                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   June 22, 2017
               Plaintiff-Appellee,

v                                                                  No. 330816
                                                                   Macomb Circuit Court
ANTHONY JAY LEWANDOWSKI,                                           LC No. 2014-001010-FH

               Defendant-Appellant.


Before: STEPHENS, P.J., and K. F. KELLY and MURRAY, JJ.

PER CURIAM.

        Defendant pleaded guilty to possession of less than 25 grams of cocaine, MCL
333.7403(2)(a)(v), and operating a motor vehicle without a valid operator’s license – subsequent
offense, MCL 257.904(1) and MCL 257.904d. The trial court sentenced defendant as a fourth-
offense habitual offender, MCL 769.12, to three years’ probation, subject to concurrent jail terms
of 365 days for the possession of cocaine conviction and 93 days for the driving without a
license conviction. Defendant now appeals by delayed leave granted, and we affirm.

                               I. FACTS AND PROCEEDINGS

        Following a traffic stop in March 2014, defendant was unable to produce a valid driver’s
license because his license had been suspended. The officer directed defendant to get out of his
vehicle and conducted a pat-down search of defendant, which led to the discovery of a small
quantity of cocaine on his person. Defendant was on parole at the time of the traffic stop.

        At a hearing on April 16, 2014, defendant, represented by his first lawyer, expressed his
intent to enter a guilty plea, but then changed his mind after he learned that his sentence would
be consecutive to the sentence he was serving for his parole offense. Defendant, represented by
his second attorney, subsequently entered a guilty plea on May 7, 2014. The parties do not
dispute that on May 7 the trial court fully complied with MCR 6.302 and determined that
defendant’s plea was an understanding, voluntary, and accurate plea. Defendant subsequently
filed a motion to withdraw his plea, which the trial court granted on June 10, 2014. Defendant
also moved for a remand to the district court for a preliminary examination, which he had
previously waived. The trial court granted the request for a remand. Following a preliminary
examination, defendant was bound over to circuit court for trial. Defendant then moved to
suppress the evidence, arguing that he was improperly subjected to a pat-down search for failure
to produce a driver’s license. The trial court granted defendant’s request for an evidentiary
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hearing on this issue. However, on April 28, 2015, the date of the scheduled evidentiary hearing,
defendant informed the trial court that, after discussions between himself, defense counsel, the
prosecutor, and the officer-in-charge, he had decided to waive the evidentiary hearing and
reinstate his prior guilty plea. The trial court accepted reinstatement of defendant’s May 7 plea,
but it did not follow the procedures prescribed in MCR 6.302 for acceptance of an initial guilty
plea.

        On May 28, 2015, the trial court agreed to adjourn sentencing because defendant had
retained new counsel. On the adjourned sentencing date, June 23, 2015, defendant asked to
withdraw his plea. He argued that prior counsel had coerced him into reinstating his prior guilty
plea by telling him that he would be immediately incarcerated if he did not enter the plea.
Defendant also argued that prior counsel failed to review discovery with him, preventing him
from understanding that he had an allegedly viable claim for suppressing the seized evidence.
The trial court proceeded with sentencing and advised defendant that he could request to
withdraw his plea in an appropriate post-sentencing motion. The trial court sentenced defendant
to three years’ probation, subject to concurrent jail terms of one year for the possession of
cocaine conviction and 93 days for the driving with a suspended license conviction.

        Defendant thereafter filed a written motion to withdraw his plea. He argued that his plea-
based convictions were invalid because the trial court failed to comply with MCR 6.302 when
reinstating his prior plea. Defendant also argued that withdrawal of his pleas was in the interests
of justice because the cocaine was discovered during an illegal search and because of coercion
and the ineffective assistance of his former defense counsel. The trial court denied the motion.

                                          II. MCR 6.302

        Defendant first argues that his April 28 plea is invalid as a matter of law because the trial
court failed to comply with the procedures required by MCR 6.302 when reinstating his prior
guilty plea. “This Court reviews de novo lower courts’ interpretations and applications of
statutes and court rules.” People v Lee, 489 Mich 289, 295; 803 NW2d 165 (2011).

       MCR 6.302(A) provides that a trial court may not accept a plea of guilty “unless it is
convinced that the plea is understanding, voluntary, and accurate.” Subrules MCR 6.302(B) -
(E) provide procedures for advising and questioning a defendant to ascertain that a plea is
understandingly, voluntarily, and accurately made. The parties do not dispute that the trial court
complied with MCR 6.302 when it accepted defendant’s guilty plea in May 2014, and properly
determined that this plea was understandingly, voluntarily, and accurately made. At issue on
appeal is whether the trial court was required to again comply with MCR 6.302 in April 2015,
when it reinstated defendant’s prior guilty plea.

        In People v Plumaj, 284 Mich App 645; 773 NW2d 763 (2009), the parties placed their
plea agreement on the record. The trial court accepted the defendant’s pleas of no contest, but it
failed to place the defendant under oath. Id. at 646-647. The defendant moved to set aside his
pleas on the ground that he was denied the effective assistance of counsel, and that his plea was
invalid because the trial court failed to place him under oath and failed to comply with other
aspects of the court rule. Id. at 647. The trial court set aside the plea. Id. This Court granted the
prosecutor’s application for leave to appeal the order allowing the defendant to withdraw his

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pleas. Id. This Court stated that, “[s]trict compliance with MCR 6.302 is not essential,” and held
that whether a failure to comply with applicable procedural requirements “justifies or requires
reversal or remand for additional proceedings will depend on the nature of the noncompliance.”
Id. at 649, quoting People v Saffold, 465 Mich 268, 272; 631 NW2d 320 (2001) (citation and
quotation marks omitted). This Court concluded that omission of the oath was not an error of
sufficient degree to invalidate the plea, explaining:

                 Although MCR 6.302(A) requires that the court place the defendant under
       oath before accepting a plea of guilty or nolo contendere, a failure to do so, by
       itself, is not determinative. Because the oath obligation is not one of the protected
       rights requiring reversal, the trial court must make the initial determination
       regarding whether the pleas were understandingly, knowingly, voluntarily, and
       accurately made. While an oath may assist the trial court in making its
       determination, an oath by itself does not establish any of the necessary requisites
       of a valid plea. The trial court must employ the decisional process to either grant
       or deny a motion to withdraw a plea and make findings in a hearing to support the
       application of discretion. Guided by the facts of a particular case, it is for the trial
       court to determine the ultimate issue whether the defendant's pleas were
       understandingly, knowingly, voluntarily, and accurately made. [Plumaj, 284
       Mich App at 651-652.]

        In People v Kosecki, 73 Mich App 293; 251 NW2d 283 (1977), the defendant entered a
plea of guilty to entering without breaking, MCL 750.111, on March 7, 1975. Id. at 294. The
defendant was permitted to withdraw his plea on the day of sentencing, March 21, 1975. The
defendant’s counsel had recommended withdrawal of the plea because counsel believed that
defendant’s responses at the plea hearing were insufficient to establish that he possessed the
requisite intent to commit a larceny inside the building he entered. Id. Later that same day,
however, the defendant requested that his plea be reinstated. Id. The defendant argued on
appeal that his plea-based conviction was invalid because the trial court failed to advise him of
his constitutional rights before accepting reinstatement of the plea. This Court noted that “[i]t
was a period of only two weeks between the original plea and the retender of the same plea,” and
that “[t]here was no indication that defendant offered his original plea in ignorance of its
consequences.” Id. at 297-298. Accordingly, this Court affirmed the defendant’s plea-based
conviction. Id. at 298.

        In People v Wilkens, 139 Mich App 778; 362 NW2d 862 (1984), the defendant pleaded
guilty on January 11, 1983, to two charges in exchange for dismissal of other charges. Id. at 781.
On February 18, 1983, the trial court offered the defendant the opportunity to withdraw his pleas,
believing that the defendant was entitled to do so pursuant to our Supreme Court’s then recent
decision in People v Killebrew, 416 Mich 189; 330 NW2d 834 (1982). Wilkens, 139 Mich App
at 782. On February 22, 1983, the defendant withdrew his pleas. Id. at 783. On March 21,
1983, the prosecutor moved to reinstate the defendant’s guilty pleas after the Supreme Court
issued an order clarifying the retroactivity of its decision in Killebrew. The trial court agreed
that the defendant was not entitled to withdraw his pleas, and therefore, the defendant’s pleas
were reinstated. Id. at 784. The defendant argued on appeal that “once a guilty plea is
withdrawn, it is a nullity and there is nothing to reinstate.” Id. at 784. This Court disagreed,


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citing several authorities, including Kosecki, 73 Mich App 293, for the principle that a
withdrawn plea can be reinstated. Wilkens, 139 Mich App at 784.

        Turning to the instant case, the trial court properly applied Plumaj, 284 Mich App 645,
Kosecki, 73 Mich App 293, and Wilkens, 139 Mich App 778, to the circumstances of defendant’s
case. Plumaj stands for the principle that substantial compliance with MCR 6.302 is sufficient as
long as the defendant’s pleas “were understandingly, knowingly, voluntarily, and accurately
made.” Plumaj, 284 Mich App at 651-652. Kosecki establishes precedent for upholding a
reinstated guilty plea where the trial court complied with MCR 6.302 when the plea was
originally accepted, but did not comply with MCR 6.302 when the plea was reinstated. The
decision in Wilkens, 139 Mich App 778, clarifies the principle in Kosecki by rejecting the
argument that a withdrawn plea is a nullity that cannot be reinstated. This clarification
distinguishes a reinstated plea from an original plea, obviating the need to comply with MCR
6.302 when a prior, properly entered, plea is reinstated.

        Defendant emphasizes that the period of time between his original plea and its
reinstatement was nearly a year as opposed to the only two weeks passed between the
defendant’s original plea and reinstatement of the plea in Kosecki. Defendant contends that the
trial court’s compliance with MCR 6.302 when the plea was originally entered in 2014 cannot
serve as substantial compliance when the plea was reinstated nearly one year later. This
approach is not consistent with the holding in Plumaj where the irregularity is evaluated
according to “the nature of the noncompliance” and determination of “the ultimate issue whether
the defendant’s pleas were understandingly, knowingly, voluntarily, and accurately made.”
Plumaj, 284 Mich App at 649, 652. The length of time between the original and the reinstated
plea is but one aspect of the analysis.

        Defendant stated his reasons for his first request to withdraw his plea on the record. He
was dissatisfied with his attorney’s failure to advise him that a plea on parole would result in a
consecutive sentence. After a new attorney was appointed, the court reiterated the mandatory
nature of consecutive sentencing when a defendant is on parole. Still the defendant entered a
valid plea that the court took under advisement. Defendant’s second motion to withdraw was
made after defense counsel received some discovery. The court again granted the withdrawal
and further granted a remand to the district court for a preliminary examination. A motion to
suppress was filed and an evidentiary hearing was scheduled. It was only after defendant was
released from parole did he ask for the reinstatement of the plea. These circumstances do not
call into question whether defendant’s original plea was understandingly, knowingly, voluntarily,
and accurately made. In fact, the record supports a conclusion that the defendant acted with the
intent to extinguish the parole consequences of his informed pleas. Accordingly, failure to
follow the procedure in MCR 6.302 did not invalidate the reinstatement of defendant’s original
plea, which defendant does not dispute was properly entered.

     III. MOTION TO WITHDRAW AND INEFFECTIVE ASSISTANCE OF COUNSEL

        Defendant also argues that the trial court erred by denying his motion to withdraw his
reinstated guilty pleas. This Court reviews a trial court’s decision on a motion to withdraw a
guilty plea for an abuse of discretion. People v Billings, 283 Mich App 538, 549; 770 NW2d
893 (2009). “An abuse of discretion occurs when the trial court chooses an outcome that falls

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outside the range of principled outcomes.” People v March, 499 Mich 389, 397; 886 NW2d 396
(2016) (citation and quotation marks omitted).

        To the extent defendant argues that his guilty plea was attributable to the ineffective
assistance of his trial counsel, because defendant did not request a Ginther1 hearing on this issue,
our review of that claim is limited to mistakes apparent on the record. People v Sabin (On
Second Remand), 242 Mich App 656, 659; 620 NW2d 19 (2000). “To demonstrate ineffective
assistance of counsel, a defendant must show that his or her attorney’s performance fell below an
objective standard of reasonableness under prevailing professional norms and that this
performance caused him or her prejudice.” People v Nix, 301 Mich App 195, 207; 836 NW2d
224 (2013) (citation omitted).

       Defendant moved to withdraw of his plea in an oral motion before sentencing and in a
written motion filed after sentencing. MCR 6.310(B)(1) grants the trial court discretion to
withdraw a plea before sentencing. The rule states:

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

         Subrule (C) provides:

                 The defendant may file a motion to withdraw the plea within 6 months
         after sentence. Thereafter, the defendant may seek relief only in accordance with
         the procedure set forth in subchapter 6.500. 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.

The rule prescribes a procedure for the court to follow where a defendant seeks to withdraw a
plea after sentencing because of an error in the plea proceeding. Further, the phrase “error in the
plea proceeding that would entitle the defendant to have the plea set aside” indicates that the
error must be one that would give the defendant a legal right to withdraw the plea. In re Jajuga
Estate, 312 Mich App 706, 718; 881 NW2d 487 (2015) (statutory language must be construed
according to its plain and ordinary meaning). Similarly, the phrase “the court must give the
advice or make the inquiries necessary” indicates that the error must have arisen from the


1
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).


                                                 -5-
omission of a required procedure. The only argument raised by defendant that pertains to
subrule (C) is that the trial court failed to comply with MCR 6.302 when his plea was reinstated.
As we have already discussed, the trial court was not required to comply with this procedure
when it reinstated a prior plea that was properly entered in compliance with MCR 3.602.

        Although defendant filed his written motion after sentencing, he moved orally to
withdraw his plea before sentencing. The trial court declined to hear his argument and advised
him to file the motion post-sentencing. By proceeding to sentencing, the trial court effectively
denied defendant’s pre-sentence motion to withdraw. Under these circumstances, it is
appropriate to review defendant’s pre-sentence motion under MCR 6.310(B)(1) to determine
whether the trial court abused its discretion by not permitting defendant to withdraw his plea
before sentencing.

        Defendant argues that withdrawal of his plea was in the interests of justice because his
former attorney coerced him into reinstating the plea. The defendant asserted that his attorney
induced him to enter the plea by falsely telling him that he otherwise would be incarcerated
immediately. Defendant asserted that he had two witnesses who could corroborate this
allegation, but he identified them only as “Kim” and “my buddy.” He never presented either
witness and never offered an affidavit or other evidentiary support for their testimony.
Accordingly, the trial court did not abuse its discretion by rejecting defendant’s argument that
withdrawal of his plea was warranted in the interests of justice based on coercion by defendant’s
prior attorney.

        Defendant also argues that his former attorney failed to review discovery materials with
him, but he does not specify what content in these materials would have led to a more favorable
outcome if his attorney had used them effectively. Defendant suggests that the materials would
have established that the cocaine found on his person was the result of an illegal search, but he
waived the evidentiary hearing that had been scheduled to decide this issue, and the record does
not contain any other factual support for defendant’s claim that the evidence was illegally seized.
In fact, the record includes a recitation by the prosecutor prior to the preliminary examination
that the questioned attorney was, in fact given the very materials the defendant denies ever
seeing. Consequently, the record does not support a finding that defendant’s former attorney
committed an objectively unreasonable error, or that there is a reasonable probability of a
different outcome if his attorney had not persuaded defendant to waive the evidentiary hearing.

        Moreover, the course of the proceedings support plaintiff’s argument that defendant
understood the proceedings and made strategic decisions throughout, to his advantage.
Defendant avoided receiving a sentence consecutive to his parole, which was his reason for
withdrawing the plea he tendered on May 7, 2014. The trial court granted his motions to remand
for a preliminary examination and an evidentiary hearing. He replaced his attorney twice.
Considering all the circumstances, defendant has failed to establish that the trial court abused its
discretion in denying his motion to withdraw his plea.




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Affirmed.

                  /s/ Cynthia Diane Stephens
                  /s/ Kirsten Frank Kelly
                  /s/ Christopher M. Murray




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