Order                                                                         Michigan Supreme Court
                                                                                    Lansing, Michigan

  May 11, 2012                                                                       Robert P. Young, Jr.,
                                                                                               Chief Justice

  142323                                                                             Michael F. Cavanagh
                                                                                           Marilyn Kelly
                                                                                     Stephen J. Markman
                                                                                     Diane M. Hathaway
                                                                                         Mary Beth Kelly
  PEOPLE OF THE STATE OF MICHIGAN,                                                       Brian K. Zahra,
            Plaintiff-Appellant,                                                                    Justices

  v                                                        SC: 142323
                                                           COA: 292469
                                                           Wayne CC: 08-014196-FH
  JOSEPH ALEXANDER FRANKLIN,
            Defendant-Appellee.

  _________________________________________/

          On order of the Court, leave to appeal having been granted and the briefs and oral
  arguments of the parties having been considered by the Court, we REVERSE the
  November 16, 2010 judgment of the Court of Appeals. Although the Court of Appeals
  correctly held that MCR 6.310(B)(2)1 requires the trial court to “provide the defendant
  the opportunity to affirm or withdraw the plea,” the Court of Appeals erroneously held
  that the failure to provide such an opportunity resulted in plain error requiring reversal.
  First, given this Court’s holding in People v Grove, 455 Mich 439 (1997), that the trial
  court could reject the entire plea agreement and subject the defendant to a trial on the
  original charges over the defendant’s objection, the trial court’s error in this case was not
  “plain, i.e., clear or obvious.” People v Carines, 460 Mich 750, 763 (1999). However, in
  the future, such an error will be “plain” because we take this opportunity to clarify that,
  as both parties agree, Grove has been superseded by MCR 6.310(B). Furthermore, even
  if the error here was plain and resulted in outcome determinative prejudice, this Court
  still “must exercise its discretion in deciding whether to reverse.” Carines, 460 Mich at
  763. Under these circumstances, where the defendant did not just fail to object at
  sentencing, but also failed to object during the subsequent trial and waived his right to a
  jury trial, this Court is exercising its discretion in favor of not reversing the defendant’s
  convictions. “Any other conclusion would be contrary to the rule that defendants cannot
  ‘harbor error as an appellate parachute.’” People v Pipes, 475 Mich 267, 278 n 39 (2006)
  (citation omitted). We REMAND this case to the Court of Appeals for consideration


  1
   The Court of Appeals erroneously cited MCR 6.310(B)(2)(a) when it should have cited
  MCR 6.310(B)(2)(b).
                                                                                                               2

of the defendant’s remaining appellate issues. The Court of Appeals is specifically
directed to consider the applicability of Lafler v Cooper, ___ US ___ (2012), to
defendant’s ineffective assistance of counsel claim.

       We do not retain jurisdiction.

       CAVANAGH, J. (dissenting).

        I would affirm the judgment of the Court of Appeals. In my view, the Court of
Appeals did not clearly err by concluding that defendant established that he was entitled
to relief under plain-error review. The trial court’s failure to comply with the language of
the court rule ultimately deprived defendant of his opportunity to affirm his plea and the
benefit of his agreement with the prosecution. Accordingly, I respectfully dissent.

       MARILYN KELLY and HATHAWAY, JJ., join the statement of CAVANAGH. J.




                         I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
                   foregoing is a true and complete copy of the order entered at the direction of the Court.
                         May 11, 2012                        _________________________________________
        0509                                                                 Clerk
