                           Court of Appeals, State of Michigan

                                            ORDER
                                                                       Michael J. Kelly
People of MI v Dominique Demetrius Miller                                Presiding Judge

Docket No.   337460                                                    David H. Sawyer

LC No.       15-009753-01-FC                                           Jane E. Markey
                                                                         Judges


               The Court orders that the motion for reconsideration is GRANTED, and this Court’s
opinion issued November 20, 2018 is hereby VACATED. A new opinion is attached to this order.




                                                      /s/ Michael J. Kelly




                               February 5, 2019
            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PEOPLE OF THE STATE OF MICHIGAN,                                  UNPUBLISHED
                                                                  February 5, 2019
              Plaintiff-Appellee,

v                                                                 No. 337460
                                                                  Wayne Circuit Court
DOMINIQUE DEMETRIUS MILLER, also                                  LC No. 15-009753-01-FC
known as DOMINIQUE DEMETROUIS
MILLER, also known as DOMINIQUE
DEMETRUIS MILLER, also known as
DOMINIQUE DETRIOUS MILLER,

              Defendant-Appellant.


                                    ON RECONSIDERATION

Before: M. J. KELLY, P.J., and SAWYER and MARKEY, JJ.

PER CURIAM.

        Defendant, Dominique Miller, appeals by delayed leave granted1 his convictions based
upon a plea of nolo contendere for armed robbery, MCL 750.529, and possession of a firearm
during the commission of a felony (felony-firearm), MCL 750.227b. Miller was sentenced to 6
to 20 years’ imprisonment for his armed robbery conviction and a consecutive two years’
imprisonment for his felony-firearm conviction. Because there are no errors warranting relief,
we affirm.

                                      I. BASIC FACTS

        In November 2015, Clarence Watkins was robbed at gunpoint. Following the robbery, he
identified Miller as one of the individuals who robbed him. Miller was arrested and charged
with armed robbery, breaking and entering a vehicle causing damage, MCL 750.356a(3),
possession of a firearm by a felon (felon-in-possession), MCL 750.224f, forgery of a license

1
 People v Miller, unpublished order of the Court of Appeals, entered October 26, 2017 (Docket
No. 337460).
plate, MCL 257.257, and concealing or misrepresenting the identity of a motor vehicle with the
intent to mislead, MCL 750.415(2). The district court dismissed the latter two charges, but
bound Miller over on the armed robbery, breaking and entering a vehicle, and felon-in-
possession charges. Thereafter, the prosecution amended the information to add a felony-firearm
charge.

       In January 2016, the prosecution filed a motion in limine to admit incriminating
statements made by Miller over the jail phone to his lawyer. An evidentiary hearing on the
motion was never held because, pursuant to a plea bargain with the prosecution, Miller entered a
plea of nolo contendere. As part of the bargain, defendant agreed to serve 6 to 20 years’
imprisonment for armed robbery with a consecutive two years’ imprisonment for felony-firearm,
and the prosecution agreed to dismiss the remaining charges and the habitual sentence
enhancement. The trial court accepted Miller’s plea.

        In February 2016, Miller sought to withdraw his plea, alleging that he had been
improperly advised by his lawyer. Miller claimed that his lawyer did not give him an
opportunity to think about the plea, which forced him to make a “split second” decision at the
last minute. Additionally, Miller’s lawyer sought to withdraw as counsel based on a breakdown
in the attorney-client relationship. The trial court, however, held that Miller’s “second thoughts”
were insufficient to justify withdrawal of the plea or withdrawal of Miller’s lawyer.

        In April 2016, at the sentencing hearing, Miller’s lawyer stated that, upon reviewing the
jail recordings, he had determined that they were protected by attorney-client privilege. He
added that he had not had adequate time to review the recordings before Miller pleaded, so the
information he gave to Miller was incomplete and false. Miller’s lawyer asked the court to
reinstate Miller’s motion to withdraw his plea or to stay further proceedings pending an
interlocutory appeal to this Court. The trial court found no basis to set aside the plea, but it
adjourned sentencing. This Court subsequently issued an order denying defendant’s application
for leave to appeal.2

        Miller was sentenced in June 2016. At that time, his minimum sentencing guidelines
range was calculated to be 81 to 135 months’ imprisonment. Although it amounted to a
downward departure, pursuant to the sentencing agreement, the trial court sentenced Miller to 6
to 20 years for the armed robbery conviction.

        In December 2016, Miller filed a new motion to withdraw his plea. He also requested the
court correct his invalid sentence or grant him resentencing. With regard to his motion to
withdraw his plea, Miller asserted that he was rushed into pleading, he did not have an
opportunity to review the evidence because his lawyer was ineffective, his plea was based on the
illusory threat of having a privileged conversation admitted at trial, and he had agreed to the
sentence based on sentencing guidelines that were inaccurately scored. He also challenged the
scoring of prior record variable (PRV) 2 and offense variable (OV) 13.



2
 People v Miller, unpublished order of the Court of Appeals, entered May 17, 2016 (Docket No.
331899).


                                                -2-
        At a February 2017 hearing, Miller conceded that OV 13 was properly scored.
Additionally, the court found that PRV 2 was improperly scored, and it amended the sentencing
information report to reflect a correct score. The revision to the PRV changed Miller’s minimum
guidelines range from 81 to 135 months to 51 to 85 months. The court, however, declined to
resentence Miller because Miller had received the exact sentence that he had agreed to receive
under the plea agreement. The court also held that Miller was not entitled to withdraw his plea,
noting that he had failed to establish a defect in the plea proceeding.

                                        II. SENTENCING

                                 A. STANDARD OF REVIEW

       Miller argues that the trial court erred by denying his motion to withdraw his plea.
Challenges to a court’s decision on a motion to withdraw a plea made after sentencing are
reviewed for an abuse of discretion. People v Seadorf, 322 Mich App 105, 109; 910 NW2d 703
(2017). A trial court abuses its discretion when its decision falls outside the range of principled
outcomes. People v Anderson, 501 Mich 175, 182; 912 NW2d 503 (2018).

                                         B. ANALYSIS

        In order to be effective, a plea of nolo contendere must be voluntary and knowing.
People v Cole, 491 Mich 325, 332-333; 817 NW2d 497 (2012). A knowing plea is an
“intelligent act[] done with sufficient awareness of the relevant circumstances and likely
consequences,” and a voluntary plea is made by a defendant “fully aware of the direct
consequences of the plea.” Id. at 333 (quotation marks and citation omitted). “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(A). “A defendant seeking to withdraw his
or her plea after sentencing must establish a defect in the plea-taking process.” People v Brown,
492 Mich 684, 693; 822 NW2d 208 (2012).

        Miller contends that his plea was defective because his plea bargain was illusory. “[A]n
illusory plea bargain is one in which the defendant is led to believe that the plea bargain has one
value when, in fact, it has another value.” People v Williams, 153 Mich App 346, 350; 395
NW2d 316 (1986). In exchange for Miller’s plea, the prosecution dismissed two of the charges
against him, dismissed the habitual offender sentencing enhancement, and agreed that Miller
would be sentenced to 6 to 20 years for the armed robbery conviction. Thus, the plea agreement
was not illusory.

        Additionally, Miller has not identified any defect in the plea-taking process that would
entitle him to relief. He testified that, before he signed the settlement offer, he discussed the
terms of the agreement with his lawyer, that he understood the terms of the agreement, he was
satisfied with his lawyer’s representation, and he understood the rights he was giving up by
pleading. Miller also stated that he understood that he would serve two years’ imprisonment for
felony-firearm and 6 to 20 years for armed robbery. Accordingly, based on Miller’s testimony it
is clear that his plea was voluntary and knowing, so Miller is not entitled to withdrawal of his
plea.




                                                -3-
        Next, in a pro se supplemental brief, filed under Supreme Court Administrative Order
No. 2004-6, Miller argues that he should have been allowed to withdraw his plea because he “felt
rushed and coerced” into accepting the plea because his lawyer did not think that he could
affectively represent him as a result of the jail calls, the lack of discovery, and the upcoming trial
date. Despite his assertion on appeal, when he pleaded no contest, Miller testified that no one
had threatened or coerced him in any way in order to get him to plead. His contention that he
was coerced is, therefore, contrary to his testimony at the plea hearing.

        Miller also argues in his Standard 4 brief that his plea was not accurate because the
evidence at the preliminary examination did not support a finding that he was guilty of the
charged offense. However, we need not look at the preliminary examination testimony in this
case. At the plea hearing, Miller, through his lawyer, stipulated that the court could use the
investigator’s report as the factual basis for the conviction. According to the report, Miller was
identified as one of two men who robbed Watkins at gunpoint. Thus, there was sufficient
evidence to establish the elements of armed robbery. See People v Smith, 478 Mich 292, 319;
733 NW2d 351 (2007) (“The elements of armed robbery are: (1) an assault; (2) a felonious
taking of property from the victim's presence or person; and (3) while the defendant is armed
with a weapon.”).

       Miller nevertheless contends that his plea bargain was tainted because he was led to
believe that the recording of the phone call between him and his lawyer (or his lawyer’s
paralegal) would be admitted at trial when, in reality, the conversations were protected by
attorney-client privilege. We disagree. An “element of confidentiality” must exist in order for a
defendant to assert that a statement is protected by attorney-client privilege. See People v
Compeau, 244 Mich App 595, 597; 625 NW2d 120 (2001). In order to ensure that a
communication is privileged, a defendant must “take reasonable precautions to keep his
remark[s] confidential.” Id. Here, Miller spoke to his lawyer over a jail phone line that he knew
was monitored and recorded, so he waived any claim of confidentiality. See Bassett v State, 895
NE2d 1201, 1207 (Ind, 2008) (with respect to attorney-client privilege, a conversation over a jail
phone line that a defendant knows to be recorded is not confidential); McWatters v State, 36 So
3d 613, 636 (Fla, 2010) (telephone calls between a defendant and attorney subject to monitoring
and recording are not subject to attorney-client privilege). See also United States v Friedman,
300 F3d 111, 123 (CA 2, 2002) (where a facility provides notice to inmates that calls may be
monitored, a defendant has no reasonable expectation of privacy during phone conversations).
Therefore, Miller’s contention that he was prejudiced by the threatened admission of an
inadmissible recording of his jail phone call is without merit.

        Miller also argues that that his plea was entered without awareness of the relevant
circumstances and likely consequences because his plea was based upon an incorrectly
calculated minimum sentencing guidelines range. An incorrectly calculated guidelines range can
invalidate an otherwise voluntary plea. People v Smith, 319 Mich App 1, 9; 900 NW2d 108
(2017). Yet, “a defendant waives appellate review of a sentence that exceeds the guidelines by
understandingly and voluntarily entering into a plea agreement to accept that specific sentence.”
People v Wiley, 472 Mich 153, 154; 693 NW2d 800 (2005). “[A] defendant who pleads guilty
with knowledge of the sentence will not be entitled to appellate relief on the basis that the
sentence is disproportionate.” Id. Here, because Miller agreed to the sentence imposed as part



                                                 -4-
of the plea bargain, he waived appellate review of the sentence, notwithstanding any errors in the
calculation of the sentencing guidelines.

        Next, Miller argues that his lawyer provided ineffective assistance. “[I]n reviewing a
claim of ineffective assistance of counsel arising out of a guilty plea, the courts should focus
upon whether the defendant’s plea was made voluntarily and understandingly.” In re Oakland
Co Prosecutor, 191 Mich App 113, 120; 477 NW2d 455 (1991). In doing so, a defendant
seeking relief must meet the familiar two-pronged standard by showing that his lawyer’s
representation was below an objective standard of reasonableness and that there is a reasonable
probability that, but for his lawyer’s deficient performance, the outcome of the proceedings
would have been different. People v Douglas, 496 Mich 557, 592; 852 NW2d 587 (2014). “In
demonstrating prejudice, the defendant must show the outcome of the plea process would have
been different with competent advice.” Id. (quotation marks and citation omitted). In this case,
Miller has failed to establish that his lawyer was deficient. He asserts only that his lawyer failed
to investigate, but he does not identify what his lawyer failed to investigate. To the extent that he
believes his lawyer should have discovered the alleged illusory nature of the plea bargain, we
discern no error because the plea bargain was not illusory. Additionally, Miller’s lawyer was not
ineffective for failing to advise Miller that the jail recordings were inadmissible because of
attorney-client privilege because, as indicated above, the conversations were not privileged.
Accordingly, Miller has failed to establish that his lawyer provided ineffective assistance. See
People v Putman, 309 Mich App 240, 248; 870 NW2d 593 (2015) (a defendant must establish
the factual predicate for his claim that his lawyer provided ineffective assistance).3

        Finally, Miller asserts that he should be resentenced. Miller contends that he is entitled to
resentencing based upon the erroneous calculation of PRV 2 and OV 13. However, he conceded
in the proceedings below that OV 13 was properly scored.4 Further, the trial court already
corrected the misscoring of PRV 2. Accordingly, Miller is not entitled to relief. Miller also
argues he is entitled to resentencing because his sentence is not proportionate. However, it is
well established that “a defendant who voluntarily and understandingly entered into a plea
agreement that included a specific sentence waives appellate review of that sentence.” People v
Billings, 283 Mich App 538, 550; 770 NW2d 893 (2009).


3
  In his Standard 4 brief, Miller also suggests he should be allowed to withdraw his plea because
(1) there was no trust between him and his lawyer, and (2) his lawyer admitted that he was
ineffective. However, when he entered his plea, Miller testified that he was satisfied with his
lawyer’s representation of him. The fact that he later changed his mind is not a defect in the
plea-taking process that would entitle Miller to withdrawal of his plea. See Brown, 492 Mich at
693. Moreover, although Miller’s lawyer suggested that he provided ineffective assistance, in
context, that statement was based on his belief that the phone recordings were protected by
attorney-client privilege. However, as indicated above, the conversation was not privileged.
Therefore, Miller is not entitled to relief on that basis. Stated differently, the legal advice
provided by Miller’s lawyer was not inaccurate despite his lawyer’s later-formed belief that it
was inaccurate.
4
  Even if OV 13 were misscored, it would not result in a different outcome. Again, because
Miller agreed to a specific sentence, he waived appellate review of his sentence, including
whether the guidelines were properly scored. See Billings, 283 Mich App at 550.


                                                -5-
Affirmed.

                  /s/ Michael J. Kelly
                  /s/ David H. Sawyer
                  /s/ Jane E. Markey




            -6-
