                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    UNPUBLISHED
                                                                    July 25, 2017
               Plaintiff-Appellee,

v                                                                   No. 332903
                                                                    Grand Traverse Circuit Court
ALAIN FRASER KLINGBAIL,                                             LC No. 15-012263-fh

               Defendant-Appellant.


Before: SAWYER, P.J., and MURRAY and GLEICHER, JJ.

GLEICHER (dissenting).

       The majority dispenses with defendant’s challenge to the incorrect advice given by
defense counsel by positing that defendant withdrew his guilty plea for unrelated reasons.
Counsel’s unwise, erroneous, and ineffective advice was the guiding force behind defendant’s
decision. But for the constitutionally deficient advice of defendant’s trial counsel, defendant
would have been convicted by plea of a lesser charge and would have received a far more lenient
sentence. I respectfully dissent.

                                            I. FACTS

        A detailed recitation of the lower court record explains why defendant’s conviction must
be vacated. Around midnight on the night of October 13-14, 2015, defendant broke into the
home of 89-year-old Margaret Gregory. Defendant was so intoxicated that he could not
remember what happened inside the house. He had recently moved in with a friend in the
neighborhood and thought he was entering his new residence. Noises in the background of
Gregory’s recorded call to 911 reveal that defendant pounded on the front door for several
minutes. He also “yell[ed] and scream[ed].” The responding officer arrived quickly and
according to his police report, observed defendant “knocking on the door loudly.” Defendant
began “kicking at the door and then using his shoulder in [an] attempt to gain access into the
residence.” When the officer saw defendant push through the door, he ran to intercept him. The
officer entered the house seconds after defendant and saw defendant “standing over” Gregory
“getting ready to assault her” with “[h]is hands . . . near [Gregory’s] head.”

        The officer ordered defendant to get on the ground, but defendant did not comply.
Instead, defendant “turned around and looked at [the] officer . . . with a blank stare.” According
to the officer, defendant “then clenched his fists” and started walking toward him. The officer
deployed his Taser. Defendant fell to the ground but tried to stand back up, leading the officer to
                                                -1-
use his Taser a second time. Following defendant’s arrest, the officer questioned Gregory who
was “obvious[ly] . . . shaken up.”

        The prosecutor charged defendant with assaulting, resisting, or obstructing a police
officer, MCL 750.81(d)(1), and first-degree home invasion, MCL 750.110a(2).1 The prosecutor
also notified defendant that his sentence would be enhanced as a third-habitual offender. In
relation to the home invasion charge, the felony complaint explained that defendant “did break
and enter, or did enter without permission[,] a dwelling located at [xxx] E. State Street, with the
intent to commit an assault therein, and while entering, present in, or exiting the dwelling
Margaret Gregory[] was lawfully present therein. . . .” (Emphasis added.)

        On November 6, 2015 (23 days after the offense), defendant appeared in the district court
for his preliminary examination with appointed counsel, David Clark. Defendant waived the
examination and entered a nolo contendere plea to a reduced charge of third-degree home
invasion2 with the factual basis being supported by the police report. The court advised
defendant that this was “a five-year maximum felony.” The prosecutor agreed to drop the
habitual offender sentencing enhancement and dismiss the resisting arrest charge. At no time
during this hearing did the court or counsel advise defendant of the elements of first or third-
degree home invasion. Accordingly, there is no record indication that defendant understood at



1
    MCL 750.110a(2) provides:
         [1] A person who breaks and enters a dwelling with intent to commit a felony,
         larceny, or assault in the dwelling, [2] a person who enters a dwelling without
         permission with intent to commit a felony, larceny, or assault in the dwelling, or
         [3] a person who breaks and enters a dwelling or enters a dwelling without
         permission and, at any time while he or she is entering, present in, or exiting the
         dwelling, commits a felony, larceny, or assault is guilty of home invasion in the
         first degree if at any time while the person is entering, present in, or exiting the
         dwelling either of the following circumstances exists:

            (a) The person is armed with a dangerous weapon.

            (b) Another person is lawfully present in the dwelling. [Ordinals added.]
2
    MCL 750.110a(4) proscribes third-degree home invasion, in relevant part, as follows:
         A person is guilty of home invasion in the third degree if the person does either of
         the following:

             (a) [1] Breaks and enters a dwelling with intent to commit a misdemeanor in
         the dwelling, [2] enters a dwelling without permission with intent to commit a
         misdemeanor in the dwelling, or [3] breaks and enters a dwelling or enters a
         dwelling without permission and, at any time while he or she is entering, present
         in, or exiting the dwelling, commits a misdemeanor. [Ordinals added.]



                                                 -2-
that time that his conduct potentially satisfied the elements of an alternate theory of first-degree
home invasion, making this plea arrangement very generous.

         Four days later, defendant retained new counsel, John Ferguson. Defendant subsequently
testified that Ferguson visited him in jail while he was represented by Clark and informed him
that the charges were “BS,” that he had been overcharged, and that Ferguson could arrange a
misdemeanor plea. Ferguson has never refuted this testimony, and the trial court later found it to
have been accurate. After convincing defendant to fire Clark, Ferguson immediately filed a
motion to withdraw defendant’s plea. Ferguson described that defendant entered his plea “[a]fter
only a cursory probable cause conference” and without understanding that his nolo contendere
plea “would be seen the same as a plea of guilty.” Ferguson further contended in his motion that
the police report did not provide the necessary factual support for defendant’s home invasion
conviction “because the crime of home invasion is dependent upon an element of proof that the
defendant had some intent to commit a crime once inside.” Ferguson averred that defendant
only intended to lawfully enter a neighboring home in which he was staying. Ferguson described
defendant’s plea to the reduced felony charge as “a gross injustice” based on “the facts of the
case.”

       The circuit court allowed defendant to withdraw his plea, but first inquired:

              Q. He has pled no contest, a plea I typically don’t accept, to a 5-year
       felony. And, the facts as I’ve read them are, he was witnessed by a police officer
       kicking in a door and standing over an 89-year-old woman ready to assault her.
       So, what he would rather do on those facts is go to trial on the 20-year felony?

                  Mr. Ferguson. Your Honor, yes.

                  The Court. You done the math on that?

                  Mr. Ferguson. I have, your Honor.

                  We’ve explained that, we’ve discussed the risks he’s taking. The reality is
       this - -

The court interrupted defense counsel, asked the prosecutor if she was “ready to go to trial,” and
then declared the plea withdrawn. The court then advised defendant,

              The Court. There will be no plea agreements, there will be no plea
       negotiations. There will be a trial on a 20-year felony.

                  Be careful what you wish for.

                  We’re done.

                  Mr. Ferguson. Thank you, your Honor.

              The Court. Last chance, [defendant], is this what you want to do? You
       want to go to trial on these facts on a 20-year felony?

                                                  -3-
              Mr. Ferguson. May it please the Court - -

              The Court. Oh no, he gets to say yes or no.

              Mr. Ferguson. Fair enough, your Honor.

              The Court. Yes or no?

              Defendant[]. I did not intend to harm - -

              The Court. I don’t want to hear about that.

               I want to know whether you want a trial on a 20-year felony or you want
       to stand by a no contest plea to a 5-year? That’s all I want to know.

              Because you’re not going to get a second chance at this deal and you’ve
       had plenty of time to talk to the new attorney.

              Do you want this?

             You’re not stupid, you’ve got a 3.4 GPA, you’re a smart guy. Is this what
       you want to do?

               Because I will give you an opportunity to come in here in front of 12
       jurors, you’ve read the pre-sentence report, you’ve seen the police reports. You
       really want to go to trial on a 20-year felony? Last chance.

              Defendant[]. Yes, your Honor.

              The Court. All right, wish granted.

               Mr. Ferguson. I take it the Court will notify us of a pretrial conference to
       discuss this?

               The Court. There will be no pretrial conference, I’ll give you a trial
       notice. This case has been through, we’re done.

        The prosecution then issued an amended felony information changing the theory for the
first-degree home invasion charge. Rather than attempting to prove that defendant intended to
commit an assault once inside Gregory’s residence, the amended information advised that the
prosecutor would establish that defendant committed first-degree home invasion under the third
method provided in the statute: by breaking into Gregory’s home (without regard to intent) and
resisting arrest once inside.

        The matter then proceeded to trial. Gregory passed away before trial and therefore was
unable to testify. Defense counsel presented no evidence to establish that defendant was
intoxicated on the night in question or to explain defendant’s confusion caused by the similar
looking houses in the neighborhood. And the court denied defendant’s request for a jury


                                               -4-
instruction on the lesser offense of entry without permission. The jury convicted defendant as
charged. The court thereafter sentenced defendant to three to 20 years’ imprisonment.

                                II. POST-TRIAL PROCEEDINGS

         With the assistance of his original attorney, Clark, defendant subsequently sought a new
trial, arguing that Ferguson’s assistance was constitutionally deficient. Defendant alleged that
Ferguson improperly interpreted the home invasion laws when advising him to withdraw his plea
to third-degree home invasion. Defendant also accused Ferguson of incorrectly informing him
that the court would allow additional plea bargaining and then would not allow him to ask
questions at the plea withdrawal hearing.

        The circuit court agreed to conduct an evidentiary hearing pursuant to People v Ginther,
390 Mich 436; 212 NW2d 922 (1973). Defendant’s former girlfriend, Falon Babineau, testified
that she contacted Ferguson on defendant’s behalf. Ferguson “assured [Babineau] that he could
help, that he could get the plea dismissed, that the process would start over, that [defendant] was
over charged.” Ferguson elaborated that defendant “would have an evidentiary hearing” and
“the prosecutor would then realize their mistake in over charging him and that he would be
offered a new deal that would be a misdemeanor.” As a result of this conversation, Babineau
paid Ferguson his requested retainer. Before plea withdrawal, Babineau conducted her own legal
research, learned the elements of first-degree home invasion, and suspected that defendant had
actually committed that offense. She expressed her concerns to Ferguson who told her that the
law “was complicated and [she] didn’t understand it.” Ferguson also related his belief that
Gregory would be a good witness for the defense, because “she will say she did not feel as if
[defendant] was threatening her.”

        Babineau was present at the plea withdrawal hearing. She observed that defendant
wanted to ask questions, but “Ferguson hushed him.” After the hearing, Ferguson told Babineau
and defendant’s mother that the judge simply used “a scare tactic” by threatening defendant with
a trial on a 20-year felony. In the weeks that followed, Ferguson finally admitted that the
prosecutor would not consider a different plea deal. Ferguson revealed that his defense would be
that defendant did not resist arrest inside Gregory’s home and therefore did not commit a felony
therein. Specifically, Ferguson intended to argue that defendant “just stood there and got shot
with a taser.” Aware that Gregory’s health was declining, Ferguson also promised to secure a
statement from the witness. Ultimately, Ferguson declared that he would rely upon an interview
conducted by Clark’s assistant, during which Ferguson believed Gregory stated that defendant
“looked confused and not threatening, it should show he did not resist arrest.”3



3
  Clark’s assistant, Lindsay Geiger, testified on behalf of the defense at defendant’s trial. Geiger
recounted that Gregory expressed feeling fear that her door would be broken, but never
mentioned being afraid for her “bodily safety.” Gregory indicated that after defendant “was in
the house for a few seconds, she heard a pop and then he was on the ground.” However, Geiger
never specifically asked Gregory if she felt threatened by defendant or whether defendant
appeared confused.


                                                -5-
        Defendant testified that he had been prepared to plead nolo contendere to third-degree
home invasion, understood the benefit of the reduced sentence, and was aware that the
consequences were the same as pleading guilty. Defendant had also reviewed the presentence
investigation report and knew his recommended minimum sentence was only zero to 17 months
in county jail rather than prison. Defendant was also informed he qualified for boot camp. But
Ferguson reached out to defendant and, as quoted above, promised him a better result based on
Ferguson’s erroneous interpretation of MCL 750.110a(2). Ferguson assured defendant that “the
whole process was going to start over and that he could get . . . a better deal.” Defendant first
denied telling Ferguson that he needed to avoid a felony conviction because he wanted to open a
restaurant and secure a liquor license, but on cross-examination admitted he had made this
statement.

        After the plea was withdrawn, defendant “asked [Ferguson] why the process hadn’t
started over.” Ferguson informed defendant “that there were no more deals, that we were going
to go to trial, that this is what he wanted. That he wouldn’t have taken my case had he not
thought we could win in trial. He could get me an unlawful entry plea if it came down to that.”
Defendant was “adamant” that Ferguson secure Gregory’s testimony in a deposition, but
Ferguson claimed he was awaiting permission from the prosecutor to speak to her. As a result,
Gregory died before her testimony could be preserved.

        Defendant described that he had intended all along to defend himself by explaining that
he was highly intoxicated on the night in question. He had only recently moved into a home
across the street from Gregory. He only entered Gregory’s home because he believed he was in
the right house. Based on this description, Ferguson informed defendant that he never formed
the necessary intent for first-degree home invasion and could be convicted of, at the most,
unlawful entry. Only after the prosecutor dismissed the separate resisting arrest charge did
Ferguson advise defendant that “it doesn’t have to be an intent crime, that the resisting arrest
makes it home invasion.”

       The final witness at the Ginther hearing was attorney Ferguson. Defense counsel
highlighted Ferguson’s miscommunication of the offense elements to defendant as follows:

               Q. In your motion to withdraw [the plea], you indicated that you believe
       there was no intent. Your motion and brief says the police report is devoid of any
       fact that supports a conviction of home invasion because the crime of home
       invasion is dependent on the element that proved defendant had some intent to
       commit a crime once inside. Is that your belief on November 10 or 12?

              A. There were several elements for home invasion, one of which is you
       have to have intent to commit a crime in the home, I relied on that element as a
       way to try to create an argument on behalf of [defendant]. There are other
       elements that support home invasion, I didn’t want to bring those up.

Later in the questioning, the prosecutor queried:




                                                -6-
               Q. Mr. Ferguson did you explain to Falon or your client or both that he
       could be convicted of home invasion first degree regardless of what he intended
       outside of the home?

               A. Yeah. I don’t remember when we first had that sort of conversation,
       but I remember talking to him fairly early on that your theory of the case as the
       People was that once you were in the home you committed a felony of resisting
       and opposing. And, the resisting and opposing as I understood the police report
       was based on the report he was coming at him with a balled up fist and tazed him
       accordingly.

Even so, Ferguson held to his stance that defendant was overcharged:

              In my opinion he could have and should have been charged with breaking
       a dwelling and perhaps resisting and opposing separately, that would have
       exposed him to a five year instead of home invasion first degree, a 20 year, from
       the beginning. . . . [I]t was clear from my conversations with Ms. Gregory, she
       was not threatened by [defendant], she didn’t see [defendant] threaten the officer.
       For that reason I didn’t believe it was an appropriate charge to make against
       [defendant]. For that reason I think a plea to the felony was inappropriate . . . .

He further explained that the police report was insufficient to support a resisting arrest charge
because it did not appear that defendant was aware that the responding officer was a police
officer when he first turned around and had not resisted when the officer employed his Taser.

       Ferguson claimed that his strategy was partly fueled by defendant’s desire to avoid a
felony conviction for business reasons. Defendant had communicated to Ferguson that he
wanted to open a restaurant but would be unable to secure a liquor license with a felony
conviction. Ferguson admitted that he told defendant that he would be able to explore “new plea
agreements” but denied representing that the criminal proceedings would start from scratch.

        Despite the court’s admonition that no further plea negotiations would be permitted,
Ferguson contacted the prosecutor’s office and offered that defendant would plead to a
misdemeanor charge. The prosecutor’s office declined. After Gregory died, defendant asked
Ferguson if they could reinstate the third-degree home invasion charge, but Ferguson told him
the circuit court would not agree to this. Specifically, Ferguson testified, “Because I practiced
enough with Judge Rodgers, once he said there is no more conference, he’s not going to take any
plea except the charge as charged.” And Ferguson insisted that he tried to speak to his client
before the plea withdrawal was finalized, but the court did not allow it.

        Ferguson asserted that he personally spoke to Gregory in December. Gregory related that
she did not see defendant threaten the police officer and did not feel threatened herself. In the
911 tape, Gregory did not scream for help, merely asking defendant, “who are you, what do you
want, what are you doing here.” Accordingly, Ferguson thought defendant would fare well at
trial. Ferguson contended that he had actually attempted to depose Gregory before trial, but her
rapidly declining health prevented it.



                                               -7-
       Ultimately, the trial court denied defendant’s motion for a new trial. The court noted that
defendant had been “provided with highly experienced and competent Court-appointed counsel,”
who was able to obtain a plea agreement for a lesser charge, with a much shorter penalty, and he
“did not have to admit his behavior under oath.”

       The Defendant then decided that he could get an even better deal by retaining a
       private attorney. This attorney, John Ferguson, told the Defendant he had been
       overcharged, that the Prosecutor’s Office needed a reality check and that he
       believed he could negotiate a plea to a misdemeanor. The Defendant chose to
       discharge his Court-appointed counsel and retain Mr. Ferguson.

         At the withdrawal hearing, the court “cautioned Defendant in the strongest possible terms
that this was not a wise decision.” Moreover,

               There is no question that the decision to withdraw the plea was ill advised.
       The undisputed facts were that the intoxicated Defendant had forcibly entered the
       home of an elderly woman late at night. The admitted presence of the woman in
       her own home together with the forcible entry would not support a charge on a
       lesser offense. Further, it has never been this Court’s practice to routinely accept
       no-contest pleas and enable alcoholics or binge-drinking felons to obtain pleas
       without admitting responsibility for their behavior. It was made clear to the
       Defendant at the time of his motion that if he withdrew his plea there would be no
       further negotiations and we would proceed directly to trial.

       The court concluded:

                 The focus of Defendant’s motion centers on . . . whether defense counsel
       made a serious mistake during a court proceeding. Here, the alleged mistake is
       counseling the Defendant to withdraw his plea in the hopes of negotiating a
       misdemeanor plea which would allow him to pursue his goal of opening a
       restaurant and establishing a bar. As previously indicated the Defendant is not
       incompetent but has at least average intelligence. He had read the police report
       and was well aware of the People’s opinion that he had committed resisting and
       opposing a police officer while inside the home. He knew he could not testify due
       to a claimed lack of memory. His Court-appointed lawyer had obtained for him
       an extraordinarily favorable plea agreement on the facts. While the Defendant
       hoped that he might obtain a plea to a misdemeanor, the People were neither
       under an obligation to offer one nor had they ever indicated any inclination to do
       so. . . .

                Having made the counseled decision to withdraw his plea and to proceed
       to trial and now having been convicted, the Defendant wishes to wash out that
       conviction and start the process over. What the Defendant ignores is the People
       having obtained a conviction, have no obligation to offer him a plea agreement
       whatsoever let alone to reinstate that which the Defendant rejected many months
       ago.


                                               -8-
               The Defendant has been calculating in his behavior throughout these
       proceedings. . . . When the siren call of Mr. Ferguson came again, he chose to
       reject the certainty of a 5-year plea and 0- to 17-months sentencing guidelines for
       the uncertainty of a trial result and any further plea negotiations. His retained
       attorney discussed with him the various risks associated with rejecting the plea
       but admitted that he supported the Defendant’s decision to proceed to trial. Given
       that the Defendant’s state of intoxication and intent were not defenses, this was a
       highly risky choice but one made after a plea had already been entered and with
       substantial time to think and reflect upon the choice.

               . . . Here, the Defendant has failed to establish the factual predicate for his
       claim of ineffective assistance of counsel. You cannot simply roll the dice,
       proceed to trial, receive an adverse verdict and then suggest that it is your
       lawyer’s fault and you should be allowed to start anew. The Defendant was
       properly charged with [first-degree home invasion] and properly convicted of
       doing so. The withdrawal of the plea and gamble on the hopes of a misdemeanor
       conviction proved to be a losing bet but not one which this Court choses to enable
       by laying culpable blame on his attorney. Mr. Ferguson’s support of the
       Defendant’s bad decision was foolish. But, as is so often the case, the Defendant
       is the author of his own misfortune.

           III. DEFENSE COUNSEL WAS CONSTITUTIONALLY INEFFECTIVE

        I cannot agree with my colleagues’ determination that defense counsel’s performance
was constitutionally adequate. Counsel advised plea withdrawal based on ignorance of the law,
essentially encouraging defendant to play Russian Roulette with a gun the prosecution had fully
loaded. “As at trial, a defendant is entitled to the effective assistance of counsel in the plea-
bargaining process.” People v Douglas, 496 Mich 557, 591-592; 852 NW2d 587 (2014). “If a
plea bargain has been offered, a defendant has the right to effective assistance of counsel in
considering whether to accept it,” Lafler v Cooper, 566 US 156, 168; 132 S Ct 1376; 182 L Ed
2d 398 (2012), and consequently, whether to withdraw a plea once it enters. See Commonwealth
v Bradley, 552 Pa 492; 715 A2d 1121 (1998). “To establish deficient performance, a petitioner
must demonstrate that counsel’s representation “fell below an objective standard of
reasonableness,’ ” measured in terms of “ ‘prevailing professional norms.’ ” Wiggins v Smith,
539 US 510, 521; 123 S Ct 2527; 156 L Ed 2d 471 (2003), quoting Strickland v Washington, 466
US 668, 688; 104 S Ct 2052; 80 L Ed 2d 674 (1984).

        The majority notes that defendant’s decision to withdraw his plea was “multi-faceted.” I
acknowledge that fact. However, it was incumbent upon attorney Ferguson to accurately advise
defendant before he withdrew his plea that first-degree home invasion can be established by
more than one method, that the conduct alleged in the police report could establish defendant’s
guilt on alternate grounds, and that the State had the authority to amend the felony information to
pursue prosecution on an alternate ground. There is no evidence that Ferguson communicated
this crucial information before defendant forfeited his highly advantageous plea deal. Had
Ferguson done so, defendant would be in a very different position today.



                                                -9-
        Prevailing professional norms, at a minimum, require an attorney to read and understand
the statutes under which his or her criminal defendant client has been charged. This is axiomatic
under the Michigan Rules of Professional Conduct. The commentary to MRPC 1.1, the rule
requiring competency in representation, provides: “Competent handling of a particular matter
includes inquiry into and analysis of the factual and legal elements of the problem, and use of
methods and procedures meeting the standards of competent practitioners. It also includes
adequate preparation.” (Emphasis added.) On June 1, 2016, the Supreme Court conditionally
approved minimum standards for appointed defense counsel. The first standard defines the level
of competence necessary to be constitutionally effective. It provides:

         Counsel shall have reasonable knowledge of substantive Michigan and federal
         law, constitutional law, criminal law, criminal procedure, rules of evidence,
         ethical rules and local practices. Counsel has a continuing obligation to have
         reasonable knowledge of the changes and developments in the law. “Reasonable
         knowledge” as used in this standard means knowledge of which a lawyer
         competent under MRPC 1.1 would be aware. [Admin Order 2016-2, 499 Mich
         xcvii, ci (2016) (emphasis added).]

This standard was subsequently approved by Department of Licensing and Regulatory Affairs.
See <http://michiganidc.gov/standards/> (accessed July 12, 2017).

       General agency law similarly demands an attorney adequately prepare by acquainting
himself or herself with relevant law.

         [An] agent . . . should know what a person of ordinary experience and intelligence
         would know, and in addition, what he would know if, having the knowledge and
         intelligence which he has or purports to have, he were to use due care in the
         performance of his duties to the other. [1 Restatement, Agency 2d, § 10, p 51.]

If a person is “a professional agent,” “he represents that he has the knowledge which is standard
for the profession in which he is employed. . . .” Id., cmt c.

        Parallels can be drawn to legal malpractice standards as well. In Simko v Blake, 448
Mich 648, 650-651; 532 NW2d 842 (1995), a criminal defendant who was jury convicted but
vindicated on appeal filed a legal malpractice action against his trial counsel. The Court held
“that attorneys must only act as would an attorney of ordinary learning, judgment, or skill under
the same or similar circumstances.” Id. at 650. In doing so, counsel must “use reasonable skill,
care, discretion and judgement. . . .” Id. at 656 (quotation marks and citations omitted). “An
attorney is never bound to exercise extraordinary diligence, or act beyond the knowledge, skill,
and ability ordinarily possessed by members of the legal profession.” Id. Stated differently, an
attorney “must act with the skill, learning, and ability of the ‘average practitioner of law.’ ” Id.
at 657.

         These principles have been described similarly and simply by the California Supreme
Court:

         [A]n attorney does not ordinarily guarantee the soundness of his opinions and,
         accordingly, is not liable for every mistake he may make in his practice. He is
                                               -10-
       expected, however, to possess knowledge of those plain and elementary principles
       of law which are commonly known by well informed attorneys, and to discover
       those additional rules of law which, although not commonly known, may readily
       be found by standard research techniques. If the law on a particular subject is
       doubtful or debatable, an attorney will not be held responsible for failing to
       anticipate the manner in which the uncertainty will be resolved. But even with
       respect to an unsettled area of the law, we believe an attorney assumes an
       obligation to his client to undertake reasonable research in an effort to ascertain
       relevant legal principles and to make an informed decision as to a course of
       conduct based upon an intelligent assessment of the problem. . . . [Smith v Lewis,
       13 Cal 3d 349, 358-359; 118 Cal Rptr 621; 530 P2d 589 (1975), overruled in part
       on other grounds In re Marriage of Brown, 15 Cal 3d 838; 126 Cal Rptr 633; 544
       P2d 561 (1976) (citations omitted, emphasis added).]

        Any attorney accepting a retainer or appointment in a criminal matter must prepare for
the task by doing at least some homework. A major preparatory step is learning the nature of the
charges against the client, both factually and legally. Employing reasonable skill means gaining
basic legal knowledge of the case. An essential building block of that knowledge is the statute
under which the criminal defendant is charged. A reasonable attorney of average skill would
read that statute.

         As noted, MCL 750.110a(2) provides multiple methods by which a person may commit
first-degree home invasion: by breaking and entering a dwelling or entering without permission
“with intent to commit a felony, larceny or assault” inside or by breaking and entering or
entering without permission and actually committing “a felony, larceny, or assault.” The
prosecution initially charged defendant of breaking and entering with intent to commit a crime
within. The prosecutor also charged defendant with having resisted or obstructing a police
officer. Ferguson’s strategy of attacking the evidentiary support for the home invasion theory
initially pled was sound. But the factual allegations in the information plainly supported a
charge on the alternate ground: that defendant actually committed an offense inside Gregory’s
home. An attorney of ordinary skill would understand that the prosecution could and likely
would amend the felony information after defendant withdrew his plea. MCR 6.112(H) gives the
trial court discretion to “permit the prosecutor to amend the information . . . unless the proposed
amendment would unfairly surprise or prejudice the defendant.” As the factual allegations
remained the same and could have supported a charge on the amended theory all along,
defendant would have no ground to assert unfair surprise or prejudice and avoid amendment.

       Prevailing professional norms required Ferguson to advise defendant of the potential
dangers of withdrawing his plea. And yet Ferguson failed to do so in a timely fashion.4



4
  An attorney acting within prevailing professional norms may advise a client who proclaims his
innocence to proceed to trial “no matter how ‘good’ [a plea] deal may appear.” Burt v Titlow,
___ US ___; 134 S Ct 10, 14; 187 L Ed 2d 348 (2013) (quotation marks and citation omitted).
The current defendant did not claim innocence, merely intoxication. And a quick read of the


                                               -11-
Contrary to my colleagues, I cannot ignore this gross legal error by calling it “strategy.” This
was pure ignorance, not a planned or thoughtful tactic.

        Ferguson later essentially conceded that he had performed ineffectively by encouraging
his client to withdraw his plea and attempting continued plea negotiations despite full awareness
that the circuit court would not permit a new plea. At the plea withdrawal hearing, the court
advised defendant, “There will be no plea agreements, there will be no plea negotiations.”
Ferguson admitted at the Ginther hearing, “Because I practiced enough with Judge Rodgers,
once he said there is no more conference, he’s not going to take any plea except the charge as
charged.” And yet Ferguson did not ask for time to confer with his client at the plea withdrawal
hearing. The court cut off Ferguson’s arguments but never communicated that it would deny a
recess for Ferguson to advise his client further. Rather, Ferguson allowed defendant to go
forward and withdraw his plea, knowing that defendant did not understand that the prosecution
could change its theory of the offense and that the prosecutor and the court would not entertain
further negotiations. Obstinately sticking to his prehearing strategy was not in his client’s
interests, a fact that Ferguson ignored to his client’s peril. Ferguson’s ineffectiveness at this
stage is particularly glaring in light of Judge Rodger’s invitation that Ferguson reconsider his
plea-withdrawal strategy. A competent attorney would have done just that.

        In Lafler, 566 US 156, the defendant was similarly provided poor advice. The defendant
was charged with assault with intent to murder and possession of a firearm during the
commission of a felony, and misdemeanor possession of marijuana, and was notified that his
sentence would be enhanced as a habitual offender fourth. Id. at 161. The prosecution twice
offered to dismiss two of the charges and to recommend a sentence of 51 to 85 months for the
other two. Id. The defendant admitted his guilt and expressed a willingness to accept the offer.
He later rejected it, however, on the advice of his counsel. Counsel had erroneously advised that
the prosecution could not prove defendant’s intent to murder because the victim had been shot
below the waist. Id. The defendant was convicted on all counts and was sentenced to 185 to 360
months’ imprisonment. Id. The prosecution was honest enough to admit that the defendant was
deprived of his constitutional right to the effective assistance of counsel where defense counsel
provided clearly erroneous advice. Id. at 162-163. The factual scenario here is remarkably
similar, but the prosecution has declined to acknowledge the plain truth that Ferguson gave his
client unreasonable advice based on the facts and law.

                    IV. COUNSEL’S DEFICIENCY WAS PREJUDICIAL

        Defendant was clearly prejudiced by counsel’s deficiencies. To warrant relief, a
defendant complaining of ineffective assistance in the plea-taking process must also demonstrate
that “the outcome of the plea process would have been different with competent advice.” Lafler,
566 US at 163. When a defendant rejects a plea deal and proceeds to trial,

       a defendant must show that but for the ineffective advice of counsel there is a
       reasonable probability that the plea offer would have been presented to the court

relevant statute would have informed counsel that defendant’s alleged inability to form intent did
not negate the elements of the charged offense.


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       (i.e., that the defendant would have accepted the plea and the prosecution would
       not have withdrawn it in light of intervening circumstances), that the court would
       have accepted its terms, and that the conviction or sentence, or both, under the
       offer’s terms would have been less severe than under the judgment and sentence
       that in fact were imposed. [Id. at 164.]

All of these conditions are met. The prosecutor offered a favorable plea deal, defendant and the
district court accepted it, and defendant’s sentence would have been lighter had he been
convicted of third-degree home invasion rather than withdrawing his plea and being convicted
after trial of first-degree home invasion.

       Ferguson’s errors were indisputably prejudicial. Despite that the facts supported a first-
degree home invasion charge, attorney Clark negotiated a deal for third-degree home invasion.
The lesser charge carries only a five-year, as opposed to 20-year, maximum sentence.
Defendant’s preliminary offense and prior record variable scores were favorable, coming with a
minimum sentencing range of 0 to 17 months. Defendant likely would have served time in
county jail, rather than state prison, and was even eligible for boot camp. These benefits were
not available with his first-degree home invasion conviction. Indeed, defendant’s minimum
sentence after trial was three years. See id. at 168 (“[P]rejudice can be shown if loss of the plea
opportunity led to a trial resulting in a conviction on more serious charges or the imposition of a
more severe sentence.”).

     V. JUDICIAL WARNINGS DO NOT REMEDY THE CONSTITUTIONAL ERROR

       Further, the majority’s focus on the trial court’s warning is misplaced. While I am
sympathetic to Judge Rodgers’ frustration with defendant for failing to follow his warning that
plea withdrawal was a bad idea, judicial warnings do not substitute for the effective assistance of
counsel. Contrary to the majority’s analysis, the Supreme Court stressed in Padilla v Kentucky,
559 US 356, 371; 130 S Ct 1473; 176 L Ed 2d 284 (2010), another case involving inaccurate
advice provided during the guilty plea negotiation process, that “[i]t is quintessentially the duty
of counsel to provide her client” with appropriate advice regarding critical legal issues.

                [T]he judicial plea colloquy is no remedy for counsel’s deficient
       performance in fulfilling these obligations. The colloquy merely “assist[s] the
       district judge in making the constitutionally required determination that a
       defendant’s guilty plea is truly voluntary.” McCarthy v. United States, 394 US
       459, 465; 89 S Ct 1166; 22 L Ed 2d 418 (1969). Moreover, because a judge
       “cannot investigate the facts[ ] . . . or participate in those necessary conferences
       between counsel and accused which sometimes partake of the inviolable character
       of the confessional,” a judge cannot “discharge the obligations of counsel for the
       accused.” Powell v Alabama, 287 U S 45, 61; 53 S Ct 55; 77 L Ed 158 (1932).
       [Marroquin v United States, 480 Fed Appx 294, 299 (CA 5, 2012) (second and
       third alterations in original).]

        More recently, in Lee v United States, 582 US ___; ___ S Ct ___; ___ L Ed 2d ___
(Docket No. 16-327, decided June 23, 2017), the Supreme Court re-emphasized this point. In
Lee, slip op at 2-3, the criminal defendant repeatedly expressed concern about deportation to the

                                               -13-
country he had left as a child and where he had no ties or connections. His attorney expressly
advised him “that he would not be deported as a result of pleading guilty” to a significantly
reduced charge with a much lighter sentence, as the prosecution had not raised deportation as a
possible penalty in the plea agreement. Id. at 2. Guided by counsel’s erroneous advice, the
defendant responded to the trial court’s inquiry during the plea colloquy that he did not
understand that deportation was a potential result. Id. at 11. The court allowed the defendant to
confer with his attorney, who assured the defendant that this “was a ‘standard warning.’ ” Id.
The Supreme Court noted, “There has been no suggestion her that the sentencing judge’s
statements at the plea colloquy cured any prejudice from the erroneous advice of . . . counsel.”
Id. at 11 n 4. Indeed, had such a suggestion been made, the Court would have quickly rejected it
based on Padilla. See also United States v Batamula, 788 F3d 166, 173 (CA 5, 2015) (“[T]he
Supreme Court has long contrasted the unique and critical obligations of defense counsel during
the plea bargaining process with the far more limited role of a district court to ensure a
minimally valid guilty plea, further supporting our conclusion that the judicial warning of
‘likely’ deportation does not prevent prejudice caused by counsel’s deficient performance.”).

        Judge Rodgers was aware of the facts of defendant’s case contained in the police report
and that defendant had been offered (and accepted) a plea deal to a lesser charge. Judge Rodgers
was not aware of the information and advice that Ferguson had relayed, however. During the
plea-withdrawal colloquy, no one advised Judge Rodgers or defendant of Ferguson’s legally
erroneous conclusion that defendant could not be convicted of first-degree home invasion.
While Judge Rodgers’ admonishment to “be careful what you wish for” factors into my analysis,
it does not excuse Ferguson’s ineffective assistance or diminish the prejudice caused by the plea
withdrawal.

                                  VI. APPROPRIATE RELIEF

        Inexplicably, defendant has never sought the proper relief for Ferguson’s constitutionally
deficient performance. Attorney Clark sought a new trial in the circuit court rather than the
appropriate remedy: a reoffer of the original plea. On appeal, defendant seeks the reversal of his
conviction and release from prison. However, the proper remedy under these circumstances is
“to require the prosecution to reoffer the plea proposal.” Lafler, 566 US at 171. Pursuant to
MCR 7.216(A)(7), this Court may “enter any judgment or order or grant further or different
relief as the case may require.” Having found counsel constitutionally ineffective, Lafler
instructs that the sole remedy is to require the prosecution to reoffer the plea proposal. “Once
this has occurred, the judge can then exercise discretion in deciding whether to vacate the
conviction from trial and accept the plea or leave the conviction undisturbed.” Lafler, 566 US at
171. Lafler provides further guidance regarding the proceedings on remand, as follows:

               In implementing a remedy in both of these situations, the trial court must
       weigh various factors; and the boundaries of proper discretion need not be defined
       here. Principles elaborated over time in decisions of state and federal courts, and
       in statutes and rules, will serve to give more complete guidance as to the factors
       that should bear upon the exercise of the judge’s discretion. At this point,
       however, it suffices to note two considerations that are of relevance.



                                              -14-
               First, a court may take account of a defendant’s earlier expressed
       willingness, or unwillingness, to accept responsibility for his or her actions.
       Second, it is not necessary here to decide as a constitutional rule that a judge is
       required to prescind (that is to say disregard) any information concerning the
       crime that was discovered after the plea offer was made. The time continuum
       makes it difficult to restore the defendant and the prosecution to the precise
       positions they occupied prior to the rejection of the plea offer, but 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. at 171-172.]

       Informed by Lafler, I would remand to the district court judge who originally accepted
defendant’s guilty plea for further proceedings in accordance with Lafler’s guidelines.




                                                           /s/ Elizabeth L. Gleicher




                                              -15-
