People of Michigan v. James William Freese II ( 2021 )

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PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
January 21, 2021
Plaintiff-Appellee,
v No. 350388
Alpena Circuit Court
JAMES WILLIAM FREESE II, LC No. 14-006306-FC
Defendant-Appellant.
Before: REDFORD, P.J., and MARKEY and BOONSTRA, JJ.
PER CURIAM.
Defendant appeals by leave granted1 the trial court’s order denying his motion for relief
from judgment on the grounds that the trial court erred (1) because he could not be sentenced to
lifetime electronic monitoring (LEM) for his first-degree criminal sexual conduct (CSC-I)
convictions because the underlying CSC-I offenses occurred before the statutory LEM provisions
took effect and the imposition of LEM violated the constitutional ex post facto prohibitions, and
(2) by not allowing him to withdraw his pleas to second-degree criminal sexual conduct (CSC-II)
because during the plea proceedings the trial court did not advise him of the LEM requirement for
CSC-II convictions. For the reasons stated in this opinion, we affirm the trial court’s denial of
defendant’s motion for relief from judgment and defendant’s CSC convictions and sentences, with
the exception that we remand to the trial court to correct defendant’s CSC-I sentences to remove
the LEM requirement.
I. PERTINENT FACTS
The prosecution charged defendant with multiple counts of criminal sexual conduct (CSC)
of various degrees and defendant chose to have his case tried to a jury. On the third day of his
trial, defendant testified regarding his whereabouts during times relevant to the charged offenses.
1
People v Freese, unpublished order of the Court of Appeals, entered January 2, 2020 (Docket
No. 350388).
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During his cross-examination, the prosecution impeached defendant with evidence that undercut
his alibi defense, whereupon defendant pleaded no contest to 11 counts of CSC in exchange for
the dropping of one count that would have exposed him to a mandatory sentence of 25 years’
imprisonment.2 The record reflects that during defendant’s plea proceeding, defendant pleaded no
contest to each of the 11 CSC charges separately. The trial court informed defendant that he would
be subject to LEM as a result of his pleas to the five counts of CSC-I; however, the court did not
advise him specifically that LEM was also a consequence of the CSC-II charges. Defendant raised
no objections to the plea proceedings. Before sentencing, however, defendant moved the trial
court to withdraw his pleas on the grounds that his trial counsel had coerced him into accepting
the pleas. The trial court held an evidentiary hearing on defendant’s motion and denied the motion
because defendant failed to establish grounds for withdrawal of his pleas.
Defendant later appealed by right and by leave and argued to this Court that the trial court
erred by denying his motion to withdraw his pleas in relevant part because it included in his CSC-
II sentences mandatory LEM without advising of that consequence, departed upward when
imposing minimum sentences for his CSC-I and CSC-II convictions, and his trial counsel provided
ineffective assistance. This Court affirmed his convictions and sentences. Respecting defendant’s
claim that the trial court erred by not permitting him to withdraw his pleas, this Court ruled that
defendant failed to demonstrate that the trial court clearly erred by finding that defendant had not
been coerced into pleading no contest. Regarding defendant’s claim of error in relation to LEM
for his CSC-II convictions, this Court held that because defendant failed to raise the issue in the
trial court when he moved to withdraw his pleas, he therefore was barred by MCR 6.310(D) from
raising the matter on appeal. However, in the context of defendant’s claim that his counsel
provided ineffective assistance by not objecting to the imposition of LEM in relation to his CSC-
II convictions, this Court considered whether that entitled defendant to any relief. This Court
found that, although the trial court advised defendant five times in relation to his CSC-I charges
that he faced the LEM requirement, the trial court overlooked doing so in relation to his CSC-II
charges. This Court reflected upon the requirement specified in MCR 6.302(B)(2) to inform
defendants during plea proceedings of the maximum possible prison sentence and the LEM
requirement in relation to CSC-I and CSC-II convictions, but noted that substantial compliance
with the rule may satisfy the rule’s requirements and minor deviations do not require reversal.
This Court ruled that the trial court’s failure to reiterate the LEM requirement constituted harmless
error and the plea proceedings substantially complied with the requirements of MCR 6.302(B)(2).
Accordingly, this Court determined defendant lacked entitlement to appellate relief. People v
Freese, unpublished per curiam opinion of the Court of Appeals issued April 25, 2017 (Docket
Nos. 329673 and 332141). Our Supreme Court denied defendant’s application for leave to appeal
this Court’s judgment. People v Freese, 501 Mich 947; 904 NW2d 621 (2017).
2
Defendant pleaded no contest to five counts of first-degree criminal sexual conduct (CSC-I),
MCL 750.520b(1)(b)(ii) (related victim aged 13 to 15); two counts of second-degree CSC (CSC-
II), MCL 750.520c(1)(a) (victim under 13 years old); one count of third-degree CSC (CSC-III),
MCL 750.520d(1)(a) (victim 13 to 15 years old); two counts of CSC-III, MCL 750.520d(1)(b)
(force or coercion); and one count of fourth-degree CSC (CSC-IV), MCL 750.520e(1)(b).
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In 2019, defendant moved for relief from judgment, arguing that the imposition of LEM
on the basis of his CSC-I convictions violated the constitutional ex post facto prohibition because
the underlying offenses occurred before the LEM provisions took effect; further, defendant argued
that he was entitled to withdraw his pleas to CSC-II because, although he was advised that he
would be subject to LEM as a result of his pleas to CSC-I, he was not advised that CSC-II
convictions subjected him to mandatory LEM. Defendant contended that his sentences were
invalid because of the imposition of LEM and that LEM should be removed from his sentences.
The trial court denied the motion for failure to show good cause and actual prejudice as required
under MCR 6.508(D)(3)(a) and (b).
II. STANDARD OF REVIEW
We review “a trial court’s decision on a motion for relief from judgment for an abuse of
discretion and its findings of facts supporting its decision for clear error.” People v Swain, 288
Mich App 609, 628; 794 NW2d 92 (2010). “A trial court abuses its discretion when its decision
falls outside the range of reasonable and principled outcomes or makes an error of law. The
interpretation of a court rule is a question of law that is reviewed de novo.” Id. at 628-629 (citations
omitted). “A ruling is clearly erroneous if the reviewing court is left with a definite and firm
conviction that the trial court made a mistake.” People v Reese, 491 Mich 127, 139; 815 NW2d
85 (2012) (quotation marks and citation omitted).
III. ANALYSIS
A. EX POST FACTO PROHIBITION
Defendant argues, and the prosecution concedes, that imposition of LEM as part of
defendant’s sentences for his CSC-I convictions violates the constitutional ex post facto
prohibition. We agree.
The Michigan and United States Constitutions prohibit ex post facto laws. Const 1963, art
1, § 10; US Const, art I, § 10. “Both ex post facto clauses are designed to secure substantial
personal rights against arbitrary and oppressive legislation and to ensure fair notice that conduct
is criminal.” People v Callon, 256 Mich App 312, 317; 662 NW2d 501 (2003) (citations omitted).
“Michigan does not interpret its constitutional provision more expansively than its federal
counterpart.” Id. The United States Supreme Court has identified four categories of ex post facto
laws:
1st. Every law that makes an action done before the passing of the law, and which
was innocent when done, criminal; and punishes such action. 2d. Every law that
aggravates a crime, or makes it greater than it was, when committed. 3d. Every
law that changes the punishment, and inflicts a greater punishment, than the law
annexed to the crime, when committed. 4th. Every law that alters the legal rules
of evidence, and receives less, or different, testimony, than the law required at the
time of the commission of the offence, in order to convict the offender. [Carmell v
Texas, 529 US 513, 522; 120 S Ct 1620; 146 L Ed 2d 577 (2000) (quotation marks
and citation omitted).]
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“The critical question for an ex post facto violation is whether the law changes the legal
consequences of acts completed before its effective date[.]” Carmell, 529 US at 520 (brackets,
quotation marks, and citation omitted).
The LEM provisions under MCL 750.520b(2)(d) and MCL 750.520n became effective on
August 28, 2006. MCL 750.520n; 2006 PA 169; 2006 PA 171. Lifetime electronic monitoring
constitutes “additional punishment” and is part of the sentence itself “when required by the CSC-
I or CSC-II statutes.” People v Cole, 491 Mich 325, 336; 817 NW2d 497 (2012).
Before August 28, 2006, the maximum penalty that a defendant could receive for a CSC-I
conviction was imprisonment for “life or any term of years.” MCL 750.520b(2), as amended by
2002 PA 714. After the Legislature revised the statute, a defendant became required to serve a
prison sentence and be subject to LEM. MCL 750.520b(2)(d). In this case, the charged conduct
resulting in defendant’s CSC-I convictions occurred in the 1990s before the LEM provisions
became effective. Sentencing defendant to LEM on the basis of his CSC-I convictions violated
the constitutional ex post facto prohibition because it imposed greater punishment than the law
permitted at the time defendant committed his CSC-I offenses. Carmell, 529 US at 522.
Accordingly, we remand to the trial court to correct defendant’s CSC-I sentences by removing the
mandatory LEM. Respecting his CSC-I convictions and sentences, defendant is not entitled to
further relief.
B. RELIEF FROM JUDGMENT
Defendant also argues that the trial court abused its discretion when it denied his motion
for relief from judgment to permit him to withdraw his CSC-II pleas because the trial court did not
advise defendant of the LEM consequence of those pleas. We disagree.
A defendant in a criminal case may move for relief from a judgment of
conviction and sentence. MCR 6.502(A). Such motions are governed by MCR
6.500 et seq. These rules outline the procedure for how a trial court is to consider
a motion for relief from judgment, identify the requirements that a defendant must
establish to be entitled to relief, and limit the number of motions that a defendant
may file.
A motion for relief from judgment is to be presented to the judge to whom
the case was assigned at the time of the defendant’s conviction. MCR 6.504(A).
The court is required to “promptly examine” the motion and all files, records,
transcripts, and correspondence relating to the judgment under attack. MCR
6.504(B)(1). If it is plainly apparent that the defendant is not entitled to relief, the
court must deny the motion. MCR 6.504(B)(2). If the court does not dismiss the
entire motion, it must order the prosecution “to file a response as provided in MCR
6.506, and shall conduct further proceedings as provided in MCR 6.505-6.508.”
MCR 6.504(B)(4).
The court, after reviewing the motion, response, record, and any record
expansion, must then decide whether an evidentiary hearing is required. MCR
6.508(B). If it determines that a hearing is not required, the court may rule on the
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motion for relief from judgment or afford the parties an opportunity for oral
argument. Id. If the court decides that an evidentiary hearing is required, it shall
schedule and conduct a hearing. MCR 6.508(C). [Swain, 288 Mich App at 629-
630.]
“The defendant has the burden of establishing entitlement to the relief requested.” MCR 6.508(D).
MCR 6.508(D) provides, in pertinent part, that a court may not grant relief if defendant’s
motion
(3) alleges grounds for relief, other than jurisdictional defects, which could
have been raised on appeal from the conviction and sentence or in a prior motion
under this subchapter, unless the defendant demonstrates
(a) good cause for failure to raise such grounds on appeal or in the prior
motion, and
(b) actual prejudice from the alleged irregularities that support the claim for
relief. As used in this subrule, “actual prejudice” means that,
* * *
(ii) in a conviction entered on a plea of guilty, guilty but mentally ill, or nolo
contendere, the defect in the proceedings was such that it renders the plea an
involuntary one to a degree that it would be manifestly unjust to allow the
conviction to stand;
* * *
(iv) in the case of a challenge to the sentence, the sentence is invalid.
The court may waive the “good cause” requirement of subrule (D)(3)(a) if it
concludes that there is a significant possibility that the defendant is innocent of the
crime.
Defendant alleges no jurisdictional defects in this case; therefore, defendant was required
to demonstrate (1) good cause for the failure to raise his challenge on direct appeal and (2) actual
prejudice from the alleged irregularities that support the claim for relief. MCR 6.508(D)(3).
1. GOOD CAUSE
“ ‘Cause’ for excusing procedural default is established by proving ineffective assistance
of appellate counsel, pursuant to the standard set forth in Strickland v Washington, 466 US 668;
104 S Ct 2052; 80 L Ed 2d 674 (1984), or by showing that some external factor prevented counsel
from previously raising the issue.” People v Reed, 449 Mich 375, 378; 535 NW2d 496 (1995).
To establish that a defendant’s appellate counsel provided ineffective assistance, a defendant must
establish that his or her appellate counsel’s performance fell below an objective standard of
reasonableness and prejudiced his or her appeal. People v Uphaus, 278 Mich App 174, 186; 748
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NW2d 899 (2008). “Prejudice means a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” People v
Randolph, 502 Mich 1, 9; 917 NW2d 249 (2018) (quotation marks and citation omitted).
The record reflects that defendant moved to withdraw his pleas after his plea proceeding
on the ground that they were involuntary because his trial counsel improperly pressured him. The
trial court determined following an evidentiary hearing that defendant’s motion lacked merit.
Defendant appealed. Defendant’s appellate counsel did not file another motion in the trial court
to withdraw his pleas on the ground that the trial court failed to advise him regarding LEM in
relation to his CSC-II pleas. On appeal, defendant argued that the trial court erred by denying his
motion to withdraw his pleas and argued that the trial court should have permitted him to withdraw
his CSC-II pleas because the trial court failed to advise him regarding LEM in relation to his CSC-
II pleas. Defendant further appealed on the ground that his trial counsel and appellate counsel
provided ineffective assistance by not objecting to the trial court’s failure to advise him regarding
LEM in relation to his CSC-II pleas and by not raising the LEM issue in the trial court.
This Court concluded that, as a consequence of not raising the LEM issue below, defendant
procedurally defaulted on that issue and, therefore, could not raise the issue on appeal as directed
under MCR 6.310(D). Freese, unpub op at 3, 4. Nevertheless, because the issue intersected with
his claims of ineffective assistance by both his trial counsel and appellate counsel, this Court
specifically addressed whether the trial court’s failure to reiterate the LEM requirement related to
his CSC-II convictions and found that, under the circumstances presented in this case, the trial
court’s conduct constituted harmless error. This Court ruled:
In the instant case, as noted, the trial court advised defendant in connection with
each of his five charges that resulted in convictions of [CSC-I] that he faced lifetime
monitoring. Although the court overlooked that aspect in connection with
defendant’s two no-contest pleas to charges of [CSC-II], the court’s having
addressed the matter in connection with the five charges that resulted in conviction
of [CSC-I] rendered its oversight harmless error, and kept the plea proceeding as a
whole in substantial compliance with the requirements of MCR 6.302(B)(2). Thus,
failure of either trial or post-trial counsel to preserve a claim of error did not result
in prejudice to defendant. [Id. unpub op, 5-6.]
This Court, therefore, determined that defendant failed to establish that either his trial
counsel or his appellate counsel provided him ineffective assistance in this regard. Because the
trial court’s error was harmless, defendant lacked entitlement to relief.
In the context of this appeal, defendant cannot establish good cause respecting the trial
court’s conduct which this Court has already determined constituted harmless error that did not
warrant relief. We find defendant’s arguments in this appeal unpersuasive.
2. ACTUAL PREJUDICE
The requirement of “actual prejudice” for obtaining postjudgment relief “is similar to the
prejudice standard in an ineffective-assistance-of-counsel claim.” Swain, 288 Mich App at 638.
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“Actual prejudice” is established under MCR 6.508(D)(3)(b)(ii) when “the defect in the
proceedings was such that it renders the plea an involuntary one to a degree that it would be
manifestly unjust to allow the conviction to stand.” This Court has held that “[s]trict compliance
with MCR 6.302 is not essential; rather, our Supreme Court has adopted a doctrine of substantial
compliance, holding that whether a particular departure from [MCR 6.302] justifies or requires
reversal or remand for additional proceedings will depend on the nature of the noncompliance.”
People v Plumaj, 284 Mich App 645, 649; 773 NW2d 763, 766 (2009) (quotation marks and
citations omitted).
As discussed previously, this Court determined that the trial court substantially complied
with the requirements of MCR 6.302(B)(2) and that defendant failed to establish that his pleas
were involuntary or that his counsel provided him ineffective assistance in relation to the trial
court’s failure to reiterate the LEM requirement for the CSC-II convictions. Defendant, therefore,
cannot establish that his pleas were involuntary to a degree that it would be manifestly unjust to
allow his convictions to stand, nor can he establish that his CSC-II sentences were invalid because
of the imposition of the statutory mandatory LEM requirement. Accordingly, defendant cannot
establish the requisite prejudice necessary to warrant relief from judgment and the trial court did
not err by denying his motion.
We affirm the trial court’s order denying defendant’s motion for relief from judgment and
remand to the trial court with instructions to correct the judgment of sentence respecting the
imposition of LEM for the CSC-I convictions. We do not retain jurisdiction.
/s/ James Robert Redford
/s/ Jane E. Markey
/s/ Mark T. Boonstra
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