PEOPLE OF MI V AFSHIN JADIDNOURI
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
October 28, 2010
Plaintiff-Appellee,
v
No. 293560
Washtenaw Circuit Court
LC No. 09-000046-AR
AFSHIN JADIDNOURI,
Defendant-Appellant.
Before: MURPHY, C.J., and BECKERING and M.J. KELLY, JJ.
PER CURIAM.
Defendant appeals by leave granted the circuit court’s order denying defendant’s
application for leave to appeal the district court’s order denying defendant’s motion to withdraw
his guilty plea to assault, MCL 750.81. We affirm. This appeal has been decided without oral
argument pursuant to MCR 7.214(E).
Defendant was charged with assault and disturbing the peace arising out of an incident in
which he apparently became angry with a store manager concerning a phone purchase and,
among other actions, slammed his palm pilot on the counter. On the day trial was set to begin,
defendant was offered a plea bargain in which he was to plead guilty to the assault charge in
return for dismissal of the disturbing the peace charge. The prosecutor also added that, for
purposes of sentencing, the matter would be referred to a probation officer who “will likely
recommend the deferred program, whereby, the defendant will be placed . . . [on] probation[,]
[a]nd after a successful probationary term, . . . the matter will be taken off the record[.]” The
prosecutor later explained that a deferred sentence meant that, if defendant successfully
completed his term of probation, the plea conviction would be “set aside,” “dismissed,” or
“expunged.” 1 The prosecutor clearly articulated that he himself was not guaranteeing a deferred
1
It was never made entirely clear what specific statutory mechanism was to be employed to clear
defendant’s record on successful completion of terms set by the court had the court imposed a
deferred sentence. However, it appears that MCL 771.1(2) was being invoked, which provides
that, “[i]n an action in which the court may place the defendant on probation, the court may
delay sentencing the defendant for not more than 1 year to give the defendant an opportunity to
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sentence; it would be up to the probation department to recommend such a sentence, a
supervising prosecutor would then have to approve it, and finally the court would have the
discretion to impose the deferred sentence. But the prosecutor also added that “there’s a decent
chance you’ll have that happen.” The district court emphasized that there was no guarantee that
defendant would receive a deferred sentence. In the discussion, and based on statements made
by defendant on the record, it is quite evident that it was important to defendant that there would
be at least a chance that “[t]here’s no record of [the conviction] left behind[.]” But defendant
acknowledged that there was no guarantee that a deferred sentence would be imposed, and he
acknowledged that the plea agreement was not contingent on the court imposing a deferred
sentence.
The district court found, after taking testimony from defendant, that there existed a
sufficient factual basis for the plea. We shall discuss the factual basis for the plea in more detail
below in our analysis, as defendant raises an appellate argument challenging the court’s finding
on the matter.
Subsequently, the probation department did not recommend a deferred sentence because
it was discovered that defendant had entered a plea to resisting and obstructing an officer in
2001. As suggested by the record and as indicated in the prosecutor’s appellate brief, defendant
was not eligible and did not qualify for a deferred sentence recommendation given the prior pleabased conviction. Apparently, the local deferred sentencing program does not allow for a
deferred sentence recommendation relative to a defendant who either had a past conviction or
had previously received the benefit of a deferred sentence. Defendant moved to withdraw his
plea on various grounds prior to sentencing. Defendant, however, was not permitted to withdraw
his plea, either by the district court or the circuit court. He was sentenced to a fine of $750, five
consecutive Saturdays in a jail work program, and ordered to complete an anger management
program. Defendant was also given a suspended 93-day jail sentence, along with probation for
12 months.
On appeal, defendant argues that the trial court erred when it refused to allow him to
withdraw his plea. He contends that he received confusing and misleading information relative
to the plea agreement, and he claims that counsel pressured him into taking the plea. Defendant
further argues that he should be allowed to withdraw his plea due to the lack of a factual basis for
the plea in regard to the element of intent.
A trial court’s denial of a defendant’s motion to withdraw a guilty plea is generally
reviewed for an abuse of discretion. People v Harris, 224 Mich App 130, 131; 568 NW2d 149
(1997). An abuse of discretion occurs when the trial court’s decision falls outside a range of
prove to the court his or her eligibility for probation or other leniency compatible with the ends
of justice and the defendant’s rehabilitation[.]” (Emphasis added.) We also note that, while the
prosecutor spoke about defendant having to successfully complete probation for purposes of
deferred sentencing, a deferred sentence is not the equivalent of being placed on probation but
simply means that no sentence is initially imposed even though the court may impose conditions.
People v Hacker, 127 Mich App 796, 799; 339 NW2d 645 (1983). “The imposition of those
conditions is not construed as tantamount to placing the defendant on probation.” Id.
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principled outcomes. See People v Babcock, 469 Mich 247, 269; 666 NW2d 231 (2003). A
claim of ineffective assistance of counsel is a mixed question of law and fact. People v LeBlanc,
465 Mich 575, 579; 640 NW2d 246 (2002). We review a trial court’s findings of fact, if any, for
clear error, and review the ultimate constitutional issue arising from an ineffective assistance of
counsel claim de novo. Id. However, because no Ginther2 hearing was held, our review of
defendant's claim is limited to mistakes apparent on the record. People v Jordan, 275 Mich App
659, 667; 739 NW2d 706 (2007).
After a thorough review of the record, we find that defendant cannot show that the district
court abused its discretion when it refused to allow him to withdraw his guilty plea.
“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). After acceptance of a plea but prior to
sentencing, “a plea may be withdrawn on the defendant’s motion . . . 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.” MCR 6.310(B)(1) (emphasis added). When
invoking the interest-of-justice provision in MCR 6.310(B)(1), a defendant has the burden to
establish a fair and just reason to withdraw a plea. People v Patmore, 264 Mich App 139, 149;
693 NW2d 385 (2004). This Court has invalidated pleas where the underlying bargain is
illusory. People v Graves, 207 Mich App 217, 218; 523 NW2d 876 (1994); People v Gonzalez,
197 Mich App 385, 391; 496 NW2d 312 (1992). Once a guilty plea or a plea of nolo contendere
has been accepted by the trial court, the defendant has no absolute right to withdraw it. People v
Eloby (After Remand), 215 Mich App 472, 474-475; 547 NW2d 48 (1996); People v Gomer, 206
Mich App 55, 56; 520 NW2d 360 (1994).
To the extent that defendant’s claim rests on an assertion that his plea was due to
ineffective assistance of counsel, the proper focus is on whether the plea was made voluntarily
and understandingly. In re Oakland Co Prosecutor, 191 Mich App 113, 120; 477 NW2d 455
(1991). “Whether a plea is unintelligently made depends on whether counsel’s advice was
within the range of competence demanded of attorneys in criminal cases, not on whether
counsel’s advice was right or wrong.” People v Haynes, 221 Mich App 551, 558-559; 562
NW2d 241 (1997), citing Oakland Co Prosecutor, 191 Mich at 122. In addition, “requests to
withdraw pleas are generally regarded as frivolous where the circumstances indicate that the
defendant’s true motivation for moving to withdraw is a concern regarding sentencing.” Haynes,
221 Mich App at 559, citing People v Holmes, 181 Mich App 488, 492; 449 NW2d 917 (1989).
Therefore, counsel’s incorrect prediction concerning a defendant’s sentence is generally regarded
as insufficient to support a claim of ineffective assistance of counsel, or to establish good cause
for withdrawal of a plea. Haynes, 221 Mich App at 559.
Defendant first argues that the trial court should have allowed him to withdraw his plea
because the court failed to establish a factual basis for the plea. Defendant is mistaken. When
determining whether the trial court has established a factual basis for the plea, we review the
2
People v Ginther, 390 Mich 436, 443; 212 NW2d 922 (1973).
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record to determine “whether the trier of fact could properly convict on the facts as stated by the
defendant.” People v White, 411 Mich 366, 381-382; 308 NW2d 128 (1981), quoting Guilty
Plea Cases, 395 Mich 96, 128-132; 235 NW2d 132 (1975), and People v Haack, 396 Mich 367,
376-377; 240 NW2d 704 (1976). “A simple assault is either an attempt to commit a battery or an
unlawful act that places another in reasonable apprehension of receiving an immediate battery.”
People v Terry, 217 Mich App 660, 662; 553 NW2d 23 (1996). A simple criminal assault
requires proof of “an intent to injure or an intent to put the victim in reasonable fear or
apprehension of an immediate battery.” People v Johnson, 407 Mich 196, 210; 284 NW2d 718
(1979). Defendant contends that the factual basis was not established because the trial court did
not specifically ask defendant whether he had the intent to create in the mind of the victim the
fear of a battery.
In People v McKnight, 102 Mich App 581, 584-585; 302 NW2d 241 (1980), this Court
faced a similar argument and held:
Lastly, defendant contends that there was insufficient factual basis to
support a finding that defendant had the requisite wilful and malicious intent to
kill the dog. However, a factual basis for acceptance of a plea exists if an
inculpatory inference can reasonably be drawn by a jury from the facts admitted
by defendant even if an exculpatory inference could also be drawn and defendant
asserts the latter is the correct inference. A jury could properly infer wilful and
malicious intent to kill, even where defendant disclaims such intent, from
evidence that he intentionally set in motion a force likely to cause death or
grievous bodily harm here kicking the dog. [Citations omitted.]
In this case, defendant told the trial court that he argued with the manager of the phone
store, that he raised his voice, and that he hit the table with his palm pilot. He also conceded that
given his actions, the manager reasonably could have feared that defendant might hit her, i.e.,
commit a battery. A reasonable inference of these admissions by defendant, and his actions in
the store, was that he intended that the clerk actually fear an imminent battery. Thus, we find
that the trial court did not abuse its discretion in denying defendant’s motion to withdraw his plea
on the ground that the court did not establish an adequate factual basis for the plea.
Defendant next argues that the trial court erred in denying his motion to withdraw his
guilty plea, where there was confusion regarding the distinction between simple assault and a
battery, regarding defendant’s initial attempt to plead no contest, and confusion regarding the
deferred sentence as discussed in the plea negotiations and placed on the record. Defendant
argues that this confusion resulted in a plea agreement that was not voluntary, intelligent, and
understanding; rather, the agreement was illusory and the product of confusion. Defendant also
argues that his attorney pressured him into accepting the plea offer.
With respect to the distinction between simple assault and a battery, defendant showed
some concern about any plea that would indicate that he actually struck the victim. However, it
was explained to him that a plea to simple assault did not mean that he was admitting that he
struck the victim. And defendant then felt comfortable in proceeding with the plea.
Accordingly, any confusion on the matter was addressed, and addressed properly legally
speaking, to defendant’s satisfaction. Reversal on this ground is unwarranted.
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With respect to the initial attempt to plead no contest, the court indicated that it would not
accept a no contest plea where a deferred sentence was a possibility. The court allowed
defendant to confer with counsel, and they stepped outside for 15 minutes to discuss the matter.
Defendant returned to the courtroom and indicated the desire to plead guilty to the assault
charge. A factual basis for the plea was then elicited by defense counsel and the district court.
We find that defendant was treated fairly on this matter and that it does not form a basis to allow
withdrawal of the plea. Nothing in the record suggests that defendant’s decision to plead guilty,
as opposed to no contest, was involuntary, unintelligent, or the result of confusion.
With respect to the deferred sentence aspect of the plea, in response to questions and
statements by the prosecutor and the district court, defendant repeatedly acknowledged that there
was no guarantee that defendant would receive a deferred sentence and that the plea agreement
was not conditioned on the actual imposition of a deferred sentence. Defendant confirmed and
reconfirmed that he understood that there was no guarantee. The following colloquy took place:
The Court.
All right. There has been some talk about the Prosecutor’s
Delayed in this case. I do have to advise you that this Court is not
guaranteeing that to you. Do you understand that?
Defendant.
Yes Sir.
The Court.
Do you understand your plea is not contingent upon the Court
granting you that status?
(NO AUDIBLE RESPONSE)
The Court.
Yes?
Defendant.
Yes, I – Yes.
The Court.
Okay. Now understanding all of that, you still wish to plead
guilty?
Defendant.
Yes, I do.
In People v Johnson, 105 Mich App 614, 615-616; 307 NW2d 385 (1981), this Court
found no basis for allowing the defendant to withdraw his plea under the following
circumstances:
The plea was offered and accepted pursuant to a plea bargain agreement in
which the prosecutor agreed to recommend to the court, upon acceptance of the
plea to the offense as charged, that sentence be deferred for one year with the
understanding that the defendant, if he completed the appropriate probation
period, would then be allowed to plead to a misdemeanor.
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As in the present case, the trial court in Johnson told the defendant that it was not bound
by the prosecutor’s recommendation, and the trial court declined to follow the prosecutor’s
recommendation. Id. at 616. The Johnson panel ruled:
The defendant was clearly advised, prior to the acceptance of the plea, that
the court was not bound by the prosecutor’s recommendation and could impose
any sentence within the limitations set by statute. Moreover, defendant indicated
that he understood the court's advice on that point. We find no basis for setting
aside the defendant's plea. [Id. at 616-617 (citation omitted).]
Under Johnson, defendant is not entitled to withdraw his plea, as defendant knew that
there was no guarantee of a deferred sentence. We recognize that in the case at bar the
prosecutor, defense counsel, defendant, and the district court all proceeded on the mistaken belief
that a deferred sentence recommendation was within the realm of possibility and could be made
on the exercise of discretion by the probation department and the prosecutor’s office. There is
nothing in the record indicating that defendant was aware that the local deferred sentencing
program precluded him from receiving a deferred sentence recommendation by the probation
department and prosecutor’s office. Thus, at first glance, the plea agreement would appear to be
predicated on an illusion, i.e., that a deferred sentence recommendation might be forthcoming.
However, while a deferred sentence recommendation may have been an impossibility, the district
court indicated that the ultimate decision to impose a deferred sentence rested with the court.
Indeed, the prosecutor stated that, even with the lack of recommendations from the probation
department and the prosecutor’s office, the court could ignore the absence of recommendations
and still impose a deferred sentence. We note that MCL 771.1(2) does not preclude a court, in
cases where a defendant committed a prior crime or previously received the benefit of a deferred
sentence, from imposing a deferred sentence and then entering an order reflecting leniency
compatible with the ends of justice, i.e., vacating the conviction. Defendant on appeal provides
no argument that the district court lacked the ability to impose a deferred sentence under the
circumstances, even absent a deferred sentencing recommendation. The court, exercising its
discretion, clearly chose not to do so. Accordingly, the plea agreement was ultimately not
illusory, and Johnson directs that we affirm the rulings by the district and circuit courts.
With respect to defendant’s complaint that the prosecutor created confusion by
suggesting that expungement under MCL 780.621 was part of the deal, the argument lacks merit.
The expungement statute clearly was not implicated. MCL 780.621(3) provides that “[a]n
application shall not be filed until at least 5 years following imposition of the sentence for the
conviction that the applicant seeks to set aside or 5 years following completion of any term of
imprisonment for that conviction, whichever occurs later.” Also, the Attorney General has the
authority to contest an application for expungement. MCL 780.621(7). Clearly, deferred
sentencing under MCL 771.1(2) was at play here, not MCL 780.621.
Furthermore, we find no support in the record for the argument that defense counsel
pressured defendant into accepting the plea offer.
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Finally, given our findings on the issues above, and declining to fault defense counsel for
not knowing that a deferred sentencing recommendation could not be made, especially where the
prosecutor indicated that a recommendation was possible, we reject defendant’s claim of
ineffective assistance of counsel.
Affirmed.
/s/ William B. Murphy
/s/ Jane M. Beckering
/s/ Michael J. Kelly
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