People of Michigan v. Jared Cash Butterfield ( 2022 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
June 16, 2022
Plaintiff-Appellee,
v No. 356336
Kalkaska Circuit Court
JARED CASH BUTTERFIELD, LC No. 20-004432-FH
Defendant-Appellant.
Before: GLEICHER, C.J., and SAWYER and GARRETT, JJ.
PER CURIAM.
The prosecution charged Jared Cash Butterfield with assault with intent to do great bodily
harm less than murder (AWIGBH), MCL 750.84, and notified him that he was subject to a 25-year
mandatory minimum sentence under MCL 769.12(1)(a) as a fourth-offense habitual offender. In
exchange for dismissal of the habitual offender enhancement, Butterfield pleaded guilty to
AWIGBH. At sentencing, Butterfield waived his right to counsel, and the trial court sentenced
him to serve 27 to 120 months of imprisonment. He later moved to withdraw his plea, contending
that the enhancement did not apply, and sought resentencing, arguing that his waiver of counsel
was invalid.
The trial court agreed that Butterfield was never eligible for the 25-year mandatory
minimum sentence, but otherwise denied the motion. We conclude that Butterfield’s plea was not
understandingly and voluntarily made, and that he did not validly waive his right to counsel at
sentencing. We vacate the trial court’s order denying Butterfield’s motions to withdraw his guilty
plea and for resentencing and remand for proceedings consistent with this opinion.
I. BACKGROUND FACTS AND PROCEDURAL HISTORY
Butterfield allegedly assaulted his girlfriend by choking her until she was unconscious and
was charged with AWIGBH. The charging documents averred that Butterfield was a fourth-
offense habitual offender, subject to a 25-year mandatory minimum sentence under MCL
769.12(1)(a). At a plea hearing, Butterfield inquired about the details of the prosecution’s plea
offer. The prosecution confirmed that “if [Butterfield] is willing to plead today, he would plead
-1-
guilty as charged to count one [AWIGBH] and we would drop the habitual.” Butterfield pleaded
guilty, and the trial court accepted his plea.
At sentencing, Butterfield requested to represent himself after his retained counsel had
withdrawn from the case. After a short colloquy, the trial court found that Butterfield knowingly
and voluntarily waived his right to counsel. The court sentenced Butterfield to 27 to 120 months
of imprisonment for the AWIGBH conviction.1
Approximately six months later, Butterfield moved to withdraw his plea or for
resentencing. The motion alleged that Butterfield’s guilty plea was illusory, coerced, and
involuntary because he pleaded guilty to avoid a mandatory minimum sentence that did not apply
to him. Alternatively, he claimed that he was denied the effective assistance of counsel during
plea negotiations because his attorney told him that he would avoid the mandatory minimum
sentence and instead receive a jail sentence. Butterfield also sought resentencing because the trial
court did not comply with the proper procedures to allow self-representation at sentencing and
misscored the sentencing guidelines. At a hearing on the motion, the prosecution conceded that
the felony information erroneously included the 25-year mandatory minimum enhancement but
claimed that Butterfield qualified for a different fourth-offense habitual offender enhancement,
which subjected him to the possibility of life imprisonment. See MCL 769.12(1)(b). The trial
court denied Butterfield’s motion in all respects. This appeal followed by delayed leave granted.2
II. MOTION TO WITHDRAW PLEA
Butterfield argues that the trial court erred by denying his motion to withdraw his guilty
plea. We review a trial court’s decision regarding a motion to withdraw a plea for an abuse of
discretion. People v Cole, 491 Mich 325, 329; 817 NW2d 497 (2012). “An abuse of discretion
occurs when the trial court’s decision is outside the range of principled outcomes.” People v
Martinez, 307 Mich App 641, 646; 861 NW2d 905 (2014) (quotation marks and citation omitted).
This case also involves the application of MCR 6.302, which governs guilty plea proceedings.
“The proper interpretation and application of a court rule is a question of law that is reviewed de
novo.” Cole, 491 Mich at 330. De novo review means that “we review the issues independently,
with no required deference to the trial court.” People v Beck, 504 Mich 605, 618; 939 NW2d 213
(2019). Finally, to the extent that the trial court made any factual findings, our review is for clear
error. People v Pointer-Bey, 321 Mich App 609, 621; 909 NW2d 523 (2017). “Clear error exists
when the reviewing court is left with a definite and firm conviction that a mistake was made.”
People v Blevins, 314 Mich App 339, 348-349; 886 NW2d 456 (2016).
1
Butterfield’s judgment of sentence inaccurately includes the fourth-offense habitual offender
enhancement that had been dismissed by the prosecutor.
2
People v Butterfield, unpublished order of the Court of Appeals, entered June 3, 2021 (Docket
No. 356336).
-2-
A. ILLUSORY PLEA
First, Butterfield argues that his guilty plea was illusory because he bargained for a
benefit—dismissal of the 25-year mandatory minimum enhancement—that did not exist.
Although “[t]here is no absolute right to withdraw a guilty plea once the trial court has
accepted it,” a defendant may move for withdrawal of his plea “when there has been a defect in
the plea-taking process.” People v Al-Shara, 311 Mich App 560, 567; 876 NW2d 826 (2015)
(quotation marks and citation omitted). Butterfield moved to withdraw his plea under MCR
6.310(C), which allows the trial court to set aside the plea if it determines that there was a defect
in the plea proceeding. “A criminal defendant may be entitled to withdraw his or her guilty plea
if the bargain on which the guilty plea was based was illusory, i.e., the defendant received no
benefit from the agreement.” Pointer-Bey, 321 Mich App at 621. Similarly, “an illusory plea
bargain is one in which the defendant is led to believe that the plea bargain has one value when, in
fact, it has another lesser value.” People v Stovall, 334 Mich App 553, 562; 965 NW2d 264 (2020)
(quotation marks and citation omitted).
Butterfield pleaded guilty in exchange for the dismissal of the fourth-offense habitual
offender enhancement brought under MCL 769.12(1)(a). This provision mandates a 25-year
minimum sentence for an individual who is convicted of a felony that is a “serious crime” and who
has previously been convicted of at least three felonies, one or more of which are “listed prior
felonies.” The prosecution later conceded that this notice was erroneous, and the trial court
agreed.3 However, Butterfield was still a fourth-offense habitual offender under MCL
769.12(1)(b), which allows the court to sentence a defendant “to imprisonment for life or for a
lesser term.”4 The trial court ultimately rejected Butterfield’s argument that his plea was illusory,
reasoning:
And so, to the extent that it’s illusory or it’s different than what [Butterfield]
thought he was being offered, the Court would deny it on those grounds, because,
again, I think Mr. Butterfield was very clear as to what he was pleading to, what
the maximum penalty was and what the potential implications were for him.
This Court confronted a nearly-identical set of circumstances in Pointer-Bey. There, in
exchange for the defendant’s guilty plea, the prosecutor agreed not to seek the 25-year mandatory
3
Butterfield had not committed a “listed prior felony” as defined under MCL 769.12(6)(a), and
therefore the penalty provision of MCL 769.12(1)(a) did not apply to him.
4
MCL 769.12(1)(b)’s habitual offender provision applies when the defendant has been previously
convicted of three or more felonies and commits a subsequent felony that is “punishable upon a
first conviction by imprisonment for a maximum term of 5 years or more or for life.” MCL
769.12(1)(b). Butterfield’s presentence investigation report indicates that at the time of the
AWIGBH offense—a felony punishable by a maximum 10-year term of imprisonment, MCL
777.16d—he had previously been convicted of at least three felonies. Accordingly, the trial court
and the parties correctly recognized that Butterfield was eligible for the penalties under MCL
769.12(1)(b).
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minimum sentence for fourth-offense habitual offenders under MCL 769.12(1)(a) and to reduce
the defendant’s status to a third-offense habitual offender under MCL 769.11. Pointer-Bey, 321
Mich App at 621, 624. However, the defendant was not subject to the 25-year minimum sentence
under MCL 769.12(1)(a) because his prior felonies did not satisfy the statute’s requirements. Id.
at 623. Rejecting the defendant’s argument that his guilty plea was illusory, we explained:
The prosecutor’s offer to take the 25-year minimum term of imprisonment “off the
table” in exchange for defendant’s plea was based on a misunderstanding of the
law. It provided defendant with no actual benefit because he was not subject to
MCL 769.12(1)(a). Nevertheless, it is clear that defendant received considerable
benefit for his plea, and we are not persuaded by his assertion that the bargain was
illusory. For instance, while MCL 769.12(1)(a) did not apply, defendant concedes
that he was nevertheless a fourth-offense habitual offender subject to MCL
769.12(1)(b). In exchange for his plea, the prosecutor agreed to reduce defendant’s
habitual offender status to third-offense habitual offender, MCL 769.11. Moreover,
the prosecutor also agreed not to charge defendant in connection with a second bank
robbery . . . . [Id. at 623-624 (emphasis added).]
Similarly, Butterfield received “considerable benefit for his plea,” given the dismissal of
the fourth-offense habitual offender enhancement—albeit the wrong one. Just like the defendant
in Pointer-Bey, Butterfield was a fourth-offense habitual offender subject to MCL 769.12(1)(b).
Rather than facing a potential maximum sentence of life imprisonment under this enhancement
provision, Butterfield received the statutory maximum 10-year sentence for AWIGBH, MCL
777.16d. In other words, the dismissal of the habitual offender enhancement significantly limited
the trial court’s sentencing discretion and foreclosed a maximum sentence greater than 10 years of
imprisonment. Because Butterfield obtained a considerable benefit for his plea, it was not illusory.
B. UNDERSTANDING AND VOLUNTARY PLEA
Second, Butterfield contends that his plea was involuntary because he did not know the
actual terms of the plea bargain to which he agreed. A guilty plea must be understanding,
voluntary, and accurate. MCR 6.302(A). “A plea that is not voluntary and understanding ‘violates
the state and federal Due Process Clauses.’ ” People v Blanton, 317 Mich App 107, 119; 894
NW2d 613 (2016), quoting People v Brown, 492 Mich 684, 699; 822 NW2d 208 (2012), citing
US Const Ams V and XIV, and Const 1963, art 1, § 17. The court must ensure that the defendant
understands “the maximum possible prison sentence for the offense and any mandatory minimum
sentence required by law.” MCR 6.302(B)(2). Additionally, a voluntary plea is one in which the
defendant is “fully aware of the direct consequences of the plea,” and “[t]he most obvious direct
consequence of a conviction is the penalty to be imposed.” Cole, 491 Mich at 333-334 (quotation
marks and citations omitted). “[H]abitual-offender enhancement is a direct consequence of
pleading guilty” and therefore “a defendant must be fully aware of the consequences of that
enhancement before pleading guilty.” Brown, 492 Mich at 695 n 35. When “a plea is offered
pursuant to a bargain with the prosecutor, voluntariness depends upon the defendant’s knowledge
of the actual value of the bargain.” Stovall, 334 Mich App at 562 (quotation marks and citation
omitted). The voluntariness inquiry also requires that the court “confirm the terms of the [plea]
agreement with . . . the defendant.” MCR 6.302(C)(2).
-4-
The trial court’s findings about Butterfield’s knowledge of the mistaken habitual offender
status are somewhat unclear. But the court’s conclusion that Butterfield was “completely clear on
what the plea was that he was being offered in this case” was clearly erroneous. Although
Butterfield understood that he was pleading guilty to AWIGBH in exchange for dismissal of the
fourth-offense habitual offender enhancement, no evidence supports that Butterfield knew that the
25-year mandatory minimum penalty was specifically inapplicable to him. When Butterfield
pleaded guilty, his charging documents that gave notice of the habitual offender enhancement
under MCL 769.12(1)(a) had not been amended, and no statements of record reflected any
knowledge of this error. The prosecutor confirmed at the plea hearing that the habitual offender
enhancement would be dismissed—necessarily referring to the enhancement described in the
charging documents. Butterfield also stated in an affidavit that he pleaded guilty to avoid the 25-
year mandatory minimum sentence, and the presentence investigation report (PSIR) notes that
Butterfield “stated that he took the plea because he could not take the risk of getting 25 years in
prison.” Accordingly, any factual finding that Butterfield understood the exact terms of his plea
bargain was clearly erroneous.
Further, the ultimate decision to deny Butterfield’s motion to withdraw his guilty plea was
an abuse of discretion. MCR 6.302(B)(2) requires the court to find that the defendant understands
“any mandatory minimum sentence required by law.” The record indicates that Butterfield
believed he was facing a 25-year mandatory minimum sentence and pleaded guilty in exchange
for dismissal of that enhancement. Butterfield incorrectly thought that his previous criminal
history subjected him to a “mandatory minimum sentence required by law.” MCR 6.302(B)(2).
The trial court even admitted that erroneous information regarding the 25-year mandatory
minimum penalty “might have played into [Butterfield’s] decision-making about whether or not
to accept the plea that was being offered.” Therefore, we conclude that Butterfield’s plea was not
understandingly made because he was “misinformed concerning the benefit of his plea.” See
People v Graves, 207 Mich App 217, 220; 523 NW2d 876 (1994). See also Pointer-Bey, 321 Mich
App at 623 n 4 (“To the extent that defendant was misinformed that he faced a 25-year mandatory
minimum sentence, the plea proceedings also failed to comply with MCR 6.302(B)(2).”).5
Additionally, Butterfield’s plea was not voluntary because he was not “fully aware of the
direct consequences” of his plea. The prosecution provided inaccurate information in Butterfield’s
charging documents, reasonably leading him to believe that he faced a 25-year mandatory
5
In the context of Butterfield’s ineffective assistance of counsel claim, the trial court explained
that even if Butterfield was misinformed regarding the applicability of the 25-year mandatory
minimum penalty, this lack of understanding still would not warrant withdrawal of the guilty plea
because Butterfield would have benefited from dismissal of the possibility-of-life sentence
enhancement under MCL 769.12(1)(b). Although relevant to whether Butterfield was denied the
effective assistance of counsel, whether or not Butterfield would have pleaded guilty had he
possessed accurate information about the habitual offender enhancement is not relevant to the
determination of whether his plea was understanding. Necessarily, an understanding plea relies
upon the information that the defendant actually understood when entering that plea.
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minimum sentence under MCL 769.12(1)(a).6 The prosecution’s error affected the terms of
Butterfield’s plea agreement, and Butterfield was not informed of this error before entering his
plea. This misinformation led Butterfield to bargain for the dismissal of the habitual offender
enhancement without being “fully aware of the consequences of that enhancement.” See Brown,
492 Mich at 695 n 35. Therefore, the trial court erred by denying Butterfield’s motion to withdraw
the plea because his plea was involuntary under MCR 6.302(C)(2).
These defects in the plea proceedings entitle Butterfield to relief under MCR 6.310(C),
which states in relevant part:
(3) If the trial court determines that there was an error in the plea proceeding
that would entitle the defendant to have the plea set aside, the court must give the
advice or make the inquiries necessary to rectify the error and then give the
defendant the opportunity to elect to allow the plea and sentence to stand or to
withdraw the plea. If the defendant elects to allow the plea and sentence to stand,
the additional advice given and inquiries made become part of the plea proceeding
for the purposes of further proceedings, including appeals.
On remand, the trial court must give Butterfield the option “to allow the plea and sentence to stand
or to withdraw the plea.” MCR 6.310(C)(3). “If the plea is withdrawn, the trial court must vacate
his conviction and sentence and the matter may proceed to trial.” Brown, 492 Mich at 699.7
Alternatively, Butterfield argues that he should be allowed to withdraw his plea because
defense counsel was ineffective by providing misleading advice during plea negotiations. Given
that we have already granted relief allowing Butterfield to withdraw his plea, this issue is moot
and need not be addressed. See People v Jones, 317 Mich App 416, 431-432; 894 NW2d 723
6
The possibility of a discretionary maximum life sentence under MCL 769.12(1)(b) is a vastly
different consideration from the guarantee of a mandatory minimum 25-year sentence under MCL
769.12(1)(a). Although a fourth-offense habitual offender under MCL 769.12(1)(b) faces the
possibility of a maximum life sentence, the court’s discretion with respect to the defendant’s
minimum sentence is limited by consideration of the sentencing guidelines range and the
requirement of proportionality when departing from the guidelines. See People v Steanhouse, 500
Mich 453, 470-473; 902 NW2d 327 (2017). In this case, Butterfield’s minimum guidelines range
was 19 to 38 months, and the trial court determined 27 months of imprisonment to be a
proportionate minimum sentence. Therefore, although Butterfield would have faced the possibility
of a maximum life sentence as a fourth-offense habitual offender under MCL 769.12(1)(b), his
minimum sentence would have almost certainly been substantially less than the 25-year mandatory
minimum authorized by MCL 769.12(1)(a).
7
At sentencing, Butterfield indicated that he removed his retained attorney because the attorney
had filed a motion to withdraw the plea without Butterfield’s approval. This purported motion is
not in the lower court record, and Butterfield’s statements about the motion do not impact our
analysis about the defectiveness of his guilty plea.
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(2016) (stating that the defendant’s ineffective assistance of counsel claim was moot when there
was no further remedy available).
III. SENTENCING
Butterfield next argues that the trial court erred on multiple grounds by denying his motion
for resentencing.8
A. SELF-REPRESENTATION
First, Butterfield contends that the trial court failed to comply with the procedures for
allowing Butterfield to waive his right to counsel at sentencing. Butterfield preserved this issue
for our review by raising it in a motion for resentencing. This self-representation argument
partially implicates the trial court’s compliance with MCR 6.005(D). “The proper interpretation
and application of a court rule is a question of law that is reviewed de novo.” Cole, 491 Mich
at 330. Likewise, we review de novo the entire record to determine whether a defendant has
validly waived the right to counsel. People v Williams, 470 Mich 634, 640; 683 NW2d 597 (2004).
The trial court’s factual findings regarding a defendant’s waiver are reviewed for clear error. Id.The Sixth Amendment of the United States Constitution, applicable to the states through
the Due Process Clause of the Fourteenth Amendment, guarantees the right to counsel at all
“critical stages” for a criminal defendant facing imprisonment. Id. at 641. Sentencing is one such
critical stage where the defendant has a right to be represented by counsel. People v Miles, 454
Mich 90, 99; 559 NW2d 299 (1997). The right to self-representation is also guaranteed by the
Sixth Amendment. Faretta v California, 422 US 806, 819; 95 S Ct 2525; 45 L Ed 2d 562 (1975).
Because “the right of self-representation and the right to counsel are mutually exclusive,” a
defendant who chooses to exercise his right of self-representation must validly waive his right to
counsel. People v Russell, 471 Mich 182, 188-189; 684 NW2d 745 (2004).
In People v Anderson, 398 Mich 361, 367-368; 247 NW2d 857 (1976), our Supreme Court
set forth three requirements that a trial court must follow before allowing a defendant to proceed
without counsel. The court must find that “(1) the defendant’s request is unequivocal, (2) the
defendant is asserting his right knowingly, intelligently, and voluntarily through a colloquy
advising the defendant of the dangers and disadvantages of self-representation, and (3) the
defendant’s self-representation will not disrupt, unduly inconvenience, and burden the court and
the administration of the court’s business.” Russell, 471 Mich at 190. A trial court must “indulge
every reasonable presumption against waiver of the right to counsel.” Id. at 193. The court must
also “engage, on the record, in a methodical assessment of the wisdom of self-representation by
the defendant.” People v Ahumada, 222 Mich App 612, 616-617; 564 NW2d 188 (1997).
8
Although MCR 6.310(C)(3) provides that Butterfield, on remand, may “allow the plea and
sentence to stand,” we address these arguments because they may entitle Butterfield to
resentencing, even if he chooses to allow the guilty plea to stand.
-7-
Additionally, the trial court must comply with the dictates of MCR 6.005(D), which
provides in relevant part:
The court may not permit the defendant to make an initial waiver of the right to be
represented by a lawyer without first
(1) advising the defendant of the charge, the maximum possible prison sentence for
the offense, any mandatory minimum sentence required by law, and the risk
involved in self-representation, and
(2) offering the defendant the opportunity to consult with a retained lawyer or, if
the defendant is indigent, the opportunity to consult with an appointed lawyer.
A trial court’s adherence to these requirements is viewed under a “substantial compliance”
standard. People v Adkins (After Remand), 452 Mich 702, 726; 551 NW2d 108 (1996), overruled
in part on other grounds by Williams, 470 Mich 634. “Substantial compliance requires that the
court discuss the substance of both Anderson and MCR 6.005(D) in a short colloquy with the
defendant, and make an express finding that the defendant fully understands, recognizes, and
agrees to abide by the waiver of counsel procedures.” Id. at 726-727. “[I]f the trial court fails to
substantially comply with the requirements in Anderson and the court rule, then the defendant has
not effectively waived his Sixth Amendment right to the assistance of counsel.” Russell, 471 Mich
at 191-192.
At sentencing, the court engaged in a short colloquy with Butterfield after informing him
of his right to counsel and to self-representation:
The Court: Did you want to hire new counsel? Did you want to see if you
qualify for a court-appointed or did you want to proceed representing yourself
today?
[Butterfield]: I’d like to proceed, sir.
The Court: Okay. Have you ever represented yourself in court before?
[Butterfield]: No, your Honor. Honestly, there is gonna – there are gonna
be some things that I don’t know, but –
The Court: Right.
[Butterfield]: – I don’t want to push it back.
The Court: Okay. Well, I just want to make sure you understand that, as
you stated, there are gonna be issues regarding procedure and substance that you
may not fully understand and that having a lawyer, they would be able to help
explain those things to you and so your result today could be affected by the lack
of representation and—so, do you understand that that’s a risk going forward
representing yourself?
-8-
[Butterfield]: Yes, Your Honor.
The Court: And do you still want to accept that risk knowing that that’s a
possibility?
[Butterfield]: Is it appropriate – may I ask, if – if I did want a court-
appointed lawyer, how long it – it would push this back? It’d push it back at least
a month, wouldn’t it?
The Court: Not necessarily, because the way we’re conducting hearings
now, due to the COVID crisis, we’re having hearings every week, so I could
possibly have it rescheduled as soon as next week or the week after.
[Butterfield]: I would like to move forward, your Honor. I feel like as long
as – I mean – you’re gonna hear my side of the story today, the Prosecutor’s side,
and the victim’s side and you’re gonna make your decision. I don’t think that
having counsel is really gonna too much affect it.
The Court: Okay. All right. Well, the Court finds that your waiver is
knowing and voluntary and—of your right to counsel, so we’ll proceed with the
sentencing hearing this morning.
Butterfield argues that the trial court failed to comply with MCR 6.005(D) because it did
not advise him of his maximum possible sentence, nor did it sufficiently warn him of the risks of
self-representation at sentencing. First, the trial court clearly did not advise Butterfield of “the
maximum possible prison sentence” for his AWIGBH conviction. MCR 6.005(D)(1). Although
Butterfield had been apprised of that information at his plea hearing, the court rule explicitly
requires the court to advise the defendant of the maximum sentence before accepting an initial
waiver of the right to counsel. The obvious implication of that rule is that the court’s instructions
should be given at the proceeding where the defendant’s initial waiver of the right to counsel is
made. Therefore, providing that information at a plea hearing more than one month earlier, and
with defense counsel present, did not satisfy the trial court’s duty under MCR 6.005(D).
Second, both Anderson and MCR 6.005(D) require the trial court to explain to the
defendant the risks involved in self-representation. Here, the trial court made a broad and cursory
statement to Butterfield that he might not understand “issues regarding procedure and substance”
without an attorney and that an attorney could help explain those issues. The trial court did not
advise Butterfield of the specific “dangers and disadvantages” of proceeding without counsel at
sentencing. Butterfield’s admission that “there are gonna be some things that I don’t know” should
have led the court to elaborate on the risks associated with self-representation at sentencing,
including the difficulty of presenting uncounseled legal challenges to the scoring of the sentencing
guidelines. As our Supreme Court has cautioned:
“Red flags” that indicate a defendant’s uncertainty regarding any of the questions
the court uses to facilitate the defendant’s understanding of the waiver requirements
must be addressed by the trial judge. The judge must be able to ease the defendant’s
uncertainty after a reasonable inquiry, or the judge should deny the defendant’s
request to proceed in propria persona. [Adkins, 452 Mich at 725 n 25.]
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Overall, the trial court’s instructions fell short of providing Butterfield with a “methodical
assessment of the wisdom of self-representation” at sentencing. See Ahumada, 222 Mich App
at 616.9
Reviewing the entire record, we conclude that the trial court failed to substantially comply
with the requirements of Anderson and MCR 6.005(D). Although the trial court was not required
to strictly comply with the waiver procedures by providing a word-for-word recitation of the court
rule requirements, the court had a duty to address each of these concepts in some manner. See
Adkins, 452 Mich at 725 (“A particular court’s method of inquiring into and satisfying these
concepts is decidedly up to it, as long as the concepts in these requirements are covered.”).
Because the trial court did not satisfy its obligations, and indulging every reasonable presumption
against waiver, the court erred by granting Butterfield’s request to waive counsel and proceed in
propria persona. On remand, Butterfield is entitled to resentencing,10 even if he chooses to allow
his guilty plea to stand.
B. GUIDELINES SCORING
Second, Butterfield contends that the trial court erroneously scored prior record variable
(PRV) 1 and offense variable (OV) 9. Butterfield preserved these guidelines-scoring challenges
by raising them in a motion for resentencing. See MCL 769.34(10). Under the sentencing
guidelines, we review the trial court’s factual findings for clear error, and those findings must be
supported by a preponderance of the evidence. People v Hardy, 494 Mich 430, 438; 835 NW2d
340 (2013). “Whether the facts, as found, are adequate to satisfy the scoring conditions prescribed
by statute, i.e., the application of the facts to the law, is a question of statutory interpretation, which
an appellate court reviews de novo.” Id. The trial court may consider all record evidence,
“including the contents of a PSIR,” when assessing points under the sentencing guidelines. People
9
We recognize that the cited cases applying Anderson and MCR 6.005(D) all involved a
defendant’s rights to counsel and self-representation at trial. And our Supreme Court has
previously stated that an “effective waiver of trial counsel requires a more exacting waiver than
that required to waive counsel at pretrial stages of the proceedings.” Russell, 471 Mich at 193 n
27. However, we need not decide if, and to what extent, this reasoning applies to the waiver of
counsel at sentencing because faithful application of Anderson and MCR 6.005(D) supports our
conclusion in this case.
10
Generally, the complete denial of counsel at a critical stage of a criminal proceeding is a
structural error requiring automatic reversal. See Russell, 471 Mich at 194 n 29. Applying binding
United States Supreme Court precedent, our Supreme Court has recently held that the deprivation
of counsel at a preliminary examination is subject to harmless-error review. People v Lewis, 501
Mich 1, 12; 903 NW2d 816 (2017). However, the Lewis Court’s holding was limited to the
preliminary examination context and expressly distinguished caselaw applying a structural error
remedy to the denial of counsel at sentencing. Lewis, 501 Mich at 8 n 4, citing People v Arnold,
477 Mich 852; 720 NW2d 740 (2006) (applying rule of automatic reversal to denial of counsel in
sentencing case). Therefore, we believe that the deprivation of a defendant’s right to counsel at
sentencing remains a structural error requiring automatic reversal—which, in this context, compels
resentencing.
-10-
v McChester, 310 Mich App 354, 358; 873 NW2d 646 (2015). The court may also draw
“reasonable inferences arising from the record evidence to sustain the scoring of an offense
variable.” People v Earl, 297 Mich App 104, 109; 822 NW2d 271 (2012), aff’d 495 Mich 33(2014).
1. PRV 1
PRV 1 is “prior high severity felony convictions,” and is assessed 25 points when “[t]he
offender has 1 prior high severity felony conviction.” MCL 777.51. Prior high severity felony
convictions include “[a] crime listed in offense class M2, A, B, C, or D.” MCL 777.51(2)(a).
Butterfield argues that the trial court erroneously assessed 25 points for PRV 1 because he
did not have any previous high severity felonies. The trial court explained its scoring for PRV 1
by noting that Butterfield had previously been convicted of breaking and entering, MCL 750.110.
According to Butterfield’s PSIR, he was convicted of breaking and entering on July 7, 2014.
Butterfield was an adult at the time of this offense. Breaking and entering is a Class D felony,
MCL 777.16f, and a Class D felony is one of high severity, MCL 777.51(2)(a). Therefore, PRV
1 was properly assessed at 25 points.
2. OV 9
OV 9 accounts for the number of victims. MCL 777.39(1). Ten points are assessed for
OV 9 if “[t]here were 2 to 9 victims who were placed in danger of physical injury or death . . . .”
MCL 777.39(1)(c). OV 9 is scored by reference only to the defendant’s conduct during the
sentencing offense. People v McGraw, 484 Mich 120, 133-134; 771 NW2d 655 (2009).
Butterfield argues that the trial court erred by finding that OV 9 was properly scored at 10
points because there was no evidence that his conduct placed anyone other than the immediate
assault victim in danger. However, “close proximity to a physically threatening situation may
suffice” to count an individual as a victim for purposes of OV 9. People v Rodriguez, 327 Mich
App 573, 582; 935 NW2d 51 (2019) (quotation marks and citation omitted). In rejecting
Butterfield’s scoring challenge to OV 9, the trial court found by a preponderance of the evidence
that there were four other individuals present, and in close proximity, to the assault. The trial
court’s finding is sufficiently supported by the record evidence in the PSIR. In addition to
Butterfield’s assault on the victim, the victim indicated that Butterfield was fighting with another
adult before the victim “put herself in between them to break them up.” The victim also told police
that her two children were crying and witnessed part of the assault. Drawing reasonable inferences
from this evidence supports a finding that the children were in close proximity to the incident and
that they were placed in danger of physical harm by being so near to a violent situation. Based on
the evidence that Butterfield had an altercation with another adult and that two children were in
close proximity to the assault on the primary victim, the trial court did not clearly err by finding
that at least two individuals were “placed in danger of physical injury” by Butterfield’s conduct.
See MCL 777.39(1)(c). Accordingly, the trial court properly assessed 10 points for OV 9.
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IV. CONCLUSION
The trial court erred by denying Butterfield’s motion to withdraw his guilty plea.
Butterfield’s plea was not understanding and voluntary because he was misinformed as to the
benefit of his plea bargain and the potential sentence he faced as a fourth-offense habitual offender.
Given these defects, the trial court must give Butterfield the option to withdraw his guilty plea
under MCR 6.310(C)(3). The trial court also erred by finding that Butterfield validly waived his
right to counsel at sentencing. Consequently, if Butterfield elects to have his guilty plea stand, he
is entitled to resentencing.
We vacate the trial court’s order denying Butterfield’s motions to withdraw his guilty plea
and for resentencing, and we remand to the trial court for proceedings consistent with this opinion.
We do not retain jurisdiction.
/s/ Elizabeth L. Gleicher
/s/ David H. Sawyer
/s/ Kristina Robinson Garrett
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