People of Michigan v. Matthew Lawrence Furman ( 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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
October 27, 2022
Plaintiff-Appellee,
v No. 355416
Wayne Circuit Court
MATTHEW LAWRENCE FURMAN, LC No. 19-007623-01-AR
Defendant-Appellant.
Before: JANSEN, P.J., and O’BRIEN and HOOD, JJ.
PER CURIAM.
On remand from the Michigan Supreme Court, defendant appeals by leave granted the
order of the Wayne Circuit Court reversing an order by the 24th District Court granting defendant’s
motion to withdraw his nolo contendere plea. We affirm.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Defendant, a sergeant with the Melvindale Police Department, was charged with
misdemeanor assault or assault and battery, MCL 750.81, and willful neglect of duty, MCL
750.478. These charges arose from defendant’s response to a domestic disturbance call in
February 2019. While inside the residence, defendant threw a food bowl and used coarse language
toward the inhabitants. Defendant also forced an individual to the basement, and the individual
fell down the stairs.
Furman pleaded no contest under a plea agreement. In exchange for Furman’s no-contest
plea to willful neglect of duty, the prosecution agreed to dismiss the assault and battery charge.
The plea agreement contained a sentence agreement of one-year probation, among other
conditions. When the prosecutor stated the terms of the agreement on the record, he made no
mention of a delayed sentence under MCL 771.1.1 Neither did defense counsel. During the plea
1
This statute provides that “[i]n an action in which the court may place the defendant on probation,
the court may delay sentencing the defendant for not more than 1 year to give the defendant an
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colloquy, the district court advised Furman of his trial rights. The district court did not, however,
ask whether the plea was the result of undisclosed promises. Item 6 of the plea form, which
provided checkboxes for the prosecutor’s recommendation for six types of deferred sentences and
sentencing alternatives, including MCL 771.1, was unchecked. Furman also signed a SCAO Form
DC 213, Advice of Rights, summarizing his constitutional trial rights for misdemeanors. The
district court accepted defendant’s plea, and he was later sentenced according to the plea
agreement. Without prompting, the prosecutor stated at sentencing that “[t]he only indication that
we had was that this could not be held under [MCL] 771.1[,] that this was a plea that must remain.”
In other words, that there was no recommendation for a delayed sentence under the statute.
After sentencing, defendant moved the district court to withdraw his plea on the basis of
ineffective assistance of counsel. According to defendant, he received assurances from defense
counsel that he would receive a deferred sentence under MCL 771.1. Defendant claimed that he
only entered the no-contest plea on the basis of this assurance. The district court granted
defendant’s motion without explanation.
The prosecution appealed to the circuit court. The circuit court reversed the district court’s
order granting the plea withdrawal. Defendant filed leave to appeal in this Court, which was
denied. People v Furman, unpublished order of the Court of Appeals, entered December 17, 2020
(Docket No. 355416). Defendant then sought leave to appeal in the Supreme Court. In lieu of
granting leave to appeal, the Supreme Court remanded the case to this Court as on leave granted.
People v Furman, 507 Mich 1003; 961 NW2d 178 (2021).
II. PLEA WITHDRAWAL
Defendant argues that the circuit court erroneously reversed the district court order
allowing the withdrawal of defendant’s no-contest plea. We disagree.
A. PRESERVATION AND STANDARD OF REVIEW
A defendant preserves issues related to a plea withdrawal when “the defendant has moved
to withdraw the plea in the trial court, raising as a basis for withdrawal the claim sought to be
raised on appeal.” MCR 6.310(D); see also People v Armisted, 295 Mich App 32, 45-46; 811
NW2d 47 (2011). Defendant first claims the circuit court erred in reversing the district court’s
order because he was denied effective assistance of counsel when counsel allegedly assured
defendant he would receive a delayed sentence under MCL 771.1. This argument is preserved
because defendant made the same argument in the motion to withdraw his plea. MCR 6.310(D).
Defendant’s second argument in this appeal avers plea withdrawal was warranted because the
district court failed to ask him during the plea-taking process whether anyone promised him
anything outside the plea agreement under MCR 6.302(C)(4)(a) and MCR 6.610(F)(6)(a).
Defendant did not make this argument in his motion to withdraw his plea, nor did he raise it in
opportunity to prove to the court his or her eligibility for probation or other leniency compatible
with the ends of justice and the defendant’s rehabilitation . . . .” MCL 771.1(2).
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response to the prosecution’s appeal to the circuit court. Defendant raised this issue for this first
time in this appeal. Therefore, defendant’s second argument is unpreserved. MCR 3.310(D).
Where this Court is reviewing an appeal from the district court to the circuit court, this
Court stands in the shoes of the circuit court. See People v McBride, 204 Mich App 678, 681; 516
NW2d 148 (1994). As such, this Court applies the same standard of review as the circuit court to
the district court’s decision. Id. “A trial court’s ruling on a motion to withdraw a plea is reviewed
for an abuse of discretion.” People v Al-Shara, 311 Mich App 560, 566; 876 NW2d 826 (2015).
“An abuse of discretion occurs when the trial court’s decision falls outside the range of principled
outcomes. A trial court also necessarily abuses its discretion when it makes an error of law.” Id.(citation omitted).
This case also concerns the interpretation of statutes and court rules, which is reviewed de
novo. People v Kimble, 470 Mich 305, 308-309; 684 NW2d 669 (2004). “The same broad legal
principles governing the interpretation of statutes apply to the interpretation of court rules;
therefore, when interpreting a court rule, this Court begins with the text of the court rule and reads
the individual words and phrases in their context within the Michigan Court Rules.” People v
Traver, 502 Mich 23, 31; 917 NW2d 260 (2018).
With respect to defendant’s preserved issue, “[t]he denial of effective assistance of counsel
is a mixed question of fact and constitutional law, which are reviewed, respectively, for clear error
and de novo.” People v Brown, 279 Mich App 116, 140; 755 NW2d 664 (2008). “A decision is
clearly erroneous if, although there is evidence to support it, this Court is left with a definite and
firm conviction that a mistake has been made.” People v Howard, 233 Mich App 52, 54; 595
NW2d 497 (1998) (quotation marks and citation omitted). Because, however, defendant did not
move the district court or the circuit court for an evidentiary hearing under People v Ginther, 390
Mich 436, 443; 212 NW2d 922 (1973), this Court’s review is limited to mistakes apparent from
the record. People v Mack, 265 Mich App 122, 125; 695 NW2d 342 (2005).
Because defendant’s argument regarding the district court’s failure to adhere to the court
rules and ask about outside promises is unpreserved, it is reviewed for plain error. People v Hanks,
276 Mich App 91, 92; 740 NW2d 530 (2007). “To establish plain error requiring reversal, a
defendant must demonstrate that ‘1) error must have occurred, 2) the error was plain, i.e., clear or
obvious, 3) and the plain error affected substantial rights.’ ” Id., quoting People v Carines, 460
Mich 750, 763; 597 NW2d 130 (1999). “An error affects substantial rights when it impacts the
outcome of the lower court proceedings.” People v Burkett, ___ Mich App ___, ___; ___ NW2d
___ (2021) (Docket No. 351882); slip op at 2 (quotation marks and citation omitted). “Reversal
is warranted only when the error resulted in the conviction of an actually innocent defendant or
seriously affected the fairness, integrity, or public reputation of judicial proceedings independently
of the defendant’s innocence.” People v Lockridge, 498 Mich 358, 393; 870 NW2d 502 (2015).
B. LAW AND ANALYSIS
Under MCR 6.302(A), a trial court may not accept a defendant’s no-contest plea unless the
court is convinced the plea is “understanding, voluntary, and accurate.” A criminal defendant does
not have the right to withdraw a plea after the trial court has accepted it, but a defendant “may
move to have his or her plea set aside on the basis of an error in the plea proceedings.” People v
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Brinkey, 327 Mich App 94, 97; 932 NW2d 232 (2019) (quotation marks and citation omitted).
MCR 6.310(C)(3), which governs, in part, motions to withdraw pleas after sentencing, states:
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.
“In other words, under MCR 6.310(C), a defendant seeking to withdraw his or her plea after
sentencing must demonstrate a defect in the plea-taking process.” People v Blanton, 317 Mich
App 107, 118; 894 NW2d 613 (2016) (quotation marks, citation, and brackets omitted).
On a defendant’s motion to withdraw a plea:
If the trial court determines that a deviation affecting substantial rights
occurred, it shall correct the deviation and give the defendant the option of
permitting the plea to stand or of withdrawing the plea. If the trial court determines
either a deviation did not occur, or that the deviation did not affect substantial
rights, it may permit the defendant to withdraw the plea only if it does not cause
substantial prejudice to the people because of reliance on the plea. [MCR
6.610(F)(8)(b).]
Defendant argues that the circuit court erred in reversing the district court’s grant of his
plea withdrawal in two ways. First, he argues his nolo contendere plea was not “knowingly,
voluntarily, or intelligently” made because he received ineffective assistance of counsel when
defense counsel incorrectly assured defendant he would receive a delayed sentence under MCL
771.1. Second, defendant contends withdrawal of his plea was warranted because the district court
failed to follow the plea-taking process by failing to ask him whether “anyone has promised [him]
anything beyond what is in the plea agreement” as required by MCR 6.610(F)(6)(a). We address
each argument below.
1. INEFFECTIVE ASSISTANCE OF COUNSEL
The right to counsel is guaranteed by the United States and Michigan constitutions. US
Const, Am VI; Const 1963, art 1, § 20. This includes the right to effective assistance of counsel,
People v Vaughn, 491 Mich 642, 669; 821 NW2d 288 (2012), which, by extension, applies to the
plea-bargaining process, Lafler v Cooper, 566 US 156, 162; 132 S Ct 1376; 182 L Ed 2d 398(2012). In Strickland v Washington, 466 US 668, 687; 104 S Ct 2052; 80 L Ed 2d 674 (1984), the
United States Supreme Court held a defendant’s conviction could be reversed on the basis of
ineffective assistance of counsel if defense counsel was “deficient” and defendant was prejudiced
as a result. To demonstrate ineffective of counsel, a defendant must show: “(1) counsel’s
performance fell below an objective standard of reasonableness and (2) but for counsel’s deficient
performance, there is a reasonable probability that the outcome would have been different.”
People v Trakhtenberg, 493 Mich 38, 51; 826 NW2d 136 (2012).
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“A claim of ineffective assistance of counsel may be based on counsel’s failure to properly
inform the defendant of the consequences of accepting or rejecting a plea offer.” People v
Douglas, 296 Mich App 186, 205; 817 NW2d 640 (2012), aff’d in part and rev’d in part on other
grounds 496 Mich 557 (2014), citing Hill v Lockhart, 474 US 52, 57-58; 106 S Ct 366; 88 L Ed
2d 203 (1985). “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 163. “The test is whether
the attorney’s assistance enabled the defendant to make an informed and voluntary choice between
trial and a guilty plea.” People v Corteway, 212 Mich App 442, 446; 538 NW2d 60 (1995). “[I]n
order to satisfy the ‘prejudice’ requirement, the defendant must show that there is a reasonable
probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted
on going to trial.” Hill, 474 US at 59. “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Strickland, 466 US at 694.
“The failure to accurately inform a defendant of the consequences of his or her plea may
constitute a defect in the plea-taking process because the defendant may not have been capable of
making an understanding plea.” People v Coleman, 327 Mich App 430, 443; 937 NW2d 372(2019). “The court may not accept a plea of guilty or nolo contendere unless it is convinced that
the plea is understanding, voluntary, and accurate.” MCR 6.302(A). “Guilty pleas have been
found to be involuntary or unknowing on the basis of ineffective assistance of counsel where
defense counsel failed to explain adequately the nature of the charges or the consequences of the
guilty plea.” Corteway, 212 Mich App at 445. This means defense counsel must provide
defendant sufficient information to “make an informed and voluntary choice” as to his plea. Id.
at 446.
In granting defendant’s motion to withdraw the plea, the district court stated: “But [the
plea] was placed on the record by the Prosecutor and everybody understood it. All right. How
much time do you need to prepare for a jury trial?” From this statement, it is, at best, unclear
whether the district court concluded that defendant was denied effective assistance of counsel.
Ordinarily, we would remand the issue to the district court for an evidentiary hearing to establish
a factual basis whether defendant was denied effective assistance of counsel, which defendant
requests in his brief on appeal.
A remand for an evidentiary hearing is, however, unwarranted. This is the second appeal
regarding this issue—the first being the prosecution’s appeal to the circuit court. The basis of
defendant’s motion to withdraw his plea was because defendant believed he was not afforded
effective assistance of counsel. Yet, defendant did not move for an evidentiary hearing in either
the district court or the circuit court. The circuit court even mentioned the lack of an evidentiary
hearing in its analysis. Defendant should not benefit from his failure to move for an evidentiary
hearing in the first instance. See People v Szalma, 487 Mich 708, 726; 790 NW2d 662 (2010)
(“[A] party may not harbor error at trial and then use that error as an appellate parachute.”).
Because defendant failed to move the lower courts for an evidentiary hearing, the question of an
evidentiary hearing as to the issue of effective assistance of counsel is waived by defendant. Id.Further, remand for an evidentiary hearing is unwarranted because defendant failed to
move this Court to remand under MCR 7.211(C)(1)(a)(ii), which states: “The appellant may move
to remand to the trial court. The motion must identify an issue sought to be reviewed on appeal
and show . . . that development of a factual record is required for appellate consideration of the
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issue.” Because defendant requests an evidentiary hearing in the context of his arguments on
appeal, and not through a motion to this Court, it is procedurally inadequate for this Court’s
consideration. See People v Bass, 317 Mich App 241, 276 n 12; 893 NW2d 140 (2016) (rejecting
a defendant’s request for an evidentiary hearing because it was made in a Standard 4 brief and not
by motion).
Defendant makes the meritless request that this Court consider several exhibits evincing
the need for an evidentiary hearing. These exhibits include: (1) a March 30, 2020 decision by the
labor arbitration tribunal; (2) defendant’s polygraph report; and (3) defendant’s affidavit. A
defendant may be entitled to withdraw his or her plea when the defendant presents “credible
evidence that the plea was the product of fraud, duress, or coercion.” People v Patmore, 264 Mich
App 139, 152; 693 NW2d 385 (2004) (quotation marks and citation omitted). And, “a trial court
is generally barred at the evidentiary hearing from considering testimony or affidavits inconsistent
with statements made during the plea hearing.” People v Samuels, ___ Mich App ___, ___; ___
NW2d ___ (2021) (Docket No. 353302); slip op at 5 (quotations marks and citation omitted).
“However, guilty pleas may be withdrawn on the basis of promises of leniency if the record
contains some support for the defendant’s claim, other than the defendant’s postconviction
allegation.” People v Jackson, 203 Mich App 607, 612-613; 513 NW2d 206 (1994) (quotation
marks and citation omitted).
It appears that defendant believes that this Court should consider the factual value of this
evidence as an indication that defendant’s plea was involuntarily made. In light of this evidence,
defendant asks this Court to remand to the district court for an evidentiary hearing. Defendant
confuses the role of this Court. This Court’s function is not to act as fact-finder, see, e.g., People
v Bulmer, 256 Mich App 33, 36; 662 NW2d 117 (2003), and this Court may not consider an
expanded record on appeal, People v Powell, 235 Mich App 557, 561 n 4; 599 NW2d 499 (1999).
Even if this Court were inclined to remand the case for an evidentiary hearing, defendant waived
the opportunity for an evidentiary hearing by failing to request it in the first instance, as discussed
above. Therefore, defendant’s attempt to have this Court consider an expanded record as a basis
to remand lacks merit.
In the absence of an evidentiary hearing, the next question is whether there is evidence
apparent from the record demonstrating that defendant was denied effective assistance of counsel.
Mack, 265 Mich App at 125. Defendant’s motion to withdraw his plea argued that his plea was
not “knowingly, voluntarily, or intelligently” made because defendant was under the false
impression he would receive a delayed sentence under MCL 771.1. According to defendant, he
“was assured by his attorney that he would receive a delayed sentence under MCL 771.1,” and
defense counsel “conveyed this to the prosecutor and to [the district court].” The problem with
defendant’s argument is there is no actual record suggesting defense counsel “assured” defendant
of the delayed sentence, or that this assurance was relayed to the prosecutor or the district court.
At the sentencing hearing, the prosecutor stated: “The only indication that we had was that this
could not be held under [MCL] 771.1[,] that this was a plea that must remain.” While this
statement suggests that the parties had ex parte discussions about the possibility of a delayed
sentence under MCL 771.1, it does not show defendant was “assured” a delayed sentence.
Moreover, the box on the plea form for MCL 771.1 was left unchecked, and defendant signed this
form.
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The first part of a claim of ineffective assistance of counsel requires a defendant to show
“counsel’s performance fell below an objective standard of reasonableness[.]” Trakhtenberg, 493
Mich at 51. There is simply nothing in this record demonstrating that defense counsel’s actions
fell below an objective standard of reasonableness such that defendant’s plea was not
“understanding, voluntary, and accurate.” MCR 6.302(A). Indeed, the facts show that defendant
was provided an advice of rights, which he signed, and confirmed to the district court he
understood. He assured the district court that his no-contest plea was made freely and voluntarily.
Moreover, at sentencing, the prosecution indicated defendant would not receive a delayed sentence
under MCL 771.1, and defendant did not object. Because our review is limited to mistakes
apparent from the record, Mack, 265 Mich App at 125, and there was no mistake in this record
regarding promises made to defendant by his counsel that would give rise to ineffective assistance,
the circuit court correctly concluded that the district court abused its discretion in granting
defendant’s motion to withdraw the plea.2
2. OUTSIDE PROMISES
Defendant next argues that the circuit court erred in reversing the district court’s order
because the district court failed to ask defendant during the plea hearing whether anyone promised
him anything beyond what is in the plea agreement. MCR 6.302(A) states, in part: “The court may
not accept a plea of guilty or nolo contendere unless it is convinced that the plea is understanding,
voluntary, and accurate.” In the context of plea agreements, the trial court must ask a defendant
about the nature of the plea agreement to determine whether a plea is voluntary. MCR 6.302(C)(4).
Specifically, “[t]he court must ask the defendant . . . whether anyone has promised anything
beyond what is in the plea agreement.” MCR 6.302(C)(4)(a).
The district court did not ask defendant whether anyone made a promise outside the plea
agreement. This was an error given MCR 6.302(C)(4)(a) states a court “must” ask a defendant
this question. See, e.g., People v Fosnaugh, 248 Mich App 444, 449; 639 NW2d 587 (2001)
(“[T]he word ‘must’ is mandatory language . . . .”). However, defendant raised this issue for the
first time in his appeal to this Court. This appeal is the third opportunity defendant had to raise
this issue. Defendant did not argue this issue in either his motion to withdraw his plea or in
response to the prosecution’s appeal to the circuit court. Because defendant failed to make this
argument in either of the lower courts, defendant waived this issue, and we decline to consider it
now. Szalma, 487 Mich at 726.
2
In a footnote in his brief on appeal, defendant makes a passing remark suggesting defense counsel
was ineffective by failing to ask the circuit court for an evidentiary hearing. Aside from a
quotation from the United States Supreme Court case, Evitts v Lucey, 469 US 387, 396; 105 S Ct
830; 83 L Ed 2d 821 (1985), stating due process includes the right to effective assistance of
counsel, defendant offers no argument or explanation regarding the effectiveness of counsel in the
circuit court. Thus, any argument with respect to counsel’s effectiveness in the circuit court is
abandoned for appellate review. People v Van Tubbergen, 249 Mich App 354, 365; 642 NW2d
368 (2002) (“Issues insufficiently briefed are deemed abandoned on appeal.”).
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Affirmed.
/s/ Kathleen Jansen
/s/ Colleen A. O’Brien
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