                          STATE OF MICHIGAN

                           COURT OF APPEALS


PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   March 22, 2018
              Plaintiff-Appellee,

v                                                                  No. 337424
                                                                   Kent Circuit Court
MARK-ANTHONY DUANE ASHLEY,                                         LC No. 16-003636-FC

              Defendant-Appellant.


Before: O’CONNELL, P.J., and HOEKSTRA and SWARTZLE, JJ.

PER CURIAM.

       Defendant appeals by delayed leave granted1 his convictions for armed robbery, MCL
750.529; and first-degree home invasion, MCL 750.110a(2). Defendant entered into a plea
agreement and pleaded guilty to one count of armed robbery and one count of first-degree home
invasion. The trial court sentenced defendant to 10 to 50 years of imprisonment for the armed-
robbery conviction and 5 to 20 years of imprisonment for the first-degree home-invasion
conviction. We vacate the trial court’s denial of defendant’s motion to withdraw his guilty plea
and remand for further proceedings consistent with this opinion.

                                      I. BACKGROUND

       This case results from an armed robbery that took place on April 11, 2016, in Grand
Rapids, Michigan. Defendant entered into a dwelling after asking the female tenant if he could
use the bathroom. He then produced a gun and robbed the tenant of a phone, keys, and money.
Subsequently, defendant forced the tenant to go to an ATM and withdraw money.

       Defendant pleaded guilty to armed robbery and first-degree home invasion under a single
plea agreement. The plea agreement stated that if defendant pleaded guilty to these two offenses,
the prosecution would dismiss the additional charges of unlawful imprisonment, MCL 750.349b;
and carrying a concealed weapon, MCL 750.227. Additionally, the prosecution agreed that it
would not add a charge of using a firearm in the commission of a felony (felony-firearm), MCL
750.227b, and it would recommend concurrent sentences for the two counts of conviction.


1
 People v Ashley, unpublished order of the Court of Appeals, entered June 6, 2017 (Docket No.
337424).


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        Before entering his plea, defendant was placed under oath, indicated that he understood
that he would be pleading guilty to armed robbery and first-degree home invasion, and stated that
he understood the maximum penalties for each offense. Defendant also acknowledged and
signed an advice-of-rights form and testified that he understood that he would be giving up those
rights by entering his guilty pleas. The prosecutor placed the plea agreement on the record, and
defense counsel agreed that it was accurately stated. Defendant agreed that this was the entire
plea as he understood it, that no one promised him anything other than what was placed on the
record, that no one threatened him in any way, and that it was his own choice to enter these
pleas. Defendant then stated that he was pleading guilty to both counts because he was guilty.

        The trial court stated that it was satisfied that a jury could find defendant guilty and
accepted defendant’s pleas to both counts. At defendant’s sentencing hearing, the trial court
received testimony that the parties had agreed to a reduced sentencing-guidelines range. The
trial court sentenced defendant within that reduced range as stated above.

         Thereafter, defendant filed a motion to withdraw his plea for resentencing. Defendant
claimed that “his plea [was] coerced and based upon insufficient evidence and that his attorney
was ineffective.” The prosecution and the trial court agreed with defendant’s argument that there
was an insufficient factual basis presented at the plea hearing to accept defendant’s guilty plea
for the home-invasion charge. The trial court stated, “[T]his court feels that the appropriate thing
to do would be to withdraw the plea to the home invasion. The prosecutor has said that they will
Nolle Pros this case thereby not subjecting the defendant to any further penalties or potentially
increased penalties.” Therefore, the trial court allowed defendant to withdraw his guilty plea on
the first-degree home invasion charge.

        The trial court then stated, “I see no reason whatsoever . . . to allow the plea to be
withdrawn to the armed robbery. There was a sufficient factual basis. There was a specific plea
that was followed. There were Guidelines that were recommended. There was a sentence that
was within those.” The trial court denied defendant’s motion to withdraw his plea and upheld
his sentence for the armed-robbery conviction. This appeal followed.

                                         II. ANALYSIS

        Defendant argues that the trial court erred when it only allowed defendant to withdraw
his plea to the home-invasion charge when the proper remedy would have been to allow
withdrawal of the entire plea. “When a motion to withdraw a guilty plea is made after
sentencing, the decision whether to grant it rests within the sound discretion of the trial court.
That decision will not be disturbed on appeal unless there is a clear abuse of discretion resulting
in a miscarriage of justice.” People v Effinger, 212 Mich App 67, 69; 536 NW2d 809 (1995).
“An abuse of discretion occurs when the decision results in an outcome falling outside the range
of principled outcomes.” People v Fonville, 291 Mich App 363, 376; 804 NW2d 878 (2011).

       A defendant does not have an absolute right to withdraw a plea once it has been accepted.
People v Gomer, 206 Mich App 55, 56; 520 NW2d 360 (1994). A defendant seeking to
withdraw his plea after sentencing must demonstrate that there was defect in the plea-taking
process. People v Brown, 492 Mich 684, 693; 822 NW2d 208 (2012). In the absence of


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procedural error in receiving the plea, a defendant must establish a fair and just reason for
withdrawal of the plea. People v Harris, 224 Mich App 130, 131; 568 NW2d 149 (1997).

        Defendant argues that this Court’s opinion in People v Blanton, 317 Mich App 107; 894
NW2d 613 (2016), entitles him to revoke his multi-count plea in its entirety when any one count
of that plea is defective. In Blanton, the defendant was offered a plea agreement that would
allow him to plead guilty “to charges of armed robbery, assault with intent to do great bodily
harm, and felony-firearm, in exchange for the prosecution’s” agreement to drop three additional
charges as well as a habitual-offender enhancement and to recommend a reduced sentencing-
guidelines range. Id. at 111. Defendant accepted the agreement and pleaded guilty to each
charge; however, the trial court failed to advise defendant of the consecutive sentence attached to
the felony-firearm conviction, thereby rendering defendant’s plea procedurally defective. Id. at
111-112, 114.

       Following sentencing, the defendant moved to withdraw his plea in its entirety, i.e., to all
charges, because of the trial court’s failure to advise defendant of the consecutive sentence
attached to the felony-firearm charge. Id. at 113. The prosecution agreed that this failure
rendered the plea-taking process procedurally defective and “conceded that the error entitled
defendant to withdraw his guilty plea to the felony-firearm charge.” Id. at 113-114. The
prosecution disputed, however, that the defendant was allowed to revoke his plea to the
remaining charges. Id. at 114. Rather, the prosecution argued that “because any failure to
inform defendant regarding the felony-firearm charge was ‘extrinsic’ to those other charges,
defendant was not entitled to withdraw his guilty plea to those other charges.” Id.

        The trial court agreed that there was a procedural defect regarding the felony-firearm
conviction and allowed defendant to withdraw his plea in its entirety. Id. at 114-115. The
prosecution then moved for reconsideration. Id. at 115. In the absence of any controlling
precedent, the trial court found persuasive the Washington Supreme Court’s analysis in State v
Turley, 149 Wash 2d 395; 69 P3d 338 (2003), in light of which the trial court reasoned that “plea
agreements are ‘package deals’ and indivisible.” Id. at 116. Therefore, the trial court denied the
prosecution’s motion. Id.

        On appeal, this Court agreed with the trial court that Turley was persuasive. Id. at 125.
In Turley, the defendant pleaded guilty via a multi-count plea agreement and a procedural defect
affected only one of the charges. Turley, 149 Wash 2d at 396. The Turley defendant argued that
the plea agreement was indivisible and that he should be allowed to withdraw his plea to all
charges. Id. at 397. The Turley trial court disagreed, and allowed the defendant to withdraw his
plea on only the charge affected by the procedural defect. Id. at 397-398. The Washington
Supreme Court reversed the trial court, noting that “[a] plea agreement is essentially a contract
made between a defendant and the State” and, therefore, contract principles—specifically the
intent of the parties—should be used to determine whether the plea agreement should be
separable or indivisible. Id. at 398, 400. The Washington Supreme Court found that several
pieces of evidence indicated that the parties intended that the plea agreement be indivisible: (1)
the defendant “negotiated and pleaded to two charges contemporaneously”; (2) “[o]ne document
contained the plea to and conditions for both charges”; and (3) the “trial court accepted his plea
to both charges at one hearing” and did not separately advise the defendant of the consequences
of each individual charge. Id. at 400. The Washington Supreme Court found no evidence of any

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intent that the plea agreement be separable and concluded that the plea agreement should
therefore be indivisible, meaning that the defendant should have been permitted to withdraw his
plea to all charges. Id. at 400-401.

        This Court noted that Michigan courts apply contractual analogies to a plea agreement
when doing so would not subvert the ends of justice. Blanton, 317 Mich App at 125. This Court
concluded, “Given the nature of the plea-bargaining process in Michigan, during which both
parties often tend to negotiate a ‘package deal,’ . . . adherence to Turley would not subvert the
ends of justice.” Id. (internal citation and quotation marks omitted). This Court then noted that a
single information contained all the charges against the defendant, that the defendant pleaded
contemporaneously to multiple charges, and that the trial court accepted defendant’s plea to all
charges at one hearing. Id. at 125-126. This Court concluded that the parties intended the
agreement to be indivisible and that the trial court did not abuse its discretion in allowing
defendant to withdraw his plea in its entirety. Id.

        Blanton involved the mirror image of the present case—in Blanton, this Court held it was
not an abuse of discretion for a trial court to grant the defendant’s motion to withdraw a plea,
while the present case presents the question of whether it was an abuse of discretion for a trial
court to deny a similar motion. But, whether Blanton is on all fours with the present case is
irrelevant given this Court’s recent decision in People v Pointer-Bey, ___ Mich App ___; ___
NW2d ___ (2017) (Docket No. 333234). In that case, this Court found a similar error in the
plea-taking process, where the defendant had not been advised of the maximum possible
sentence for one of his pleaded-to convictions. Id. at ___; slip op at 3. This Court held that the
error rendered the plea process defective, that defendant was entitled to withdraw his plea in its
entirety, and that the trial court’s denial of the motion was an abuse of discretion. Id.

        Applying Blanton and Pointer-Bey to the facts of this case, we conclude that the parties
intended that the plea agreement be indivisible. The charges were noticed on the same
information and defendant pleaded guilty to both charges in the same proceeding. Although
defendant was advised of the separate possible penalties each charge carried, defendant was
asked numerous times how he was pleading “on these two counts.” Each time, defendant
responded with a singular “guilty.” Similar questioning regarding the plea agreement referred to
the charges collectively. Defendant signed one advice-of-rights form, and the trial court entered
his pleas by signing one order. We find no evidence in the record that, at the time of adoption,
the parties intended that the plea agreement be separable; rather, the totality of the evidence
indicates that the parties made a singular, indivisible agreement.

        Thus, under these circumstances, defendant was entitled to revoke his plea in its entirety.
The trial court abused its discretion by denying defendant’s motion.

         Accordingly, we vacate the trial court’s order denying defendant’s motion to withdraw
his plea and remand this matter to the trial court for further proceedings consistent with this
opinion and MCR 6.310(C). Because we conclude that defendant was entitled to revoke his plea
in its entirety, we need not address defendant’s arguments that his counsel ineffectively advised




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defendant or coerced defendant into accepting the plea and that the trial court erred in scoring
defendant’s guidelines range. We do not retain jurisdiction.



                                                           /s/ Joel P. Hoekstra
                                                           /s/Brock A. Swartzle




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