                         STATE OF MICHIGAN

                          COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                  UNPUBLISHED
                                                                  December 23, 2014
              Plaintiff-Appellee,

v                                                                 No. 317737
                                                                  Wayne Circuit Court
DERRIVIS LEONARD PARKER,                                          LC No. 12-004602-FH

              Defendant-Appellant.


Before: MURRAY, P.J., and SAAD and HOEKSTRA, JJ.

PER CURIAM.

        Following a jury trial, defendant was convicted of unlawful imprisonment, MCL
750.349b, felon in possession of a firearm, MCL 750.224f, two counts of assault with a
dangerous weapon (felonious assault), MCL 750.82, and possession of a weapon during the
commission of a felony (felony-firearm), MCL 750.227b. He was sentenced, as a fourth-offense
habitual offender, MCL 769.12, to 18 to 66 years’ imprisonment for the felon in possession of a
firearm and unlawful imprisonment convictions, 10 to 15 years’ imprisonment for the felonious
assault convictions, and two years’ imprisonment for the felony-firearm conviction. He appeals
by leave granted.1 Because defendant was denied the effective assistance of counsel during plea
proceedings, we vacate defendant’s judgment of sentence and remand with instructions that the
prosecution reoffer the plea agreement and for further proceedings consistent with Lafler v
Cooper, 566 US __; 132 S Ct 1376; 182 L Ed 2d 398 (2012).

       Defendant’s convictions arose from a domestic disturbance that occurred on the night of
April 23, 2012 and into the morning hours of April 24, 2012, in Detroit, Michigan. During that
time, defendant went to the home of his girlfriend, Renee Hogan, and terrorized her, and several
of her family members, because he suspected that Hogan had been unfaithful. Armed with a
knife and a gun, he punched walls, broke windows, and stabbed doors as well as a mattress while
Hogan was sitting on it. At some point, he “dragg[ed]” Hogan from her house and escorted her
to another home nearby, where he kept her for several hours. He also returned to Hogan’s home
and poured gasoline throughout her basement. During the course of the evening Hogan asked


1
 People v Parker, unpublished order of the Court of Appeals, entered January 23, 2014 (Docket
No. 317737).


                                              -1-
defendant to let her go, and he responded, “No, if I can’t have you, nobody can.” Eventually
police responded and defendant was apprehended. As a result of his actions, defendant was
charged with unlawful imprisonment, arson (involving preparation to burn property), felon in
possession of a firearm, two counts of felonious assault, and felony-firearm. Defendant was also
notified that he was being charged as a fourth-offense habitual offender.

        Shortly before trial, the parties worked out a plea agreement. Defendant agreed to plead
guilty to all charges in exchange for a sentence within the guidelines range and withdrawal of the
fourth-offense habitual offender notice. The trial court indicated that it would abide by this
agreement.

        Consistent with this agreement, defendant signed a written form indicating that he wished
to enter a plea and, on the day defendant’s trial was scheduled to begin, a plea hearing was held.
At that hearing, the trial court detailed the crimes charged, the possible prison sentence faced by
defendant for each offense, and the particulars of the plea agreement. The trial court then
advised defendant of the specific rights that defendant would be giving up by pleading guilty.
Defendant indicated repeatedly that he wished to enter a plea and, in response to questions from
the trial court, confirmed that his decision to enter a plea was freely, voluntarily and
understandingly made. The trial court then elicited from defendant the factual basis for his plea.

     After all these steps toward accepting defendant’s plea had been taken in keeping with
MCR 6.302, the following exchange occurred:

              The Court. The Court will accept your guilty plea to unlawful
       imprisonment, a violation of MCL 750.349b and - -

               Defense Counsel. I think we’ve addressed - -

              The Court. Hold on for one second. Does this or does this not expose the
       defendant to the requirement of sexual offender registration act?

               The Prosecutor. This charge does, Your Honor.

               The Court. The unlawful imprisonment charge?

               The Prosecutor. That is correct, Your Honor.

               The Court. Do you understand that?

               Defendant. No.

               The Court. That was contained within the information.

               Defense Counsel. That is correct, Your Honor.

               The Prosecutor. Oh, no, I didn’t know that.




                                               -2-
                Defense Counsel. Your Honor, I went over each of the counts in this
         information back - - I think it was back in July that I went over these with the
         defendant. So, I’m sorry, Your Honor, I guess at this point - -

                   Defendant. I’m sorry, Your Honor. That is something I just cannot
         accept.

                   The Court. Okay, all right.

                   Defendant. I am so sorry.

                  The Court. No, no, there’s no need to apologize. You’re entitled to a jury
         trial relative to these allegations brought against you. Bring the jury in.

At that time, the jury was brought in, and following trial defendant was convicted and sentenced
as noted above.

        Notably, it is uncontested that the Sex Offenders Registration Act (SORA), MCL 28.721
et seq., requirements referenced by the trial court at the plea hearing did not apply to defendant.
Although a defendant convicted of unlawful imprisonment may be required to register as a sex
offender, this is only true where the victim is a minor. See MCL 28.722(s)(iii). Hogan was not a
minor, meaning that, even if convicted, defendant would not have been required to register as a
sex offender. In short, on the record, the prosecutor erroneously informed the trial court that
defendant’s plea would expose him to SORA’s registration requirements, the trial court imparted
that information to defendant, defense counsel took no steps to correct the trial court’s
misapprehension, and defendant reneged on the plea agreement at the last moment because
registration as a sex offender was something he could not “accept.”

        After trial, defendant moved for a new trial premised on a claim of ineffective assistance
of counsel. He maintained that he had been incorrectly informed that he would have to register
as a sex offender if convicted and that it was not until after trial that he learned the SORA
registration requirements were not applicable in his case. Defendant asserted that, had he been
properly advised, he would have entered a plea pursuant to the agreement offered by the
prosecution.

        Following defendant’s motion, the trial court held a Ginther2 hearing at which both
defendant and his trial counsel testified. Defendant testified that defense counsel informed him
before the plea proceedings that he “might” have to register as a sex offender and that it was not
until after trial that she finally told him definitively that he would not have to register. In
contrast, defense counsel testified that she explained to defendant before the plea hearing that he
would not have to register, that the plea form signed by defendant did not reference registering as
a sex offender, and that the felony information relating to defendant’s charges, which she
reviewed with defendant, stated defendant would have to register if the victim was a minor. She


2
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).


                                                 -3-
further maintained that, at the plea hearing, when the question of SORA registration was raised,
she told defendant, out of the hearing of the court reporter, that he would not have to register as a
sex offender.

        Following the Ginther hearing, the trial court concluded that defendant had not been
denied the effective assistance of counsel and it consequently denied defendant’s motion. The
trial court accepted defense counsel’s testimony that she had informed defendant that he would
not have to register as a sex offender because the victim was not a minor, and the trial court
noted that the felony information stated that unlawful imprisonment was a Tier I offense if the
victim was a minor. Considering these facts, the trial court reasoned as follows:

       With the presumption that the defendant had received effective assistance of
       counsel . . . coupled with defense counsel’s recommendation to the defendant that
       he enter a plea, and that the requirement of registering as a sexual offender would
       not apply to him due to the age of the victim, the defendant received effective
       assistance of counsel, both prior to the plea attempted, during the plea process,
       and during the subsequent trial that ensued, following the aborted plea.

After the trial court denied his motion, defendant filed a delayed application for leave to appeal
in this Court, which we granted.

        On appeal, defendant contends that his trial counsel rendered ineffective assistance of
counsel by providing him erroneous advice, and/or failing to correct erroneous advice, in relation
to whether or not he would be required to register as a sex offender. Defendant asserts that, but
for counsel’s deficient performance, he would have pled guilty pursuant to the proffered plea
agreement. Because he faced a significantly higher sentence following his conviction at trial,
defendant maintains he has shown prejudice arising from counsel’s defective performance and
that he is, therefore, entitled to have the plea offer reinstated.

        Whether a defendant has been denied effective assistance of counsel presents a mixed
question of fact and constitutional law. People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246
(2002). “A judge first must find the facts, and then must decide whether those facts constitute a
violation of the defendant's constitutional right to effective assistance of counsel.” Id. On
appeal, we review the lower court’s findings of fact for clear error. Id. Questions of
constitutional law are reviewed de novo. Id.

        Criminal defendants have a right under the United States and Michigan constitutions to
the effective assistance of counsel. US Const, Am VI; Const 1963, art 1, § 20; People v Vaughn,
491 Mich 642, 669; 821 NW2d 288 (2012). A defendant’s constitutional right to counsel
extends to the plea bargaining process. Lafler, 132 S Ct at 1384 (citation omitted). As when
challenging counsel’s performance at trial, a defendant claiming ineffective assistance of counsel
during the plea bargaining process must show: (1) that counsel’s performance fell below an
objective standard of reasonableness and (2) that there is a reasonably probability that, but for
counsel’s deficient performance, the result of the proceedings would have been different. People
v Douglas, 496 Mich 557, 592; 852 NW2d 587 (2014).




                                                -4-
        Under the first prong, the measure of a counsel’s performance is “simply reasonableness
under prevailing professional norms.” Padilla v Kentucky, 559 US 356, 366; 130 S Ct 1473,
1486; 176 L Ed 2d 284 (2010). In the context of plea bargaining, professional norms require that
counsel inform a defendant of favorable plea offers from the prosecution and advise a defendant
of the direct consequences of accepting such an offer. Missouri v Frye, 566 US __, __; 132 S Ct
1399, 1408; 182 L Ed 2d 379 (2012); Padilla, 559 US at 374. Sex offender registration
requirements incident to SORA are among the direct consequences of a plea on which counsel
must advise a defendant. People v Fonville, 291 Mich App 363, 392; 804 NW2d 878 (2011).

         Under the second prong, in the context of plea bargaining, to demonstrate prejudice, the
“defendant must show the outcome of the plea process would have been different with competent
advice.” Douglas, 496 Mich at 592 (citation omitted). The prejudice alleged is having to stand
trial, and, to establish counsel’s performance affected the outcome of the plea proceedings, the
defendant must demonstrate 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. [Lafler, 132 S Ct at 1385.]

       It is, of course, a defendant’s burden to establish the effective assistance of counsel.
Douglas, 496 Mich at 592. To do so, a defendant bears a heavy burden of overcoming the
presumption that counsel provided effective assistance. People v Horn, 279 Mich App 31, 37 n
2; 755 NW2d 212 (2008). This Court will not substitute its judgment for that of defense counsel
on matters of strategy, nor will it employ the benefit of hindsight to assess the competence of
defense counsel. People v Payne, 285 Mich App 181, 190; 774 NW2d 714 (2009).

        In this case, following a Ginther hearing, the trial court rejected defendant’s claim of
ineffective assistance because it determined that defense counsel credibly testified that she
advised defendant that he would not have to register as a sex offender if he pled guilty. We defer
to the trial court’s assessment of credibility and, given defense counsel’s testimony, we find no
clear error in the trial court’s conclusion that defense counsel accurately advised defendant, at
some point during the plea process, that he would not have to register as a sex offender because
Hogan was not a minor. See People v Dendel, 481 Mich 114, 131; 748 NW2d 859 (2008),
modified 481 Mich 1201 (2008); People v Dagwan, 269 Mich App 338, 342; 711 NW2d 386
(2005). To the extent defense counsel did so advise her client, we see nothing unreasonable in
her representation.

        Nonetheless, on the record presented, we conclude that counsel’s performance fell below
an objective standard of reasonableness. In our view, counsel’s unprofessional error was not
failing to inform defendant regarding SORA’s requirements as an initial matter, but failing to
correct the misapprehension created by the prosecution’s assertion on the record that defendant
would face SORA’s registration requirements if he pled guilty. On the facts of this case, the
prosecution’s assertion in this regard was plainly wrong. Because Hogan was not a minor, there
was no possibility that defendant would be required to register as a sex offender if he pled guilty.

                                                -5-
Yet, on the record, the prosecution misinformed the trial court and the trial court in turn
conveyed this information to defendant, asking if defendant understood he would be required to
register as a sex offender. Defendant promptly responded “no” and, because he could not
“accept” SORA’s registration requirements, he withdrew his agreement to the plea agreement
and proceeded to trial.

        In such circumstances, in our judgment, professional norms required that defense counsel
either immediately, on the record, correct the trial court’s misinformation or, at a minimum,
correct this misapprehension before the end of trial so that the trial court might fashion a remedy
for defendant. That is, a defendant may rely on the representations of the trial court regarding
the consequences of entering a plea. See People v Jones, 37 Mich App 283, 285; 194 NW2d 534
(1971). Likewise, given that the prosecutor is an officer of the court, there would be no reason
for defendant to disbelieve the prosecution’s representations regarding the law and the
consequences of his plea. See People v Dunbar, 463 Mich 606, 617; 625 NW2d 1 (2001);
MRPC 3.3(a)(1). See also In re Guilty Plea Cases, 395 Mich 96, 114; 235 NW2d 132 (1975)
(concluding that a prosecutor’s interjected remarks on the record during the plea process may be
sufficient to advise a defendant of his rights). It follows that, when the trial court and
prosecution gave defendant misinformation on the record at the time he was entering his plea—
information which defense counsel acknowledges that she knew to be mistaken and which she
admits she could have corrected on the record—defense counsel had a professional responsibility
to correct the trial court’s misapprehension and to ensure that defendant was accurately apprised
of the consequences of his plea. Defense counsel did not do so, either at the plea hearing or
during the course of the trial. Instead, defense counsel permitted defendant to forgo a favorable
plea agreement based on his erroneous—and well-founded—belief that he would have to register
as a sex offender if he pled guilty.

       Given the sequence of events in this case, we also do not believe that counsel’s advice to
defendant prior to the plea hearing, her whispered assurances at the hearing, or the felony
information relating to defendant’s charges was sufficient to satisfy defense counsel’s
professional obligations to ensure that defendant understood the consequences of his plea.
Whatever past advice or information defendant had received from counsel or elsewhere,

       the appearance of justice and the integrity of the process by which pleas of guilty
       are offered and accepted require, in the solemn moment of passage from
       presumed innocence to conviction and potential imprisonment, that the judge
       apprise every defendant of the rights he is waiving and consequences of his plea
       and make the other determinations require[d] . . . . [In re Guilty Plea Cases, 395
       Mich at 121.]

In this context, it would be unreasonable to suppose that defendant should be required, or should
be able, to sift through the trial court’s representations at the plea hearing to discern which may
be incorrect because they do not comport with past information from counsel. See id.
(recognizing that a defendant’s prior advice from counsel does not negate his right be informed
of the consequences of a plea at the time his plea is entered). Nor should defendant be expected
to disbelieve the trial court’s recitation of the consequences of his plea based on the whispered
assurances of counsel or his own review of the felony information relating to his charges.
Rather, we view it as incumbent on defense counsel—as well as the trial court and prosecution—

                                                -6-
to ensure that a defendant is properly advised of the consequences of his plea at the time the plea
is made. “Absent sufficient information, the plea would be unknowing and, consequently,
involuntary.” Fonville, 291 Mich App at 384 (citation omitted). See also MCR 6.302.
Consequently, because defense counsel failed to correct the trial court’s misapprehension when it
was conveyed to defendant, or to at least correct such error before the jury verdict in time for the
trial court to fashion some relief for defendant, counsel’s representation fell below an objective
level of reasonableness. See generally Padilla, 559 US at 374; Fonville, 291 Mich App at 384-
385, 392.

        On the record presented, we are also persuaded that defendant has made the requisite
showing of prejudice. First, it is more than reasonably probable that, but for the misinformation
relating to SORA, defendant would have accepted the plea, the prosecution would not have
withdrawn its offer of a plea, and the trial court would have accepted (and not withdrawn its
acceptance of) the terms of the plea. See Lafler, 132 S Ct at 1385. At the time defendant elected
to forgo the plea agreement because of the misinformation provided to him, he had already
repeatedly expressed his wish to enter a plea, signed a written form to that effect, agreed to
waive his rights attendant to a trial, and provided the trial court with the factual basis for his plea.
The trial court had also agreed to accept the plea, and there was no indication the offer would be
withdrawn by the prosecutor. The only reason the plea was not ultimately accepted was because
defendant was mistakenly informed he would have to register as a sex offender, a consequence
which defendant could simply not accept.3

        Second, the plea agreement’s terms were less severe than the sentence defendant received
following trial. See id. Namely, under the plea agreement, the prosecution would have
withdrawn the fourth-offense habitual offender notice and defendant would have been sentenced
within the resulting guidelines range, which would have been considerably lower than the
guidelines range scored after trial based on defendant’s fourth offense habitual offender status
and which would not have included the 18 year minimum sentence ultimately received by
defendant following trial. See MCL 777.21(3); MCL 777.64. On the whole, defendant has
shown that, but for counsel’s deficient performance, there was a reasonable probability that the
result of the plea proceedings would have been different. See Lafler, 132 S Ct at 1385.

        Having concluded that defendant has met his burden of establishing that he received
constitutionally ineffective assistance during the plea bargaining process, the appropriate remedy



3
  Defense counsel testified at the Ginther hearing that defendant was reluctant to enter a plea
because defendant believed Hogan would not appear to testify. This account does not explain
defendant’s decision to go to trial, however, because the plea hearing was held on the same day
as trial, when it was apparent Hogan was in fact present to testify. In fact, at the plea hearing,
defense counsel specifically noted that she approached the trial court about entering a plea
because “all of the witnesses were here and [defendant’s] prediction was not accurate.” Fairly
read, the only conclusion to be drawn from the record of the plea hearing is that defendant opted
to go to trial because he could not “accept” the SORA registration requirements he had been led
to believe would be imposed pursuant to a guilty plea.


                                                  -7-
in these circumstances, as explained in Lafler, 132 S Ct at 1389, 1391, is a remand for the State
to reoffer the plea agreement. Specifically, Lafler instructs that the remedy must be “‘tailored to
the injury suffered’” in order to “‘neutralize the taint’ of constitutional violation,” while at the
same time the remedy should “not grant a windfall to the defendant or needlessly squander the
considerable resources the State properly invested in the criminal prosecution.” Id. at 1388,
quoting United States v Morrison, 449 US 361, 364-365; 101 S Ct 665; 66 L Ed 2d 564 (1981).
Where, as in the present case, ineffective assistance of counsel led to the rejection of a favorable
plea agreement, and resentencing alone will not fully redress the constitutional injury, the proper
remedy is to require the prosecution to reoffer the proposed plea agreement. Lafler, 132 S Ct at
1389.

        Consequently, we vacate defendant’s judgment of sentence, and we remand to the trial
court with instructions that the prosecution reoffer the plea agreement and for further
proceedings consistent with Lafler, 132 S Ct at 1389, 1391. See also People v McCauley, 493
Mich 872; 821 NW2d 569 (2012). That is, after the prosecution reoffers the plea agreement, the
trial court may then exercise its discretion, in light of all the circumstances of the case, in
deciding whether to vacate the convictions from trial and accept the plea or leave the convictions
and sentence from trial undisturbed. Id.; Lafler, 132 S Ct at 1389, 1391. See also MCR
6.302(C)(3). In exercising its discretion, the trial court may consider, among other facts and
circumstances, defendant's earlier willingness, or unwillingness, to accept responsibility for his
actions, and it may also consider any information concerning the crime that was discovered after
the plea offer was made in order to fashion a remedy that does not require the prosecution to
incur the expense of conducting a new trial. McCauley, 493 Mich at 872, citing Lafler, 132 S Ct
at 1389. Further, although the passage of time “makes it difficult to restore the defendant and the
prosecution to the precise positions they occupied prior to the rejection of the plea offer . . . that
baseline can be consulted in finding a remedy . . . .”4 Lafler, 132 S Ct at 1389. In short, we
remand with instructions that the prosecution reoffer the plea agreement and that the trial court
then exercise its discretion regarding the acceptance of that plea agreement, in light of all the
circumstances of the case, in order to “neutralize the taint,” as much as possible, of defendant’s
constitutional injury.

        In light of our decision to remand, we decline to reach defendant’s remaining claims on
appeal at this time. Instead, we retain jurisdiction and we instruct the trial court to notify this
Court after the matter of defendant’s plea has been resolved. If the trial court decides to reject
the plea, defendant may of course challenge the trial court’s decision on appeal. In addition, if,


4
  On the unique facts of this case, when exercising its discretion, the trial court should consider
that the “baseline” in question is an all but accomplished plea that had been accepted by
defendant, the prosecution, and indeed the trial court itself. It was at the last possible moment, as
a result of misinformation conveyed to defendant at his plea hearing, that defendant rejected the
plea and opted to go to trial. Given that it is a near certainty that the plea would have been
accomplished but for the misinformation provided to defendant, neutralizing the taint of the
constitutional injury in this case may well involve acceptance of defendant’s plea by the trial
court.


                                                 -8-
for any reason, defendant does not enter a plea pursuant to the agreement offered by the
prosecution, defendant may raise his remaining claims again on appeal at that time.

        Vacated in part and remanded for further proceedings consistent with this opinion. We
retain jurisdiction.

                                                         /s/ Christopher M. Murray
                                                         /s/ Henry William Saad
                                                         /s/ Joel P. Hoekstra




                                             -9-
                              Court of Appeals, State of Michigan

                                                ORDER
                                                                              Christopher M. Murray
People of MI v Derrivis Leonard Parker                                          Presiding Judge

Docket No.     317737                                                         Henry William Saad

LC No.         12-004602-FH                                                   Joel P. Hoekstra
                                                                                Judges


               Pursuant to the opinion issued concurrently with this order, this case is REMANDED for
further proceedings consistent with the opinion of this Court. We retain jurisdiction.

                 Proceedings on remand in this matter shall commence within 56 days of the Clerk's
certification of this order, and they shall be given priority on remand until they are concluded. As stated
in the accompanying opinion, People v Parker, unpublished opinion per curiam of the Court of Appeals
(Docket No. 317737), the prosecutor is ordered to reoffer the plea agreement on remand and the trial
court is instructed to then exercise its discretion to determine whether to vacate defendant's convictions
from trial and accept the plea or leave the convictions and sentence from trial undisturbed. See Lafler v
Cooper, 566 US _ ; 132 S Ct 1376, 1389; 182 L Ed 2d 398 (20 12). The proceedings on remand are
limited to this issue.

             Within 7 days after completion of the proceedings, the trial court shall cause a copy of
any new judgment of sentence entered on remand to be filed with this Court.
                                                                     ,...




                         A true copy entered and certified by Jerome W. Zimmer Jr., Chief Clerk, on




                                   DEC 2 3 2014
                                         Date
