              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    PEOPLE OF THE STATE OF MICHIGAN,                                 UNPUBLISHED
                                                                     April 9, 2020
                 Plaintiff-Appellee,

    v                                                                No. 338712
                                                                     Iosco Circuit Court
    CLYDE RICHARD GREEN,                                             LC No. 13-008088-FH

                 Defendant-Appellant.


Before: STEPHENS, P.J., and SERVITTO and RONAYNE KRAUSE, JJ.

PER CURIAM.

         Defendant appeals by leave granted1 the trial court’s denial of his motion to withdraw his
no contest plea to attempted animal abandonment or cruelty, second offense, MCL 750.50(4)(a);
MCL 750.50(4)(c); MCL 750.92(3), and violation of the bodies of dead animals act, third or
subsequent offense, MCL 287.679(1); MCL 287.679(2), based on ineffective assistance of
counsel. Defendant was sentenced to serve two years of probation for both convictions. This
matter is before this Court on remand from the Michigan Supreme Court “for consideration, as on
leave granted, of whether the defendant was denied the effective assistance of counsel by counsel’s
failure to advise the defendant that the offense to which he was pleading no contest was a felony.”
People v Green, 503 Mich 921, 921 (2018). We vacate and remand.

                           I. FACTS AND PROCEDURAL HISTORY

        Defendant pleaded no contest to one count of attempted animal abandonment or cruelty,
second offense, and one count of violating the bodies of dead animals act, third or subsequent
offense. In exchange, the prosecutor dismissed several other charges against defendant including
a second-offense habitual-offender notice, and related charges against defendant’s wife.
Defendant’s plea was tendered with a sentence agreement that defendant would not receive any
term of incarceration. At the plea hearing, the court made a record of the maximum penalties for
the defendant’s charges which were incarceration for up to one year for each of the counts and a


1
    People v Green, 503 Mich 921 (2018).


                                                -1-
litany of other penalties including fines, community service and restriction on animal ownership.
The word “felony” was not used in the extensive recitation.

        Prior to sentencing, defendant moved to withdraw his plea on the basis that the court failed
to inform him that he was pleading to a felony instead of a misdemeanor offense. At sentencing,
defendant’s trial counsel stated he had reviewed the plea transcript and agreed that while the
penalty for each charge was placed on the record, there was no mention of whether one was a
felony or a misdemeanor. Counsel acknowledged that he thought the charges at issue were
misdemeanors. The trial court denied defendant’s motion. The court first noted that it had no
affirmative duty to inform the defendant that the charges were felonies. The court noted that both
the defendant and his attorney had the mistaken understanding that the charge for which the no-
contest plea was entered was a misdemeanor. After this initial denial, the defendant renewed his
request to withdraw his plea after sentencing asserting ineffective assistance of counsel. This
motion was also denied with the court finding that counsel was not ineffective because despite his
erroneous belief that the plea was to a misdemeanor, counsel had achieved a significant benefit for
the defendant in the dismissal of the other charges against him and his wife with no jail time.

        Defendant filed a delayed application for leave to appeal in this Court that was denied for
lack of merit in the grounds presented. People v Green, unpublished order of the Court of Appeals,
entered July 25, 2017 (Docket No. 338712). Defendant then filed an application for leave to appeal
to the Michigan Supreme Court, which remanded the matter to this Court for consideration as on
leave granted. People v Green, 503 Mich 921 (2018).

                                  II. STANDARD OF REVIEW

        “Whether a defendant received ineffective assistance of trial counsel presents a mixed
question of fact and constitutional law.” People v Armstrong, 490 Mich 281, 289; 806 NW2d 676
(2011) (citation omitted). “A judge must first find the facts, then must decide whether those facts
establish a violation of the defendant’s constitutional right to the effective assistance of counsel.”
People v Grant, 470 Mich 477, 484; 684 NW2d 686 (2004). “The trial court’s factual findings are
reviewed for clear error, while its constitutional determinations are reviewed de novo.” People v
Matuszak, 263 Mich App 42, 48; 687 NW2d 342 (2004). Clear error exists where the reviewing
court is left with a definite and firm conviction that the lower court made a mistake. Armstrong,
490 Mich at 289.

                                          III. ANALYSIS

        Defendant argues that his plea was involuntary because he received ineffective assistance
of counsel when defense counsel failed to inform him that one of the charges to which he pled no
contest was a felony.2 We agree.




2
  See MCL 287.679(2) (“A person who is convicted of violating this act or a rule promulgated
under this act 3 or more times is guilty of a felony punishable by imprisonment for not more than
1 year or a fine of not more than $2,000.00, or both.”).

                                                 -2-
       “Both the United States and the Michigan Constitutions guarantee a defendant the right to
counsel. US Const, Am VI; Const 1963, art 1, § 20.” People v Meissner, 294 Mich App 438, 459;
812 NW2d 37 (2011). The right to counsel includes the right to the effective assistance of counsel,
People v Vaughn, 491 Mich 642, 669; 821 NW2d 288 (2012), and extends to the plea-bargaining
process, Lafler v Cooper, 566 US 156, 162; 132 S Ct 1376; 182 L Ed 2d 398 (2012).

        The Supreme Court set out the standard for ineffective assistance of counsel claims in
Strickland v Washington, 466 US 688, 687; 104 S Ct 2052; 80 L Ed 2d 674 (1984). In Strickland,
466 US at 687, the Supreme Court held that a conviction could be reversed for ineffective
assistance of counsel if defense counsel was “deficient” and defense counsel’s defective actions
prejudiced the defendant. To prove ineffective assistance of counsel, defendant must show that
“(1) counsel’s performance fell below an objective standard of reasonableness and (2) but for
counsel’s deficient performance, there is a reasonable probability that the outcome would have
been different.” People v Trakhtenberg, 493 Mich 38, 51; 826 NW2d 136 (2012). “A claim of
ineffective assistance of counsel may be based on counsel’s failure to properly inform the
defendant of the consequences of accepting or rejecting a plea offer.” People v Douglas, 296 Mich
App 186, 205; 817 NW2d 640 (2012), aff’d in part, rev’d in part 496 Mich 557; 852 NW2d 587
(2014). “In the context of pleas a defendant must show the outcome of the plea process would
have been different with competent advice.” Lafler, 566 US at 163. “The test is whether the
attorney’s assistance enabled the defendant to make an informed and voluntary choice between
trial and a guilty plea.” People v Corteway, 212 Mich App 442, 446; 538 NW2d 60 (1995). “In
order to satisfy the second, or ‘prejudice,’ requirement, the defendant must show that there is a
reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would
have insisted on going to trial.” Hill v Lockhart, 474 US 52, 59; 106 S Ct 366; 88 L Ed 2d 203
(1985).

         Defendant appeals the trial court’s order denying his motion to withdraw his plea after
sentencing. “Guilty- and no-contest-plea proceedings are governed by MCR 6.302.” People v
Cole, 491 Mich 325, 330; 817 NW2d 497 (2012). MCR 6.310(C) governs plea withdrawal after
sentencing. MCR 6.310(C)(4) instructs the trial court to allow withdrawal if it “determines that
there was an error in the plea proceeding that would entitle the defendant to have the plea set
aside. . . .” “The failure to accurately inform a defendant of the consequences of his or her plea
can lead to a defect in the plea-taking process because the defendant may not have been capable
of making an understanding plea.” People v Coleman, 327 Mich App 430, 443; 937 NW2d 372
(2019). “The court may not accept a plea of guilty or nolo contendere unless it is convinced that
the plea is understanding, voluntary, and accurate.” MCR 6.302. “Guilty pleas have been found
to be involuntary or unknowing on the basis of ineffective assistance of counsel where defense
counsel failed to explain adequately the nature of the charges or the consequences of the guilty
plea.” People v Corteway, 212 Mich App 442, 445; 538 NW2d 60 (1995) citing People v Thew,
201 Mich App 78, 91; 506 NW2d 547 (1993).

       In Brady v United States, the United States Supreme Court stated that a defendant entering
a plea must be “fully aware of the direct consequences” of the plea. 397 US 742, 755; 90 S Ct
1463; 25 L Ed 2d 747 (1970) (citation and quotation marks omitted). Since Brady, a distinction
developed between the meaning of “direct consequences” and “collateral consequences.” Until
the Supreme Court’s decision in Padilla v Kentucky, “the longstanding and unanimous position of
the federal courts was that reasonable defense counsel generally need only advise a client about

                                                -3-
the direct consequences of a criminal conviction.” 559 US 356, 375-376; 130 S Ct 1473; 176 L Ed
2d 284 (2010) (ALITO, J. concurring in judgment). Padilla held that the Sixth Amendment also
required an attorney for a criminal defendant to provide advice about the risk of deportation, a
non-criminal consequence, arising from a guilty plea. Chaidez v United States, 568 US 342, 344,
354; 133 S Ct 1103, 1105; 185 L Ed 2d 149 (2013). The Padilla Court reached this holding without
determining whether deportation was a direct or collateral consequence of a criminal conviction,
but rather finding the distinction “ill suited to evaluating a Strickland claim concerning the specific
risk of deportation.” Padilla, 559 US at 366. Importantly, the Court clarified that it had “never
applied a distinction between direct and collateral consequences to define the scope of
constitutionally ‘reasonable professional assistance’ required under Strickland, 466 U.S., at 689,
104 S.Ct. 2052.” Padilla, 559 US at 365. As explained by the Supreme Court in Chaidez:

        . . .Padilla did something more. Before deciding if failing to provide such advice
       “fell below an objective standard of reasonableness,” Padilla considered a
       threshold question: Was advice about deportation “categorically removed” from the
       scope of the Sixth Amendment right to counsel because it involved only a
       “collateral consequence” of a conviction, rather than a component of the criminal
       sentence? 559 U.S., at ––––, 130 S.Ct., at 1482. In other words, prior to asking how
       the Strickland test applied (“Did this attorney act unreasonably?”), Padilla asked
       whether the Strickland test applied (“Should we even evaluate if this attorney acted
       unreasonably?”). [Chaidez, 568 US at 349].

In other words, Padilla asked whether there are some issues that are taken out of the purview of
direct or collateral consequences, and instead considered initially for their worth in the category
of advice expected of counsel provided by the Sixth Amendment. See Chaidez, 568 US at 355
(“Our first order of business was thus to consider whether the widely accepted distinction between
direct and collateral consequences categorically foreclosed Padilla’s claim, whatever the level of
his attorney’s performance.”). In making this finding in the context of deportation, the Padilla
Court “relied on the special nature of deportation—the severity of the penalty and the automatic
way it follows from conviction.” Id. (Quotation marks and citation omitted). It also considered
deportation’s “close connection to the criminal process,” finding it “ ‘most difficult’ to divorce the
penalty from the conviction in the deportation context.” Padilla, 559 US at 366 (citation omitted).
Having found that advice regarding deportation was within the ambit of the Sixth Amendment
right to counsel, the Court applied Strickland to Padilla’s claim. The Court held that “[t]he weight
of prevailing professional norms supports the view that counsel must advise her client regarding
the risk of deportation.” Id. at 367. In Padilla’s case, the Court considered how easily counsel
could have determined the consequences of Padilla’s plea by just reading the removal statute, and
held that where the law stating the consequence was “succinct,” “straight forward” and “truly
clear,” “the duty to give correct advice [was] equally clear.” Id. at 369.

        Incorporating the post-Padilla analytical framework into Michigan jurisprudence, our
Supreme Court noted, “While courts have relied on different tests to distinguish direct from
collateral consequences, the prevailing distinction relied on by a majority of courts turns on
whether the result represents a definite, immediate and largely automatic effect on the range of the
defendant’s punishment.” People v Cole, 491 Mich 325, 333-334; 817 NW2d 497 (2012).



                                                 -4-
        Relying on the logic in Padilla, the Court in People v Fonville, held, “that defense counsel
must advise a defendant that registration as a sexual offender is a consequence of the defendant’s
guilty plea” and that “[t]he failure to inform a pleading defendant that the plea will necessarily
require registration as a sex offender affects whether the plea was knowingly made.” Fonville,
291 Mich App 363, 392; 804 NW2d 878 (2011). In Fonville, the defendant sought to withdraw
his guilty plea to one count child enticement claiming that counsel failed to inform him that the
plea included registering as a sex offender. Like in Padilla, the Court in Fonville, found the direct
versus collateral distinction ill-suited to classify the consequence; thereby making the discussion
of collateral consequences in Fonville obiter dicta. See Id. at 393 (“Our decision is limited to
distinguishing the unique and mandatory nature of the specific consequence of the sex-offender-
registration requirement from the common, potential, and incidental consequences associated with
criminal convictions.”). The Court reasoned that while sex offender registration was not a criminal
sanction, it was a severe penalty given the stigma and domicile restrictions associated with
registering. It further found registration was “intimately related to the criminal process” because
of its “automatic result” for certain defendants. Id. at 391-392. In the context of Fonville’s
Strickland claim, the Court held that counsel’s duty to provide correct advice about the registration
requirement was clear when the sex-offender-registration statute was “succinct, clear, and
explicit,” and in existence at the time of Fonville’s plea. Id. at 392

        In the instant matter of defendant’s plea, counsel did not dispute that he failed to tell
defendant that a conviction for a violation of the bodies of dead animals act was a one-year felony
instead of a misdemeanor offense. In his affidavit attached to his motion to withdraw his plea,
defendant averred that he would not have accepted the plea agreement with the knowledge that he
was pleading no contest to a felony. Defendant argues that although he was previously found
guilty of a felony involving the maltreatment of animals in Lapeer County, that fact did not absolve
counsel of the obligation to properly advise defendant of the nature of the charges. Defendant
contends that the distinction between a misdemeanor and felony offense is significant because a
conviction for an additional felony carries with it collateral consequences such as being a habitual
offender that are not involved when pleading to a misdemeanor.

        We agree with the trial court that despite defense counsel’s erroneous advice regarding the
felonious nature of the plea, counsel achieved a good result for the defendant. However, our
analysis cannot focus on that fact alone. The lay defendant also looks to counsel to provide him
with accurate information upon which to rely in deciding how to plead where the consequences
arising from a felony criminal conviction are inevitable and automatic. Justice Alito, in his
concurrence in Padilla, acknowledged, “criminal convictions can carry a wide variety of
consequences other than conviction and sentencing, including civil commitment, civil forfeiture,
the loss of the right to vote, disqualification from public benefits, ineligibility to possess firearms,
dishonorable discharge from the Armed Forces, and loss of business or professional licenses.”
Padilla, 559 US at 376 (ALITO, J. concurring in judgment). While a misdemeanor does not
deprive a person in Michigan of the right to vote, a felony with a term of incarceration does during
the period of confinement. A convicted felon is also barred from jury service. The defendant in
this case already had a felony conviction prior to his plea but even then, he faced additional direct
and automatic consequences with an additional felony. By way of example, a convicted felon may
not possess a firearm for three years post-conviction. See MCL750.224f(1). A defendant should
not be left to discern the consequences of a plea without assistance.


                                                  -5-
        We also conclude that counsel could have easily determined from reading the statute that
defendant was charged with a felony. MCL 287.679(2) plainly states that “[a] person who is
convicted of violating this act or a rule promulgated under this act 3 or more times is guilty of a
felony punishable by imprisonment for not more than 1 year or a fine of not more than $2,000.00,
or both.” We see no reason, under prevailing professional norms, for counsel to have omitted from
his advice to defendant during plea negotiations the fact that MCL 287.679 was a felony offense.
Counsel’s performance was deficient in this regard. Consequently, defendant’s plea was
unknowing where the full nature of the charges and the consequences of the guilty plea were not
explained to him. The advice given affected defendant’s decision either to plead or go to trial.

        We acknowledge that if defendant withdraws his plea, he exposes himself to significant
jeopardy. However, just as post-Lockridge3 defendants have been given the opportunity to seek
review of their sentences and the possibility of imposition of a longer sentence on review, this
defendant is entitled to exercise his free will and rely on his constitutional rights to enter a knowing
and intelligent plea.

        Accordingly, we vacate the circuit court’s order denying defendant’s motion to withdraw
his plea, and defendant’s sentence. We remand to the trial court with instructions to allow
defendant to withdraw his no contest plea. If defendant withdraws the plea, the prosecutor may
reinstitute all charges. We do not retain jurisdiction.

          Vacated and remanded.




                                                                /s/ Cynthia Diane Stephens
                                                                /s/ Deborah A. Servitto
                                                                /s/ Amy Ronayne Krause




3
    People v Lockridge, 498 Mich 358; 870 NW2d 502 (2015).

                                                  -6-
