            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 PEOPLE OF THE STATE OF MICHIGAN,                                      UNPUBLISHED
                                                                       May 7, 2020
                Plaintiff-Appellee,

 v                                                                     No. 345945
                                                                       Kent Circuit Court
 BRIAN P. CARRIER,                                                     LC No. 15-003801-FC

                Defendant-Appellant.


Before: MARKEY, P.J., and JANSEN and BOONSTRA, JJ.

JANSEN, J. (dissenting).

       I respectfully dissent.

         In this case, defendant pleaded guilty to CSC-I for sexually penetrating a minor under the
age of 13. Defendant later moved for relief from judgment under MCR 6.500 et seq., claiming
that he was entitled to withdraw his plea because the trial court failed to inform him at the plea
hearing that he would have to register as a sex offender for the rest of his life, thereby, rendering
his plea not understanding and involuntary. In the alternative, defendant argued that defense
counsel was ineffective for not advising him that he would have to register as a sex offender as a
consequence of his plea. The trial court found that defendant failed to establish “good cause” to
revisit his plea-based conviction, and thus denied defendant’s motion. This appeal followed.

        A trial court’s ruling on a motion for relief from judgment is reviewed for an abuse of
discretion and its findings of fact for clear error. People v Clark, 274 Mich App 248, 251; 732
NW2d 605 (2007). “A trial court’s decision whether to hold an evidentiary hearing is reviewed
for an abuse of discretion.” People v Unger, 278 Mich App 210, 217; 749 NW2d 272 (2008). “An
abuse of discretion occurs when the court chooses an outcome that falls outside the range of
reasonable and principled outcomes.” Id.

       A defendant may file a motion to withdraw from a plea within six months after sentencing.
MCR 6.310(C)(1). If a defendant fails to pursue an appeal as of right within this time frame, then
a defendant’s convictions are reviewable only in accordance with the post judgment procedures




                                                -1-
set forth in MCR 6.501.1 MCR 6.310(C)(3). According to MCR 6.508(D), “[t]he defendant has
the burden of establishing entitlement to the relief requested.” Further, MCR 6.508(D), in
pertinent part, states that relief may not be granted to a defendant if the motion:

              (3) alleges grounds for relief, other than jurisdictional defects, which could
       have been raised on appeal from the conviction and sentence or in a prior motion
       under this subchapter, unless the defendant demonstrates

              (a) good cause for failure to raise such grounds on appeal or in the prior
       motion, and

               (b) actual prejudice from the alleged irregularities that support the claim for
       relief. As used in this subrule, “actual prejudice” means that,

                                               * * *

              (ii) in a conviction entered on a plea of guilty, guilty but mentally ill, or nolo
       contendere, the defect in the proceedings was such that it renders the plea an
       involuntary one to a degree that it would be manifestly unjust to allow the
       conviction to stand;

                                               * * *

               The court may waive the “good cause” requirement of subrule (D)(3)(a) if
       it concludes that there is a significant possibility that the defendant is innocent of
       the crime [2]

Stated differently, “MCR 6.508(D)(3) provides that a court may not grant relief to a defendant if
the motion alleges grounds for relief that could have been previously raised, unless the defendant
demonstrates both good cause for failing to raise such grounds earlier as well as actual prejudice.”
People v Johnson, 502 Mich 541, 565; 918 NW2d 676 (2018).

        In this case, defendant asserted that there were defects in the plea proceeding that rendered
his plea involuntary and unknowing. Defendant alleged that the trial court failed to inform him
that a consequence of pleading guilty to CSC-I was that he would have to register as a sex offender
for the rest of his life. Defendant argues that this failure rendered his plea unknowingly and
involuntarily made.

        This Court has held that “[t]he 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


1
  MCR 6.501 states that “unless otherwise specified by these rules, a judgment of conviction and
sentence entered by the circuit court not subject to appellate review under subchapters 7.200 or
7.300 may be reviewed only in accordance with the provisions of this subchapter.”
2
 Defendant claims only that he did not know how old IME was at the time the sexual intercourse
occurred; not that he did not partake in it. Therefore, this latter section is inapplicable.

                                                 -2-
have been capable of making an understanding plea.” People v Coleman, 327 Mich App 430, 443;
__ NW2d __ (2019). “[T]he Due Process Clause of the Fourteenth Amendment requires that the
plea . . . ‘not only . . . be voluntary but must be knowing, intelligent acts done with sufficient
awareness of the relevant circumstances and likely consequences.’ ” People v Cole, 491 Mich
325, 332-33; 817 NW2d 497 (2012), quoting Brady v United States, 397 US 742, 748; 90 S Ct
1463; 25 L Ed 2d 747 (1970). “[A] defendant entering a plea must be ‘fully aware of the direct
consequences’ of the plea.” Cole, 491 Mich at 333, quoting Brady, 397 US at 755. This Court
has specifically held 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.” People v
Fonville, 291 Mich App 363, 392; 804 NW2d 878 (2011).

        In the trial court’s opinion and order denying defendant’s motion for relief from judgment,
the trial court admitted that the sex offender registration requirement was not raised during the
plea proceeding, nor the sentencing hearing. However, the trial court indicated that even a cursory
review of the information handed to defendant, the presentence materials, and the judgment of
sentence, along with the lifetime electronic monitoring that was discussed at the plea proceeding
and sentencing hearing, would have alerted defendant to the sex offender registration requirement.

        I would conclude that regardless of how cursory of a review was required by defendant to
alert him of the sex-offender-registry requirement, the trial court failed to ensure that defendant
was accurately informed—during the plea-taking process—of the consequences of his plea, and
therefore, defendant was not able to make an understanding plea. See Coleman, 327 Mich App at
443; see Fonville, 291 Mich App at 392. Accordingly, defendant did not enter the plea
understanding, voluntary, and accurately. MCR 6.302(A).3 Pursuant to MCR 6.310(C), when an
error in the plea proceeding occurs, a “defendant [has] the opportunity to elect to allow the plea
and sentence to stand or to withdraw the plea.” MCR 6.310(C)(4).

        Defendant also alleges that his defense counsel was ineffective because counsel did not
inform him of the sex offender registration requirement, and therefore his plea was not knowingly
made. See Fonville, 291 Mich App at 394. Defendant asserts that this failure to inform by defense
counsel rendering his plea unknowingly made, along with defense counsel informing him that he
did not have grounds to withdraw or otherwise appeal his conviction, meets the good-cause and
actual prejudice requirements under MRE 6.508(D)(3)(a).

         Our Supreme Court has held that “MCR 6.508(D)(3) provides that a court may not grant
relief to a defendant if the motion alleges grounds for relief that could have been previously raised,
unless the defendant demonstrates both good cause for failing to raise such grounds earlier as well
as actual prejudice.” Johnson, 502 Mich at 565. “[G]ood cause can be established by proving
ineffective assistance of counsel.” People v Swain, 288 Mich App 609, 631; 794 NW2d 92 (2010).




3
 MCR 6.302 governs pleas of guilty and nolo contender and states, in pertinent part, “[t]he court
may not accept a plea of guilty or nolo contendere unless it is convinced that the plea is
understanding, voluntary, and accurate.”

                                                 -3-
        “The 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 at 392. In cases where sex offender registration is required, to satisfy a defense counsel’s
duty to act as constitutionally competent counsel, counsel must clearly advise a defendant of the
sex-offender-registration requirement. Id. at 394. Where defense counsel fails to inform a
defendant of the sex-offender-registration requirement, defense counsel’s performance is held to
be constitutionally defective. Id. at 395.

        In support of his motion for relief from judgment, defendant provided the trial court with
two affidavits stating that he did not know that he would be required to register as a sex offender
until he conducted his own legal research in prison, and that his trial attorney informed him that
he did not have grounds for appeal. In my view, these signed affidavits by defendant demonstrated
a good cause for his failure to raise his motion for relief from judgment earlier, see Johnson, 502
Mich at 565, but does not necessarily prove ineffective assistance of counsel, see Swain, 288 Mich
App at 631. I would conclude that other than defendant’s affidavits, defendant’s alleged
ineffectiveness of counsel claim is unsubstantiated; there is no record other than defendant’s claim
that he was not informed by counsel of the sex-offender-registration requirement or that he was
told that he did not have grounds for an appeal.

        Thus, I believe there remains a question as to whether defense counsel rendered effective
assistance, and at a minimum, an evidentiary hearing should be held to resolve the dispute. See
People v Thew, 201 Mich App 78, 96-97; 506 NW 2d 547 (1993). The resolution of this dispute
would determine whether defendant meets the good-cause requirement to prove the ineffective
assistance of counsel needed under MCR 6.508(D)(3). See Swain, 288 Mich App at 631.

        Regarding defendant’s claim of actual prejudice, Michigan jurisprudence has established
that actual prejudice may result from an involuntary plea agreement. MCR 6.508(D)(3)(b)(ii).
“The court may not accept a plea of guilty . . . unless it is convinced that the plea is understanding,
voluntary, and accurate.” MCR 6.302(A). The record in this case is clear that defendant was not
made aware of the sex-offender-registration requirement by the trial court, and therefore, did not
enter his plea understandingly, voluntarily, and accurately. See id. Accordingly, I would conclude
that defendant has demonstrated actual prejudice.

      I would vacate the trial court’s denial of defendant’s motion for relief from judgment and
remand for an evidentiary hearing regarding good cause.


                                                               /s/ Kathleen Jansen




                                                 -4-
