                         STATE OF MICHIGAN

                          COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                 UNPUBLISHED
                                                                 April 3, 2018
              Plaintiff-Appellant,

v                                                                No. 339122
                                                                 Macomb Circuit Court
JENELL CAPREICE BAILEY,                                          LC No. 2016-003172-FC

              Defendant-Appellee.


Before: MURRAY, P.J., and CAVANAGH and FORT HOOD, JJ.

PER CURIAM.

       The prosecution appeals by leave granted1 the trial court’s order granting defendant’s
motion to withdraw her guilty plea to second-degree murder, MCL 750.317, operating a vehicle
while intoxicated causing death, MCL 257.625(4)(a), and operating a vehicle while license
suspended, revoked, or denied causing death, MCL 257.904(4), as a second habitual offender,
MCL 769.10. We reverse and remand for proceedings consistent with this opinion.

                                     I. BACKGROUND

       This case arises from a fatal vehicular collision at Gratiot and 10 Mile Road, in
Eastpointe, Michigan, on June 8, 2016, between defendant’s vehicle and the vehicle of Pavlos
Dion. Between 10:00 p.m. and 11:00 p.m., defendant was driving her minivan erratically on
northbound Gratiot. She was speeding and weaving between lanes. Amber Bianga (Bianga) saw
defendant run two red lights, without applying her brakes at either signal. Bianga then saw
defendant’s minivan hit Dion’s vehicle while driving in the middle lane. According to Bianga,
Dion’s car was “really totaled.”

        Officer Robert McNeil (Officer McNeil), of the Eastpointe Police Department, was
dispatched to the scene. Officer McNeil found defendant sitting in the driver’s seat of her
minivan. She said that she drank two beers earlier that night, and he observed beer cans in her
vehicle. Defendant failed all of the field sobriety tests that Officer McNeil performed. The


1
 People v Bailey, unpublished order of the Court of Appeals, entered July 17, 2017 (Docket No.
339122).


                                              -1-
officer in charge, Detective Joshua Ignace (Detective Ignace), also observed beer cans in
defendant’s minivan, and a full can of beer on the floorboard that was cold to the touch. There
were no brake or skid marks on the road at the area of impact, indicating that defendant did not
brake before hitting Dion’s car. Detective Ignace obtained defendant’s driving record, which
indicated that her license expired in 2004. She had four prior drunk driving convictions, and
several other driving with suspended license convictions. Defendant’s blood was drawn, and her
blood alcohol level was 0.199. Dion was pronounced dead a short time after arriving at the
hospital.

        This matter was set for trial on April 19, 2017. However, on that date the parties
informed the trial court that they reached the following resolution: defendant would plead guilty
to all three counts in exchange for a Cobbs2 agreement of a minimum sentence of 18 years’
imprisonment. While the prosecution objected to the sentence, defendant’s attorney at the time
of defendant’s plea asked the trial court to adopt the agreement. Defendant was placed under
oath, and plea proceedings, which will be set forth in more detail below, ensued. The parties
subsequently appeared for sentencing on May 25, 2017. At that time, defendant informed the
trial court that she had met briefly with her counsel that morning, she had told him that her
family was getting her a new attorney, and she wanted to withdraw her plea and proceed to trial.
The prosecution objected to the withdrawal of defendant’s plea, arguing that there was no legal
basis pursuant to MCR 6.310, and pointing out that defendant had stated her satisfaction with
defense counsel while tendering her plea of guilt. During the May 25, 2017 hearing, the trial
court allowed defendant an extensive time, during which she was not sworn under oath, in which
to voice her reasons for wanting to withdraw her guilty plea. According to defendant, she was
not satisfied with her attorney’s representation and she felt like she had “no choice” but to accept
the Cobbs agreement.

        After retaining new counsel, defendant filed a motion to withdraw her plea on June 8,
2017. The substance of defendant’s motion was that she “was under the belief that she could
withdraw her plea at sentencing if she was not comfortable at sentencing.” According to
defendant, citing MCR 6.310(B)(1), allowing her to withdraw her guilty plea would serve the
interests of justice in this case. The trial court held a hearing on defendant’s motion on June 28,
2017. During the motion hearing, defendant’s newly retained defense counsel reiterated the
primary argument in defendant’s written motion, specifically, that defendant believed after
speaking to her counsel at the time of the plea proceedings that she could withdraw her guilty
plea before sentencing. Again, defendant was afforded ample opportunity, without being sworn
under oath, to offer her version of the events that led to her tendering her guilty plea on April 19,
2017. The thrust of defendant’s allegations was that she felt coerced by her counsel to tender the
plea of guilt. Ultimately, after noting that the procedure implemented during the entry and
acceptance of defendant’s guilty plea was “solid[,]” the trial court nonetheless granted
defendant’s motion on the basis that such a decision was “in the interest of justice[.]”
Specifically, the trial court, after reviewing the video recording of the April 19, 2017 plea
proceedings, noted that defendant was hesitant, and had paused and looked to her counsel in


2
    People v Cobbs, 443 Mich 276; 505 NW2d 208 (1993).


                                                -2-
answering the trial court’s questions. The trial court also observed that defendant’s family,
presumably upset by the proceedings, had left the courtroom in a disruptive manner, and
defendant had apologized for that behavior

        The prosecution subsequently filed an emergency interlocutory application for leave to
appeal, as well as motions seeking immediate consideration, peremptory reversal, and a stay
pending appeal. This Court entered an order granting the prosecution’s motion for immediate
consideration, application for leave to appeal, and motion for stay pending appeal. People v
Bailey, unpublished order of the Court of Appeals, entered July 17, 2017 (Docket No. 339122).
However, this Court denied the prosecution’s motion for peremptory reversal “for failure to
persuade the Court of the existence of manifest error requiring reversal and warranting
peremptory relief without argument or formal submission.” Id. This Court also expedited the
appeal on its own motion. Id.

                                         II. ANALYSIS

           A. DEFENDANT’S MOTION TO WITHDRAW HER PLEA OF GUILT

       The prosecution argues on appeal that the trial court abused its discretion when it granted
defendant’s motion to withdraw her guilty plea where defendant did not meet the requirements of
the applicable court rule and where her plea was knowing, understanding and voluntary. We
agree.

        “A trial court’s decision on a motion to withdraw a plea is reviewed 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 “falls outside the range of reasonable and principled
outcomes[.]” People v Swain, 288 Mich App 609, 628; 794 NW2d 92 (2010). The trial court
also abuses its discretion when it makes an error of law. Id. at 629. To the extent that this appeal
involves the application and interpretation of MCR 6.310, we review the trial court’s
interpretation and application of the court rule de novo. Cole, 491 Mich at 330.

        There is no absolute right for a defendant to withdraw a guilty plea after the trial court
accepts it. People v Eloby, 215 Mich App 472, 474; 547 NW2d 48 (1996). However, MCR
6.310(B)(1) provides for circumstances where a plea may be withdrawn after acceptance by the
trial court, but before sentencing:

       [A] plea may be withdrawn on the defendant’s motion or with the defendant’s
       consent only in the interest of justice, and may not be withdrawn if withdrawal of
       the plea would substantially prejudice the prosecutor because of reliance on the
       plea. If the defendant’s motion is based on an error in the plea proceeding, the




                                                -3-
       court must permit the defendant to withdraw the plea if it would be required by
       subrule (C). [Emphasis added.]3

        To support withdrawal of a plea “in the interest of justice” pursuant to MCR 6.310(B), a
defendant has the burden to establish “ ‘a fair and just reason for withdrawal of the plea[.]’ ”
People v Wilhite, 240 Mich App 587, 597; 618 NW2d 386 (2000), quoting People v Jackson,
203 Mich App 607, 611; 513 NW2d 206 (1994). “Fair and just reasons include reasons like a
claim of actual innocence or a valid defense to the charge. Things that are not considered fair
and just reasons are dissatisfaction with the sentence or incorrect advice from the defendant’s
attorney.” People v Fonville, 291 Mich App 363, 378; 804 NW2d 878 (2011) (footnote
omitted). Where the defendant can establish that the plea was the product of fraud, duress or
coercion, this may satisfy the requirements of MCR 6.310. People v Gomer, 206 Mich App 55,
58; 520 NW2d 360 (1994). As a general proposition, to advance a successful motion to
withdraw, the motion and its supporting proofs must demonstrate by a preponderance of the
evidence “that the plea was the product of fraud, duress, or coercion.” People v Patmore, 264
Mich App 139, 151-152; 693 NW2d 385 (2004). The motion to withdraw must include support
for the defendant’s claim, other than a postconviction assertion by the defendant. Id. at 151. If
the defendant meets this burden, the burden shifts to the prosecution to demonstrate that
substantial prejudice would result from withdrawal of the plea. Wilhite, 240 Mich App at 597.
To establish substantial prejudice, the prosecution must demonstrate that “its ability to prosecute
is somehow hampered by the delay.” Gomer, 206 Mich App at 57-58, quoting People v Spencer,
192 Mich App 146, 151; 480 NW2d 308 (1991).

       Under MCR 6.302, to be valid, a plea must be “understanding, voluntary, and
       accurate.” [People v Brown, 492 Mich 684, 688-689; 822 NW2d 208 (2012)]. To
       ensure that a plea is accurate, the trial court must establish a factual basis for a
       guilty plea. MCR 6.302(D); People v Plumaj, 284 Mich App 645, 648 n 2; 773
       NW2d 763 (2009). “In order for a plea to be voluntary and understanding, the
       defendant must be fully aware of the direct consequences of the plea.” People v
       Blanton, 317 Mich App 107, 118; 894 NW2d 613 (2016) (citation and quotation
       marks omitted). [People v Pointer-Bey, ___ Mich App ___, ___; ___NW2d ___
       (2017) (Docket No. 333234); slip op at 3.]

Where a defendant’s plea is not voluntary and understanding, the state and federal Due Process
Clauses are violated. Blanton, 317 Mich App at 119.

      As noted above, defendant asserted in the lower court, and now claims on appeal, that she
was under the impression that she could withdraw her pleas at sentencing if she was
uncomfortable because her counsel told her so.4 However, alleged incorrect advice from an


3
 On appeal, as in the trial court, defendant does not assert that an error in the plea proceedings in
contravention of MCR 6.302 occurred. Rather, the thrust of her argument is that her guilty plea
was not voluntary, understanding and knowing as a result of alleged coercion by her attorney.
4
  During the hearing on defendant’s motion to withdraw her plea, defense counsel informed the
trial court that defendant was not claiming that her predecessor counsel was “incompetent.” In


                                                -4-
attorney is not a “fair and just reason” to permit withdrawal. Fonville, 291 Mich App at 378.
Thus, defendant’s argument that withdrawal of her plea would serve the interests of justice as set
forth in MCR 6.310(B)(1) is unavailing as a matter of law. Additionally, as a factual matter,
defendant’s claim that she was coerced into tendering her plea is belied by the record of the plea
proceedings. Specifically, after the prosecution set forth the terms of the Cobbs agreement, the
trial court and defendant engaged in the following colloquy as pertinent to our analysis:

               [The Court]: You are represented by [defense counsel] today, correct?

               [The Defendant]: Yes.

              [The Court]: Have you had enough time today and throughout this
       process to meet with him and to discuss this plea agreement and this case?

               [The Defendant]: Yes.

              [The Court]: When you met with him did you review the rights on the
       advice form that I’m holding?

               [The Defendant]: Yes.

               [The Court]: Did you read and understand those rights, Ms. Bailey[?]

               [The Defendant]: Yes.

               [The Court]: Is that your signature on this form?

               [The Defendant]: Yes.

                                             * * *

              [The Court]: Are you satisfied, Ms. Bailey, that this plea agreement is in
       your best interest?

               [The Defendant]: Yes, sir.

              [The Court]: Are you satisfied with your attorney’s representation and his
       advice?

               [The Defendant]: Yes, sir.




her written motion, defense counsel stated that “[t]here appears to have been some kind of
breakdown between the defendant” and predecessor counsel. Counsel at the time of the plea
proceeding vigorously denied defendant’s allegations that she was coerced into tendering her
guilty plea.


                                               -5-
       Specifically addressing the Cobbs agreement, the trial court and defendant engaged in the
following colloquy:

              [The Court]: Do you understand, Ms. Bailey, that your attorney has asked
       for a Cobbs evaluation?

               [The Defendant]: Yes, sir.

                [The Court]: And the Cobbs evaluation is that [defense counsel is] asking
       that . . . at the time of sentencing that I sentence you at the minimum end to 218
       months.5

                                                 * * *

                [The Court]: That [defense counsel is] asking that I sentence you at a
       minimum of 216 months up to the life in prison amount, or any term of years up
       to life in prison. Do you understand that, ma’am?

               [The Defendant]: Yes.

               [The Court]: Do you understand that if I cannot agree to the same terms
       once I review the pre-sentence materials and any victim impact statements, that I
       will allow you [to] withdraw this case or withdraw this plea and I will reset your
       case for trial. Do you understand?

               [The Defendant]: Yes, sir.

              [The Court]: Is that how you wish to plead or is that how you wish to
       proceed?

               [The Defendant]: Yes. [Emphasis added.]

        Also during the taking of her plea, defendant specifically denied that she was threatened
to plead guilty, or that she was promised anything by anyone to plead guilty. Defendant also
answered affirmatively when asked by the trial court if she was pleading “guilty freely and
voluntarily[?]” Notably, in direct opposition to defendant’s claim in the trial court and in this
Court, at no point during the plea proceedings did the trial court, the prosecution or defense
counsel inform defendant that she could withdraw her guilty plea before sentencing if she was in
fact uncomfortable. Additionally, the trial court’s comments on the record were abundantly clear
that defendant would only be able to withdraw her plea with the trial court’s consent if the trial
court could not agree to the terms of the Cobbs agreement. Again, at no point during the plea
proceedings did defendant articulate her supposed belief that she could withdraw her guilty plea



5
  At this point in the proceedings, defense counsel informed the trial court that the correct
sentence requested was 216 months.


                                               -6-
of her own accord before being sentenced. We acknowledge that following the acceptance of her
plea, defendant alleged on the record during the June 28, 2017 hearing on her motion to
withdraw her plea that she accepted the Cobbs agreement “under a great amount of duress” from
her counsel at the time, and that she did not believe she was afforded adequate representation.
However, we have closely reviewed the transcript of the plea proceedings, and rather than
support these assertions, the record reflects that defendant expressed satisfaction with her
counsel’s performance, expressed that her plea was freely and voluntarily made, and stated her
belief that the plea agreement was in her best interests. Therefore, contrary to defendant’s
assertions in her brief on appeal, the record of the plea proceedings further demonstrates that
defendant’s guilty pleas were knowing, voluntary, and understanding and yields no indication
that defendant was in any way threatened or coerced into tendering her plea of guilt. In sum, the
record does not show that defendant’s plea did not “represent[ ] a voluntary and intelligent
choice among the alternative courses of action open to the defendant.” North Carolina v Alford,
400 US 25, 31; 91 S Ct 160; 27 L Ed 162 (1970).

        As the trial court recognized during the hearing on defendant’s motion to withdraw her
plea, it properly complied with the requirements set forth in MCR 6.302 before accepting
defendant’s guilty plea.6 Specifically, defendant testified that she could read, write, and
understand English, and is a United States citizen. She was not under the influence of drugs,
alcohol, or any medication that would impact her ability to tender a knowing, voluntary or
understanding plea of guilt. Defendant reviewed and signed the advice of rights form.
Defendant stated that she understood the maximum penalties for the three charges. As noted
above, she affirmatively stated that she was satisfied (1) that the plea agreement was in her best
interest, and (2) with her counsel’s representation. Defendant stated that she understood that the
charges would become convictions in her criminal and driving records. Defendant understood
that by pleading guilty, she would not be entitled to an appeal as of right. Thus, defendant’s
contentions challenging her plea as being in some manner coerced or lacking in understanding
are simply not supported by the record of the plea proceedings.

         Additionally, we note that, as a general proposition, it is improper for defendant to
subsequently make allegations that she was essentially coerced into pleading guilty by her
defense counsel, and contradict her statements made under oath during guilty plea proceedings.
People v White, 307 Mich App 425, 429; 862 NW2d 1 (2014). Under facts similar to this case,
this Court affirmed the trial court’s denial of the defendant’s request for an evidentiary hearing
where the defendant contended, and produced affidavits from himself and relatives in support,
that he was pressured into tendering a plea of guilt by defense counsel, and where he also alleged
that trial counsel had not prepared a defense and was unprepared for trial. Id. During his plea
proceedings, the defendant expressed satisfaction with trial counsel’s performance and the advice
given to him, and noted that it was his own choice to plead guilty, and “no promises, threats or
inducements” compelled his guilty plea. Id. This Court noted that the statements in defendant’s


6
  The trial court specifically stated, “I don’t think there are any issues with regard to the plea. I
think the plea was a solid plea. I know how I work through my pleas with regard to everything
that I put on the record, and we were very thorough in the plea that was taken.”


                                                 -7-
own affidavit “directly contradict[ed] his testimony at the plea hearing.” White, 307 Mich App
at 430. In White, this Court turned to an earlier decision of this Court in People v Serr, 73 Mich
App 19, 25-26; 250 NW2d 535 (1976), stating that Serr stands for the proposition “that when a
plea is entered in accordance with the applicable court rules, a trial court is barred from
considering testimony or affidavits inconsistent with statements made during the plea hearing.”
White, 307 Mich App at 430. This Court quoted the following language from Serr, which was
also relied on by the trial court in White:

               It is the opinion of this court that where a defendant has been found guilty
       by reason of his own statements as to all of the elements required to be inquired
       into by GCR 1963, 785.7, and his attorney has also confirmed the agreement and
       the defendant has been sentenced, neither he nor his attorney will be permitted
       thereafter to offer their own testimony to deny the truth of their statements made
       to induce the court to act. To do so would be to permit the use of its own process
       to create what amounts to a fraud upon the court. This is based on public policy
       designed to protect the judicial process. [White, 307 Mich App at 430, quoting
       Serr, 73 Mich App at 28.]

        Similarly, in People v Armisted, 295 Mich App 32, 47, 48; 811 NW2d 47 (2011), the
defendant claimed ineffective assistance of counsel, alleging that his attorney incorrectly
informed him that he would face a minimum sentence of 11 years’ imprisonment if tried and
convicted, essentially using this misinformation to coerce the defendant to accept a plea deal
with the prosecution. This Court noted that the defendant’s trial counsel appeared to have been
mistaken with respect to the minimum sentence at issue, but that “irrespective of any
misstatements by counsel, the fact remains that [the] defendant would have been subject to a
much greater maximum sentence than the one he actually received had he been tried and
ultimately convicted.” Id. at 49. This Court also rejected defendant’s claim of ineffective
assistance of counsel during the plea proceedings on the following basis:

       Moreover, defendant does not argue that any failures of trial counsel actually kept
       him from understanding the plea to which he agreed. Indeed, defendant testified
       under oath at the plea proceeding that he fully understood the plea and sentencing
       agreement. Just as a party or witness may not create a factual dispute by
       submitting an affidavit that contradicts his or her own sworn testimony or prior
       conduct, Dykes v William Beaumont Hosp, 246 Mich App 471, 480; 633 NW2d
       440 (2001); Palazzola v Karmazin Products Corp, 223 Mich App 141, 155; 565
       NW2d 868 (1997), we conclude that defendant’s affidavit dated February 14,
       2011, was insufficient to contradict or overcome his previous sworn statements at
       the plea proceeding of April 12, 2010. Given defendant’s unequivocal
       confirmation in open court that he understood the plea and sentencing agreement,
       we cannot conclude that defendant’s counsel was ineffective. See [People v




                                               -8-
          Swirles (After Remand), 218 Mich App 133, 138–139; 553 NW2d 357 (1996)].
          [Armisted, 295 Mich App at 49.]7

        While Serr, White and Armisted involved factual scenarios where the defendant had been
in fact sentenced following the plea of guilt, we observe that the language from the Serr Court’s
opinion is persuasive here, where defendant, after tendering a knowing, voluntary and
understanding plea in open court, has sought to subsequently undermine the integrity of the plea
proceedings by questioning the truth of her statements made under oath during the plea
proceedings. Moreover, the Armisted Court’s opinion does not yield any indication that its
ruling is limited to factual situations where the defendant has been sentenced. Id. at 48-49.
Additionally, in White, the defendant, like defendant here, sought to withdraw his plea before
sentencing. White, 307 Mich App at 428.8 We therefore conclude that the trial court’s
determination that defendant met the requirements of MCR 6.310 was an error of law, and
therefore its decision to allow defendant to withdraw her plea of guilt was an abuse of discretion.
Cole, 491 Mich at 329; Swain, 288 Mich App at 628.

                   B. FACTUAL BASIS FOR DEFENDANT’S GUILTY PLEA

        In addition, defendant argues on appeal that withdrawal of her guilty plea was appropriate
because the trial court did not ensure that a factual basis for second-degree murder was
established pursuant to MCR 6.302.9 Defendant did not raise this issue in the trial court,
therefore it is not preserved for appellate review. People v Metamora Water Serv, 276 Mich App
376, 382; 741 NW2d 61 (2007). Additionally, in our order granting the prosecution’s
application for leave, we stated that “[t]his appeal is limited to the issues raised in the application
and supporting brief.” People v Bailey, unpublished order of the Court of Appeals, entered July
17, 2017 (Docket No. 339122). Nonetheless, we will briefly address this unpreserved issue in
the interests of finality and to provide clarity for the parties on remand.




7
   In Armisted, the defendant also sought to withdraw his no-contest plea on the basis that it was
involuntary where trial counsel allegedly coerced him into accepting a plea deal by threatening
defendant “with the prospect of a longer prison sentence if he did not agree to the plea deal.” Id.
at 46. This Court noted that the defendant did not argue that he did not understand his plea,
particularly where during the plea proceedings he had stated that he understood the plea bargain,
and that he had not been threatened or offered favors or promises of leniency for entering into
the plea bargain. Id. However, where the defendant had not filed a motion to withdraw his plea
in the circuit court, appellate consideration of this issue was precluded. Id. at 48.
8
  While the White Court was precluded from granting defendant relief regarding the denial of his
request for an evidentiary hearing on the basis of the law of the case where this Court had denied
defendant’s motion to remand, it nonetheless analyzed the issue and concluded that the trial
court’s decision to not grant defendant’s request for an evidentiary hearing was not an abuse of
discretion. Id. at 428-429.
9
    Defendant does not challenge the factual bases laid for the other two charges.


                                                  -9-
       “We review unpreserved claims, both constitutional and unconstitutional, for outcome-
determinative plain error.” Armisted, 295 Mich App at 46.

        MCR 6.302(D)(1) provides: “If the defendant pleads guilty, the court, by questioning the
defendant, must establish support for a finding that the defendant is guilty of the offense charged
or the offense to which the defendant is pleading.” The elements of second-degree murder are “
‘(1) a death, (2) caused by an act of the defendant, (3) with malice, and (4) without justification
or excuse.’ ” People v Roper, 286 Mich App 77, 84; 777 NW2d 483 (2009), quoting People v
Mayhew, 236 Mich App 112, 125; 600 NW2d 370 (1999). The definition of “malice” is “the
intent to kill, the intent to cause great bodily harm, or the intent to do an act in wanton and wilful
disregard of the likelihood that the natural tendency of such behavior is to cause death or great
bodily harm.” Roper, 286 Mich App at 84, quoting People v Goecke, 457 Mich 442, 464; 579
NW2d 868 (1998). Malice can be inferred from evidence that the defendant “ ‘intentionally set a
force in motion likely to cause death or great bodily harm.’” Roper, 286 Mich App at 84,
quoting Mayhew, 236 Mich App at 125.

       The offense of second-degree murder does not require an actual intent to harm or
       kill, but only the intent to do an act that is in obvious disregard of life-
       endangering consequences. [Roper, 286 Mich App at 84 (citations omitted).]

         At the plea proceedings, defense counsel questioned defendant to lay the factual basis for
all three charges. Regarding Count 1, second-degree murder, the exchange was as follows:

              [Defense Counsel]: As to Count One. Were you operating a motor
       vehicle in the City of Eastpointe, [C]ounty of Macomb, State of Michigan on June
       8, 2016[?]

               [The Defendant]: Yes.

              [Defense Counsel]: While you were operating this vehicle[,] were you
       under the influence of intoxicating liquor or beer[?]

               [The Defendant]: Yes.

              [Defense Counsel]: And at the time that you were so operating[,] were
       you involved in a motor vehicle collision with another car[?]

               [The Defendant]: Yes.

               [Defense Counsel]: And as a result of that collision the operator of that
       car, a certain Pavlos Dion, died[?]

               [The Defendant]: Yes.

              [Defense Counsel]: At the time you were operating did you know based
       on your prior experience that driving while under the influence of liquor could
       cause a risk of great bodily harm or death as a result of your actions[?]


                                                -10-
               [The Defendant]: Yes.

               [Defense Counsel]: As to Count One.

        The record establishes the following facts: (1) Dion died, (2) Dion died as a result of the
collision with defendant’s car, (3) defendant had “the intent to do an act, in wanton and wilful
disregard of the likelihood that the natural tendency of such behavior is to cause death or great
bodily harm[,]” and (4) she did this without justification or excuse, particularly so given her
criminal history. See Roper, 286 Mich App at 84 (citation and quotation marks omitted). Thus,
defendant’s challenge to the factual basis for her plea of guilt to second-degree murder is without
merit.

                                       III. CONCLUSION

        We reverse the trial court’s order granting defendant’s motion to withdraw her plea of
guilt to all three charges, and remand for reinstatement of defendant’s plea of guilt with respect
to all three charges and direct the trial court to proceed with sentencing. We do not retain
jurisdiction.




                                                            /s/ Christopher M. Murray
                                                            /s/ Karen M. Fort Hood




                                               -11-
