as a family unit, of the existing or proposed custodial home or homes. (f) The moral fitness of the parties involved. (g) The mental and physical health of the parties involved. (h) The home, school, and community record of the child. (i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference. (j) The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents. (k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child. (l) Any other factor considered by the court to be relevant to a particular child custody dispute.

In Brown, this Court noted that it is possible to have a change of domicile without changing the established custodial environment. Id. at 596.  An established custodial environment with both parents need not change the established custodial environment if defendant were given an additional weekend per month and he were allowed to maintain his current parenting time if desired.  If, however, the move were to render defendant a weekend-only parent, a change in the established custodial environment would result. Powery v Wells, 278.

Pierron v Pierron, 486 Mich 81 (2010)

If there would be no change in the established custodial environment, the trial court is not required to determine whether plaintiff proved, by clear and convincing evidence, the move was in the best interest of the child. See Brown, 260 Mich App at 590-591. Defendant’s reliance on Pierron v Pierron, 486 Mich 81 (2010), is misplaced. Pierron did not specifically address a change of domicile under MCL 722.31. Instead, the Pierron Court was confronted with a situation where the parents, who had joint legal custody, could not agree regarding “an important decision affecting the welfare of the child.”  In such instances, the parent is required to prove by a preponderance of the evidence that the proposed change of schools would be in the best interests of the children, using the best-interest factors identified in MCL 722.23.” Pierron, 486 Mich at 89-90.

This Court has repeatedly held that if a movant can establish that a relocation of domicile under MCL 722.31 is warranted by a preponderance of the evidence and the relocation would not alter any established custodial environment, then no best-interest analysis is necessary. E.g., Spires v Bergman, 276 Mich App 432, 437 n 1 (2007) (“Only when the parents share joint physical custody and the proposed change of domicile would also constitute a change in the child’s established custodial environment is it also necessary to evaluate whether the change of domicile would be in the child’s best interest.”); Rittershaus, 273 Mich App at 470, 471.  The trial court is not required to consider the best-interest factors until it first determines that the modification actually changes the children’s established custodial environment.”; Brown, 260 Mich App at 598 n 7 (stating that only when “the relocation would result in a change in parenting time so great as to necessarily change the established custodial environment that an inquiry into the best interest factors is necessary.”). Nowhere in Pierron, did the Court explicitly overrule or modify any of this Court’s prior published opinions. Thus, Pierron differed from the present case in that it did not involve a change of domicile analysis under MCL 722.31(4) but, rather, focused on the general procedure put in place to resolve an impasse when parents cannot decide on important decisions affecting the welfare of the child. Pierron, 486 Mich at 85, citing MCL 722.25 and Lombardo v Lombardo, 202 Mich App 151 (1993). We find that the situation presented in a change of domicile case under MCL 722.31 is distinguishable from where two parents cannot agree on an important decision affecting a child’s welfare. In the former, the decision involves more than the child – it also necessarily directly impacts the relocating parent. Furthermore, there is a specific statute outlining the requirements necessary to grant a change of domicile.  Conversely, the general provision of MCL 722.25 does explicitly reference the “best interests of the child.” But, as our Supreme Court has stated, “[W]here a statute contains a general provision and a specific provision, the specific provision controls.” Duffy v Mich Dep’t of Natural Res, 490 Mich 198, 215 (2011). If the Legislature intended for the best-interest factors of MCL 722.21 to be evaluated in a change of domicile case, it easily could have done so. Instead, it limited the analysis to the factors enumerated in MCL 722.31(4).