Effective assistance of counsel at the pretrial stage.

In People v Douglas, __ Mich App __ (#301654, 4/12/2012) the defendant argued that he was denied the effective assistance of counsel at the pretrial stage of the proceeding because counsel failed to inform him that he would be subject to a 25-year mandatory minimum sentence if he was convicted of first-degree CSC and because counsel erroneously advised him that he would not be able to live with his children if he was required to register as a sex offender pursuant to the Sex Offenders Registration Act (SORA), MCL 28.721 et seq.   On appeal the Court of Appeals agreed that counsel’s performance was constitutionally deficient, prejudiced defendant and thereby reversed his convictions for criminal sexual conduct.

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A defendant’s Sixth Amendment right to counsel extends to the plea-bargaining process. Lafler v Cooper, 566 US ___; ___ S Ct ___ (2012), slip op at 5. An ineffective assistance of counsel claim may be based on counsel’s failure to properly inform the defendant of the consequences of accepting or rejecting a plea offer. Hill v Lockhart, 474 US 52, 58 (1985). As for ineffective assistance of counsel claims generally, where a defendant’s claim is based on counsel’s failure to properly advise the defendant with respect to a plea offer, the defendant must show that his attorney’s performance “‘fell below an objective standard of reasonableness’” and that “‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’” Padilla v Kentucky, ___ US ___; 130 S Ct 1473, 1481-1482 (2010), quoting Strickland v Washington, 466 US 668, 688, 694 (1984). “In the context of pleas[,] a defendant must show the outcome of the plea process would have been different with competent advice.” Lafler, 566 US at ___, slip op at 5. Counsel’s assistance must be sufficient to enable the defendant the defendant “to make an informed and voluntary choice between trial and a guilty plea.” People v Corteway, 212 Mich App 442, 446 (1995).

In this case counsel’s failure to inform defendant that he would receive a 25-year mandatory minimum sentence if the jury convicted him of first-degree CSC fell below an objective standard of reasonableness. Padilla, 130 S Ct at 1482.  MCL 750.520b(2)(b) clearly provides for a mandatory 25-year minimum sentence for a violation “committed by an individual 17 years of age or older against an individual less than 13 years of age[.]” Thus, counsel’s advice to defendant that he could face up to a 20-year sentence, but that he would most likely be sentenced to a minimum term between five and eight years in accordance with the sentencing guidelines, was erroneous. Moreover, the information regarding the mandatory minimum sentence was essential to enable defendant to make an informed decision whether to accept the prosecution’s plea offer or proceed with trial. Corteway, 212 Mich App at 446.

In Lafler, 566 US at ___, slip op at 5, the Court articulated the standard that a defendant must establish in order to demonstrate prejudice in cases in which counsel’s ineffective advice led the defendant to reject a plea offer and proceed to trial. The Court stated: In these circumstances a defendant must show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), 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 judgment and sentence that in fact were imposed.

In this case counsel’s erroneous advice prejudiced defendant. On the morning of trial, the prosecution offered defendant the option of pleading guilty to fourth-degree CSC. Defense counsel advised defendant that, if he accepted the offer, the worst sentence that he could receive was ten months in jail with the requirement that he register as a sex offender. Counsel testified at the Ginther hearing that if he had known that first-degree CSC carried a mandatory 25-year minimum sentence, he “would have absolutely pressed [defendant] and insisted that he take the deal.” Moreover, defendant testified that, had his attorney advised him of the 25-year mandatory minimum sentence, he would have taken the plea offer because “[a] 25-year minimum is a lot different than the possibility of not going to prison.” Defendant maintained that he would have accepted the plea offer even if doing so meant that he would have been permitted very little or no contact with his children. According to defendant, counsel erroneously advised him that he would not be permitted to reside with his children for as long as he was required to register as a sex offender. Defendant testified that he did not learn until after trial that the SORA would not have prohibited him from residing with his children and that counsel’s misinformation regarding  

In Lafler, supra, the Court stated that if a plea bargain has been offered, a defendant has the right to effective assistance of counsel in considering whether to accept it. 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. [Lafler, 566 US at ___, slip op at 8.]

Although the trial court determined that no error occurred because defendant was aware of the possibility that he could be sentenced to a 20-year term, there is a significant difference between the possibility of a 20- year term, but the likelihood of serving a much shorter sentence, and the certainty of serving a 25-year minimum term. Defendant has thus shown that the offer was valid, that he would have accepted the offer, and that his conviction and sentence would have been much less severe than the convictions and sentences imposed after trial. Therefore, defendant has established that counsel’s failure to inform him of the actual consequences of accepting or rejecting the plea offer prejudiced him. Lafler, 566 US at ___, slip op at 5. Having concluded that defendant satisfied both prongs of the Strickland test, we must now determine the appropriate remedy. In doing so, we note that the circumstances of this case are very similar to those in Lafler. In Lafler, 566 US at ___, slip op at 3, the respondent rejected two plea offers on the basis of defense counsel’s erroneous advice and was convicted following trial. The parties agreed that counsel’s performance was constitutionally deficient, and the respondent established the requisite prejudice. Id. at 5, 12. The Court noted that “Sixth Amendment remedies should be ‘tailored to the injury suffered from the constitutional violation’” and “must ‘neutralize the taint’ of a constitutional violation[.]” Id. at 10, quoting United States v Morrison, 449 US 361, 364-365 (1981). The Court concluded: The correct remedy in these circumstances . . . is to order the State to reoffer the plea agreement. Presuming respondent accepts the offer, the state trial court can then exercise its discretion in determining whether to vacate the convictions and resentence respondent pursuant to the plea agreement, to vacate only some of the convictions and resentence respondent accordingly, or to leave the convictions and sentence from trial undisturbed. See Mich Ct Rule 6.302(C)(3) (2011) (“If there is a plea agreement and its terms provide for the defendant’s plea to be made in exchange for a specific sentence disposition or a prosecutorial sentence recommendation, the court may . . . reject the agreement”).  Today’s decision leaves open to the trial court how best to exercise that discretion in all the circumstances of the case. [Lafler, 566 US at ___, slip op at 12.]  In People v Fonville, 291 Mich App 363, 394-395(2011), this Court held that defense counsel’s representation was constitutionally defective because counsel failed to advise the defendant that pleading guilty would require him to register as a sex offender pursuant to the SORA. Here, although defense counsel advised defendant that he would be required to register as a sex offender, counsel erroneously informed defendant that his registration would preclude him from living with his children for the duration of his registry, or 20 years. The instant case differs from Lafler in one material respect. In this case, defendant was denied the effective assistance of counsel at both the plea bargain and trial stages of the proceeding.  Accordingly, taking this circumstance into consideration, we vacate defendant’s convictions and sentences and remand to the trial court for the prosecution to reinstate its plea offer made immediately before trial. If defendant refuses to accept the plea offer, he is entitled to a new trial.