In criminal sexual conduct cases defense attorneys sometimes advise a client to take a plea offer without giving the client accurate advice about taking the plea. Each client, no matter if they are advised by a public defender or retained counsel, should be aware of what he or she is pleading guilty to, especially in a case of criminal sexual conduct. The sentences that come with a conviction of criminal sexual conduct are severe in most circumstances, and include things such as electronic monitoring, or registering as a sex offender.
In Michigan, Court Rule 6.310(B)(1) governs plea withdrawal after acceptance but before sentencing and provides:
A plea may be withdrawn on the defendant’s motion or with the defendant’s consent, only in the interest of justice, and may not be withdrawn if withdrawal of the plea would substantially prejudice the prosecutor because of reliance on the plea. If the defendant’s motion is based on an error in the plea proceeding, the court must permit the defendant to withdraw the plea if it would be required by subrule (C).
Where a defendant establishes a fair and just reason for withdrawing a plea before sentencing, the burden shifts to the prosecutor to establish substantial prejudice would result from allowing the defendant to withdraw the plea. MCR 6.310(B)(1); See also People v Gomer, 206 Mich App 55, 57; 520 NW2d 360 (1994); People v Jackson, 203 Mich App 607, 611-612; 513 NW2d 206 (1994).
A fair and just reason for withdrawal of the plea may be established by showing, for example, the plea was the product of fraud, duress, or coercion; induced by inaccurate legal advice; or where a defendant either refuses or is unable to recount a factual basis for the plea or can establish the existence of a meritorious defense. Jackson, at 613. An unfulfilled promise of leniency or a misleading statement by defense counsel can also be the basis for setting aside the plea. People v Schirle, 105 Mich App 381, 385; 306 NW2d 520 (1981). The same is true where the defendant can show ineffective assistance of counsel combined with the existence of a meritorious defense. See People v Thew, 201 Mich App 78, 95-97; 506 NW2d 547 (1993). The issue is not whether the trial court believes the defendant’s asserted defense, but rather, “whether defendant has a valid defense to the charge … even if he might be guilty of other offenses.” Id. at 96.
A guilty plea may be “found to be involuntary or unknowing on the basis of ineffective assistance of counsel where the defense counsel has failed to explain to his client the nature of the charges or to discuss possible defenses to the charges to which he is pleading guilty.” Id. at 91 (relying on anno: Adequacy of Defense Counsel’s Representation of Criminal Client Regarding Guilty Pleas, 10 ALR4th 8, §§ 25-26, pp 130-151); see also People v Mayes (After Remand), 202 Mich App 181, 192; 508 NW2d 161 (1993). Defense counsel must explain to the defendant the range and consequences of available choices in sufficient detail to enable the defendant to make an intelligent and informed choice. Thew, at 92, 95. In Kercheval v United States, 274 US 220; 47 S Ct 582; 71 L Ed 1009 (1927), a unanimous United States Supreme Court observed that: "The court in exercise of its discretion will permit one accused [who has pleaded guilty] to substitute a plea of not guilty and have a trial if for any reason the granting of the privilege seems fair and just." Id. at 224 (citations omitted).
The Law Offices of Shannon M. Smith represents those charged with criminal sexual conduct. Our office provides diligent representation at every stage of a client's proceedings, especially when it comes to working out a plea agreement. We ensure that each of our clients is informed, in detail, about a plea and the potential sentence that comes along with it. Our office also handles appeals for cases of criminal sexual conduct where plea withdrawal is an issue. If you or a loved one has been charged or convicted of criminal sexual conduct, call our office to set up a free consultation.