                          STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   July 16, 2015
                Plaintiff-Appellee/Cross-Appellant,

v                                                                  No. 309334
                                                                   Bay Circuit Court
PATRICIA MILISSA KREINER,                                          LC No. 11-010364-FC

                Defendant-Appellant/Cross-
                Appellee.


                                         ON REMAND

Before: SAAD, P.J., and O’CONNELL and MURRAY, JJ.

PER CURIAM.

        In defendant’s prior appeal we upheld the trial court’s findings and conclusions that
defendant had received the ineffective assistance of counsel when her trial counsel did not
adequately explain the prosecution’s plea offer. People v Kreiner, unpublished opinion per
curiam of the Court of Appeals, issued October 23, 2014 (Docket No. 309334). Specifically, the
plea offer was for defendant to plead to the charged crime (first-degree criminal sexual conduct,
MCL 750.520b(1)(a) (sexual penetration of a victim under 13 years of age)) and receive a
sentence of 10 years in prison. Defendant rejected that offer (and that decision was the basis for
the ineffective assistance of counsel argument), went to trial and was convicted as charged. She
was then sentenced to the statutory 25 year mandatory minimum. After a Ginther1 hearing, the
trial court held that defendant received the ineffective assistance of counsel, and ordered as a
remedy that the prosecution re-offer the plea.

        On appeal, we affirmed on the only issue presented, i.e., the prosecution’s challenge of
the trial court’s finding of ineffective assistance of counsel. Kreiner, unpub op at 1-4. On the
prosecution’s appeal, the Supreme Court issued an order addressing the remedy ordered by the
trial court, which was a plea offer of a 10-year sentence for a crime that has a 25 year statutory
mandatory minimum:




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

                                               -1-
       Defendant was charged with first-degree criminal sexual conduct, MCL
       750.520b(1)(a) (sexual penetration of a victim under 13 years of age). Pursuant to
       the terms of a proposed plea agreement, she would have pleaded guilty as charged
       in exchange for a sentence agreement for a ten-year minimum sentence.
       Defendant rejected the plea offer, but following a post-conviction Ginther
       hearing, see People v Ginther, 390 Mich 436 (1973), the trial court ruled that
       defendant’s decision to reject the offer was the result of ineffective assistance on
       the part of her trial counsel and ordered the prosecutor to re-offer the plea.
       However, MCL 750.520b(2)(b) provides that the statutorily authorized
       punishment for the offense to which defendant is to plead guilty under the
       proposed plea agreement is “imprisonment for life or any term of years, but not
       less than 25 years.” Therefore, the plea agreement calls for a sentence that the
       trial court is without authority to impose. Given this, on remand, we DIRECT the
       Court of Appeals to address the appropriate remedy, if any, for defendant under
       the circumstances of this case. See Lafler v Cooper, __ US __; 132 S Ct 1376;
       182 L Ed 2d 398 (2012). [People v Kreiner, 497 Mich 1024; 863 NW2d 41
       (2015).]

As the foregoing makes clear, the Supreme Court did not direct this Court to reconsider that part
of our opinion upholding the finding that defense trial counsel was ineffective, including the
determination that defense trial counsel’s performance in the plea process was constitutionally
deficient and that this deficient performance prejudiced defendant. Hence, in accordance with
the narrow focus of the remand order, our attention is focused exclusively on the issue of
remedy. For the reasons explained below, we vacate the trial court’s March 20, 2014 order to the
extent it required the prosecutor to re-offer the original plea deal, and remand for the court to
consider the appropriate remedy, if any, consistent with this opinion. Pursuant to the order
issued with this opinion, we retain jurisdiction.

       In Lafler, 132 S Ct at 1388, the United States Supreme Court addressed the question of
what constitutes an appropriate remedy when a defendant has shown that ineffective assistance
of counsel caused the rejection of a plea offer leading to a more severe sentence after trial. The
Supreme Court explained:

               Sixth Amendment remedies should be tailored to the injuries suffered
       from the constitutional violation and should not unnecessarily infringe on
       competing interests. Thus, a remedy must neutralize the taint of a constitutional
       violation while at the same time not grant a windfall to the defendant or
       needlessly squander the considerable resources the State properly invested in the
       criminal prosecution. [Id. at 1388-1389 (quotation marks and citations omitted).]

The Lafler Court further detailed the remedies available if, as in this case, the ineffective
assistance led to the rejection of a plea deal that results in defendant being convicted of the same
crime for which she was offered to plea:

               The specific injury suffered by defendants who decline a plea offer as a
       result of ineffective assistance of counsel and then receive a greater sentence as a
       result of trial can come in at least one of two forms. In some cases, the sole
       advantage a defendant would have received under the plea is a lesser sentence.
                                                -2-
       This is typically the case when the charges that would have been admitted as part
       of the plea bargain are the same as the charges the defendant was convicted of
       after trial. In this situation the court may conduct an evidentiary hearing to
       determine whether the defendant has shown a reasonable probability that but for
       counsel’s errors he would have accepted the plea. If the showing is made, the
       court may exercise discretion in determining whether the defendant should
       receive the term of imprisonment the government offered in the plea, the sentence
       he received at trial, or something in between. [Id. at 1389 (citations omitted;
       emphasis added).]

The Supreme Court expressed that “the trial court must weigh various factors” in determining the
appropriate remedy, and though those factors were not defined by the Court, it noted that
“[p]rinciples elaborated over time in decisions in state and federal courts, and in statutes and
rules, will serve to give more complete guidance as to the factors that should bear on the exercise
of the judge’s discretion.” Id. at 1389. However, the Court did describe two considerations that
are relevant in fashioning a remedy. Id. First, a court may take account of whether a defendant
has expressed a willingness to accept responsibility for his or her actions. Id. Second, although
it is difficult to restore the parties to the positions they occupied before the rejection of the plea
offer, “that baseline can be consulted in finding a remedy that does not require the prosecution to
incur the expense of conducting a new trial.” Id. That may include consideration of “any
information concerning the crime that was discovered after the plea offer was made.” Id. See,
also, People v McCauley, 493 Mich 872; 821 NW2d 569 (2012).

        As our Supreme Court observed in its order remanding this case, the plea agreement
called for a sentence that the trial court lacked authority to impose. The plea agreement would
have allowed defendant to plead guilty as charged to CSC-I in exchange for the prosecutor
requesting a 10-year cap on the minimum sentence. But MCL 750.520b(2)(b) provides that
CSC-I is punishable “[f]or a violation that is committed by an individual 17 years of age or older
against an individual less than 13 years of age by imprisonment for life or any term of years, but
not less than 25 years.” It is undisputed that at the time of the offense defendant was more than
17 years of age and the victim was less than 13 years of age; defendant was therefore subject to
the 25-year mandatory minimum sentence set forth in MCL 750.520b(2)(b). Accordingly, the
trial court lacked authority to impose a 10-year minimum sentence as provided in the plea
agreement.2 Consequently, the first remedy described by the Lafler Court—the state re-offering
the original plea deal—is not available.

        Under Lafler that leaves two options for the trial court: (1) impose the sentence
defendant received after trial or (2) impose “something in between” that 25-year sentence and
what was originally offered. Lafler, 132 S Ct at 1388. Although there is no current suggestion
that the prosecutor would offer defendant the ability to plead to a lesser offense that would not be
subject to the 25-year mandatory minimum sentence set forth in MCL 750.520b(2)(b) (which


2
  The inability of a prosecutor to waive the statutory mandatory minimum is an unstated premise
of the Supreme Court’s remand order, given that the Supreme Court stated that the trial court
lacked authority to impose the 10-year minimum sentence called for in the plea agreement.

                                                 -3-
would be “something in between”), because this issue was initially raised by the Supreme Court,
neither the prosecutor nor defense counsel has had the opportunity to articulate their current
positions. And, because the Lafler Court emphasized the importance of the trial court’s
discretionary authority on the appropriate remedy (if any)3, we remand for the trial court to
determine in the first instance which of the two remaining remedies under Lafler best remedies
the constitutional violation in this case.

        We vacate the trial court’s March 20, 2014 order to the extent it required the prosecutor
to re-offer the original plea deal, and remand for the court to consider the appropriate remedy, if
any, consistent with this opinion. Pursuant to the order issued with this opinion, we retain
jurisdiction.



                                                            /s/ Henry William Saad
                                                            /s/ Peter D. O’Connell
                                                            /s/ Christopher M. Murray




3
  “Today’s decision leaves open to the trial court how best to exercise that discretion in all the
circumstances of the case.” Id. at 1391.

                                                -4-
                               Court of Appeals, State of Michigan

                                                  ORDER
                                                                               Henry William Saad
People of MI v Patricia Mil issa Kreiner                                         Presiding Judge

Docket No.     309334                                                          Peter D. O'Connell

LC No.         11-010364-FC                                                    Christopher M. Murray
                                                                                Judges



                Pursuant to the opinion issued concurrentl y with this order, this case is REMAND ED for
furthe r proceedi ngs consistent with the opinion of this Court. We retain ju risdiction.

                Proceedings on remand in this matter sha ll commence w ithin 28 days of the C lerk's
certification of this o rder, and they shall be given priority on remand until they arc concluded. As stated
in the accompanying opi nion, People v Kre iner, unpubl ished opi ni on per curiam of the Court of Appeals
(Docket No. 309334), the trial court shall determine, consistent wi th this opi nion, the appropriate
remedy, if any, for the violation of defendant's sixth am endment right lo the effective assistance of
counsel. The proceedings on remand are limited to this issue .

               Appellant shall file w ith this Court a copy of the order entered by the trial court on
remand within 14 days of its entry, along wi th any written opinion contai ning the court's reasoning.    o
more than 14 days after the filing of the order and opinion, both parties may fi le a brief with this Cou11
addressing the trial court's decision.




                         A true copy entered and certified by Jerome W . Z immer Jr., Chief C lerk. on




                                JUL 16 2015
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                                           Date                                Chic~
