PEOPLE OF MI V DEREK FONVILLE
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
FOR PUBLICATION
January 25, 2011
9:00 a.m.
Plaintiff-Appellee,
v
No. 294554
Oakland Circuit Court
LC No. 2006-208493-FC
DEREK FONVILLE,
Defendant-Appellant.
Before: FORT HOOD, P.J., and JANSEN and WHITBECK, JJ.
WHITBECK, J.
Defendant Derek Fonville appeals by leave granted the trial court order denying his
motion for relief from judgment. Fonville pleaded guilty to the count of child enticement1 as
part of a plea bargain. We reverse.
I. BASIC FACTS
The circumstances from which this action arises involve Fonville’s girlfriend’s two
children: J.R.1 (aged 10) and J.R.2 (aged 8). On the evening of April 19, 2006, the children’s
mother voluntarily placed them in Fonville’s care while she was at work. However, Fonville
failed to return the children at the agreed-upon time; instead, he kept them through the night and
well into the next day. Police recovered the children during the afternoon of April 20, 2006.
The children were tired, but unharmed. The prosecution accused Fonville of detaining the
children in his vehicle while he and a friend were driving around under the influence of alcohol
and drugs.
The prosecution originally charged Fonville with two counts of child enticement and two
counts of kidnapping.2 Following the preliminary examination, the trial court bound Fonville
over on the original counts, finding as follows:
1
MCL 750.350.
2
MCL 750.349.
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While it was clear that [Fonville] did have consent to have the children when he
first took them on April 19th, his job at that point in time, for lack of a better
word, was to keep an eye on the kids while [their mother] went to work and that
he would pick her up later. And the understanding was that the kids would be
returned to her at that point in time. While he had consent the fact of the matter is
he did not have consent to keep the kids overnight. He even admitted the same to
Detective [Lawrence] Fetherolf that he did keep the kids overnight; took them on
a number of different journeys out to Pontiac it sounds like. And did not return
the children home at any point during the night of the 19th or the morning of the
20th even when [J.R.1] . . . requested that he be allowed to go home. He was told
“no” at that point in time. The testimony of Detective Fetherolf was that
[Fonville] felt it more important to take care of [his friend] . . . than to return the
children to their mother at that point in time. So, I think the best you’ve got is a
question of fact. The matter will be bound over to circuit court on all charges and
bond will be continued.
In an amended information, the prosecution dropped the two kidnapping charges and kept
only the two counts of child enticement. Pursuant to an agreement with the prosecution, Fonville
agreed to enter a guilty plea to one count of child enticement in exchange for the prosecution
dropping the other remaining count of child enticement. Fonville’s plea bargain included a
Cobbs3 agreement, which was that the trial court would sentence him at the low end of the
guidelines.
At a September 2006 plea hearing, defense counsel stated that he had explained the plea
bargain to Fonville and Fonville’s mother. Fonville agreed on the record that it was his
understanding that he would enter the Cobbs plea with a minimum-sentence cap of 51 months
and that he would be able to withdraw his plea if the sentence went beyond that as a minimum.
The trial court then went on to accept Fonville’s guilty plea. Upon the trial court’s questioning,
Fonville stated that, on April 20, 2006, he “pretty much endangered two young kids” by “doing
drugs and driving around with them in the car.” Fonville acknowledged that the children were
less than 14 years old. He admitted that he and a friend were using cocaine at the time. Fonville
also agreed with the prosecution that he and his friend repeatedly drove to Pontiac to get crack
cocaine and that the children were with them. He agreed that his addiction to crack cocaine was
“feeding” his mind. Fonville acknowledged that he knew he was supposed to return the children
to their home at 11:00 p.m. on April 19th. He agreed that “because of getting crack and
everything[,]” he “ended up . . . keeping the kids with [him], driving around from 11 p.m. at
night through 2 p.m. in the afternoon the next day[.]” The prosecution asked him, “So you
fraudulently detained these kids, correct?”; Fonville answered “Yes.” The prosecution and
3
People v Cobbs, 443 Mich 276; 505 NW2d 208 (1993) (a Cobbs agreement is one in which a
defendant agrees to plead guilty or no contest in reliance on the trial court’s preliminary
evaluation of the sentence. However, the defendant is allowed to withdraw the plea in the event
that the trial court determines that it must exceed the preliminary evaluation).
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defense indicated their satisfaction with the factual basis for Fonville’s plea to child enticement.
And the trial court stated that it was satisfied that Fonville’s plea was knowingly, voluntarily,
and accurately made.
However, at the September 2006 sentencing hearing, defense counsel informed the trial
court that Fonville wished to withdraw his plea. Defense counsel explained that Fonville wished
to withdraw his plea because the plea agreement would encompass the requirement that he
register as a sex offender. Fonville then addressed the trial court and stated that he wanted a jury
trial. Fonville asserted that his defense counsel had told him that he would be making a “big
mistake going to trial.” He further explained:
When I came into the court on the 13th of September, I sat in the holding
cell all day and never came to court cause my lawyer set a court date with the
prosecutor indicating to him that I would take a Cobbs plea, when I did not.
That’s why I never came into court that day, because I was supposed to notify my
lawyer and if I wanted to plead to get hold of him, and I never agreed to it. So,
naturally, I didn’t come to court. So then I came back into court on the 15th of
September, that following Friday, and that’s when my lawyer kept telling me to
taking [sic] a Cobbs plea, four years to ten. I told him numerous times I wanted a
jury. That’s when he said a second time I was making a mistake.
So, when I came into court the 15th of September my lawyer came in a
third time and said to my mom, you should take the plea. While the prosecutor
was talking to my mom, I looked at my mom and she said “take it.” So, I did,
thinking she was looking out for my best interest, even though I didn’t do this.
When I talked to my mom later that evening she said the prosecutor said he knew
I didn’t kidnap those kids and he said to my mom if I went to trial that he would
have to play hardball.
Fonville denied the enticement charge, stating:
I would never lure a kid or kidnap anyone. It’s a hard pill to swallow especially
when I would never force [J.R.2] or [J.R.1] to do something they didn’t want to
do. I love kids and always try to help if I can.
The trial court indicated that it needed to review the plea transcript, so it adjourned sentencing.
Before the trial court could reconvene for sentencing, Fonville’s attorney moved to
withdraw as counsel for Fonville, which the trial court granted. And in January 2007, Fonville,
represented by new counsel, again moved to withdraw his plea. Although admitting to child
endangerment, Fonville asserted in his motion that he should be allowed to withdraw his plea
because he had no “evil, criminal intent[,]” merely “reckless criminal intent.” The prosecution
responded, asserting that Fonville’s admission that he fraudulently detained the children
supported the plea.
At a February 2007 hearing on the motion, defense counsel asserted that Fonville entered
his plea based on inaccurate and misleading advice of his former counsel and that he was
innocent of the charge of child enticement. Defense counsel asserted that when Fonville was
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told that he could plead to child enticement instead of kidnapping, he did not understand that
both kidnapping and child enticement carried potential life sentences. Defense counsel
contended that the facts did not support a conviction of child enticement, noting that the children
were unharmed. Defense counsel argued that the factual basis for the plea only supported a
conviction of second-degree child abuse, to which Fonville was willing to plead guilty.
The prosecution responded, noting that the transcript of the plea proceedings clearly
showed that Fonville acknowledged that he understood that the maximum sentence for child
enticement is life in prison. The prosecution further argued that the facts as pleaded supported
the offense of child enticement. The prosecution pointed out that Fonville did not claim
innocence; he admitted that he fraudulently detained the children by concealing their
whereabouts from their mother while he was driving around looking for cocaine. Thus, the
prosecution contended that Fonville had not demonstrated that the requested plea withdrawal
would be in the interest of justice. The prosecution additionally argued that permitting Fonville
to withdraw his plea would result in substantial prejudice. In support of this position, the
prosecution noted that if the case went to trial, the children would have to testify. According to
the prosecution, this would be extremely difficult for them, as they would have to be
psychologically prepared to do so.
Considering Fonville’s motion, the trial court found that (1) Fonville’s plea was valid, (2)
Fonville entered into a Cobbs agreement, (3) the prosecutor was the sole charging authority, (4)
nothing indicated that Fonville was innocent, and (5) Fonville admitted to the facts supporting
his plea. The trial court ultimately reasoned:
I understand that those are the types of allegations that, quite frankly,
could be made in a lot of cases and not constituting child enticement, but the
requirement to go forward with a child enticement charge, again, is not within the
province of the Court finding that would outweigh the benefits of the finality and
all the other issues associated and have been set forth by the People.
The Court also notes that the Court gave [Fonville] a Cobbs impression
[sic] which was to the, basically, the bottom of the guidelines and so given the
totality of the circumstances and for the reasons as set forth by the People,
[Fonville’s] motion to withdraw his plea is denied.
At the subsequent sentencing hearing, defense counsel acknowledged the Cobbs
agreement for the trial court not to exceed the guidelines minimum of 51 months, but he
attempted to persuade the trial court to deviate below that minimum. Defense counsel pointed to
Fonville’s history with the children, the fact that the children were not harmed, and the fact that
the children’s mother had submitted a letter stating that he did not deserve jail time.
To the extent that Fonville was seeking again to withdraw his plea, the trial court
reiterated that Fonville’s plea was knowing, voluntary, and accurate. It found no basis for
permitting the withdrawal. The trial court then provided Fonville with his opportunity for
allocution, and Fonville told the trial court:
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On April 20th, 2006[,] I had possession of my girlfriend’s two young
children, [J.R.1], age ten, and [J.R.2], age eight.
I was supposed to return the two children to the mother at 11 p.m. . . . I did
not do so. Instead[,] I retained possession of the children until I was apprehended
by the police at 12:15 p.m., in the afternoon of April 21st, 2006.
I admitted that I did not return on time and I kept the children in the car
with me while I drove around Oakland County looking for cocaine continuously
from 11 p.m. until apprehended by police the next day at 12:15 p.m. on April
21st, 2006.
However, there’s one important fact, which is, that approximately one
hour before being apprehended Waterford Police investigated my vehicle,
questioned . . . me [and] a passenger . . . , and the two children, who were playing
basketball, and all were released to go on our way . . . .
***
. . . I plead [sic] guilty . . . . At . . . the date of sentence, I read a letter to
the Court detailing why I wanted to withdraw my plea. I essentially stated that I
did not receive accurate advice and claimed my innocence to kidnapping. In
addition, I never realized that I would go down as a sexual offender.
I always thought I was guilty of some sort of child endangerment charge
because of my actions, not an enticement charge, which denotes some kind of evil
criminal intent as oppose [sic] to reckless intent. . . .
***
. . . I would like to say that with child enticement on my record makes me
a sexual predator.
I will never make the money I’m used to making and my career will be
over.
I had permission to have these children, which I’ve had permission before.
So how can I be charged with child enticement . . . .
***
I did put them [sic] children in a bad situation and I am sorry that my
addiction took over. I was drinking along with taking xanax, which literally made
me blackout. That’s the real reason I’m in this situation. The fact of the matter is,
yes, I should be punished, but enticement is not even chose [sic] to child abuse.
Again, to the extent Fonville sought to withdraw his plea, the trial court denied the request. The
trial court then sentenced Fonville to a term of 51 months to 20 years in prison.
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Fonville moved to withdraw his plea after sentencing, arguing again that the facts did not
support the charge of child enticement. But the trial court denied the motion, finding that
Fonville failed to present any new issues.
Fonville filed an application for leave to appeal, challenging the constitutionality of the
child enticement statute; the prosecution’s choice to charge him with child enticement; and the
denial of his motion to withdraw his plea on the basis of ineffective assistance of counsel,
coercion, and prosecutorial misconduct. This Court denied the application for lack of merit.4
The Michigan Supreme Court also denied his application for leave to appeal.5
Fonville then moved for relief from judgment, raising the same issues that he now brings
on appeal. The trial court found that Fonville failed to demonstrate good cause for having failed
to raise these issues in his earlier application for leave to appeal and that he failed to show actual
prejudice. The trial court found that defense counsel’s failure to inform Fonville of the collateral
consequences of the plea, namely inclusion on the sex offender registry, did not constitute
ineffective assistance of counsel. The trial court further found “no irregularity so offensive to the
maintenance of a sound judicial process that [Fonville’s] conviction should not be allowed to
stand.”
Accordingly, the trial court denied Fonville’s motion.
Fonville moved for
reconsideration, but the trial court denied the motion.
Fonville now appeals by leave granted.
II. CLAIMS ON APPEAL
A. STANDARD OF REVIEW
This Court reviews for an abuse of discretion a trial court’s denial of a defendant’s
motion for relief from judgment.6 This Court also reviews for an abuse of discretion the trial
court’s denial of a defendant’s motion to withdraw his plea.7 An abuse of discretion occurs
when the decision results in an outcome falling outside the range of principled outcomes.8
Moreover, this Court reviews de novo constitutional issues.9
4
People v Fonville, unpublished order of the Court of Appeals, issued October 31, 2007 (Docket
No. 280968).
5
People v Fonville, 480 Mich 1136; 745 NW2d 796 (2008), recon den 481 Mich 881 (2008).
6
People v Ullman, 244 Mich App 500, 508; 625 NW2d 429 (2001).
7
People v Billings, 283 Mich App 538, 549; 770 NW2d 893 (2009).
8
Woodard v Custer, 476 Mich 545, 557; 719 NW2d 842 (2006).
9
People v McGee, 258 Mich App 683, 699; 672 NW2d 191 (2003).
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B. LEGAL STANDARDS
According to MCR 6.508(D), a defendant seeking relief from judgment has the burden of
establishing entitlement to such relief. MCR 6.508(D) also states that a court may not grant that
relief if, among other things, the motion:
(3) alleges grounds for relief . . . 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 . . . 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;
(iii) in any case, the irregularity was so offensive to the maintenance of a
sound judicial process that the conviction should not be allowed to stand
regardless of its effect on the outcome of the case;
***
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.
C. WITHDRAWAL OF PLEA
Fonville argues that he should be allowed to withdraw his plea to child enticement
because he has consistently maintained his innocence of the crime, the plea was entered based on
an incorrect charge, and there is an insufficient factual basis to support a conviction.
When reviewing whether the factual basis for a plea is adequate, this Court considers
whether the fact finder could find the defendant guilty based on the facts elicited from him at the
plea proceeding.10
10
People v Adkins, 272 Mich App 37, 38; 724 NW2d 710 (2006).
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“A factual basis to support a plea exists if an inculpatory inference can be
drawn from what the defendant has admitted. This holds true even if an
exculpatory inference could also be drawn and the defendant asserts that the latter
is the correct inference. Even if the defendant denies an element of the crime, the
court may properly accept the plea if an inculpatory inference can still be drawn
from what the defendant says.”[11]
Additionally, MCR 6.310(B) provides, in pertinent part, that a motion to withdraw a plea before
sentencing should only be granted if the defendant is able to show that withdrawal of the plea is
“in the interest of justice,” meaning that he has to articulate “a fair and just reason” for
withdrawing the plea.12 “Fair and just reasons” include reasons like a claim of actual innocence
or a valid defense to the charge.13 Things that are not considered “fair and just” reasons are
dissatisfaction with the sentence or incorrect advice of his attorney.14
Fonville pleaded guilty to child enticement. MCL 750.350 defines that crime as follows:
A person shall not maliciously, forcibly, or fraudulently lead, take, carry
away, decoy, or entice away, any child under the age of 14 years, with the intent
to detain or conceal the child from the child’s parent or legal guardian, or from the
person or persons who have adopted the child, or from any other person having
the lawful charge of the child.
At the plea proceeding, Fonville testified that he “pretty much endangered two young
kids[.]” He did this by “doing drugs and driving around with them in the car.” He admitted that
he and his friend were driving around with the children, getting crack cocaine. He admitted that
he knew he was supposed to return the children to their mother at 11:00 p.m. and that he told
both the children and their mother that this was what he was going to do. “But [he] ended up
because of getting crack and everything keeping the kids with [him], driving around from
11 p.m. at night through 2 p.m. in the afternoon the next day . . . .” Fonville agreed that he had
“fraudulently detained” the children.
Given that Fonville’s admissions were in line with the elements of the charged crime, we
conclude that the trial court did not abuse its discretion in denying his motion to withdraw his
plea. An inculpatory inference can be drawn from that which Fonville admitted. That is,
although he might have had consent to originally take the children, he admitted that he later
fraudulently detained them by driving around and doing drugs until the next afternoon while the
11
People v Thew, 201 Mich App 78, 85; 506 NW2d 547 (1993), quoting People v Jones, 190
Mich App 509, 511-512; 476 NW2d 646 (1991) (internal citations omitted).
12
People v Wilhite, 240 Mich App 587, 594; 618 NW2d 386 (2000).
13
Id. at 596.
14
Id. at 597; People v Haynes (After Remand), 221 Mich App 551, 559; 562 NW2d 241 (1997).
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children were in the car, instead of returning them at 11:00 p.m. as agreed upon with their
mother.
Fonville did not sufficiently demonstrate that withdrawal of his plea was in the interest of
justice. Moreover, although Fonville claimed that he was innocent of the crime as charged
because he did not have an “evil intent,” he never argued that he was actually innocent of the
alleged conduct. The prosecution has authority to choose appropriate charges,15 and Fonville
voluntarily pleaded to the charge pursuant to a valid plea agreement placed on the record.
D. CRUEL AND UNUSUAL PUNISHMENT
Fonville argues that the requirement that he register as a sex offender, where there was
absolutely no sexual component to the offense that was committed, amounts to cruel and unusual
punishment under Michigan’s Constitution. He contends that, at minimum, he should be entitled
to an order removing his name from the sex offender registry.
The Sex Offenders Registration Act (SORA),16 requires persons convicted of certain
listed offenses to register as sex offenders.17 The listed offenses include child enticement.18
Child enticement involves the leading, taking, carrying away, decoying or enticing away a child
under fourteen years of age with the intent to detain or conceal the child from the child’s parent.
Thus, Fonville is correct that the offense of child enticement includes no express sexual
component as a requirement for a conviction of the offense.
However, the Legislature has made clear that the intended purpose of the SORA is to
protect public safety and monitor those persons who pose a potential danger to children:
The legislature declares that the sex offenders registration act was enacted
pursuant to the legislature’s exercise of the police power of the state with the
intent to better assist law enforcement officers and the people of this state in
preventing and protecting against the commission of future criminal sexual acts
by convicted sex offenders. The legislature has determined that a person who has
been convicted of committing an offense covered by this act poses a potential
serious menace and danger to the health, safety, morals, and welfare of the
people, and particularly the children, of this state. The registration requirements
of this act are intended to provide law enforcement and the people of this state
15
People v Williams, 186 Mich App 606, 609-610; 465 NW2d 376 (1990).
16
MCL 28.721 et seq.
17
MCL 28.723.
18
MCL 28.722(e)(vii); MCL 750.350.
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with an appropriate, comprehensive, and effective means to monitor those persons
who pose such a potential danger.[19]
Thus, although the offense of child enticement includes no express sexual component as a
requirement for a conviction of the offense, the Legislature has nevertheless deemed registration
for that crime as a necessary measure to protect the safety and welfare of the children of this
state. And, in this case, Fonville admitted that his conduct, while not sexual in nature,
“endangered two young kids[.]”
Moreover, requiring that a defendant comply with the statutory mandate that he register
as a sex offender for a listed offense is not punishment. Although a defendant may see sex
offender registration as a penalty of conviction for a listed offense, it is not actually a punitive
measure “‘intended to chastise, deter or discipline an offender.’”20 It is merely a “remedial
regulatory scheme furthering a legitimate state interest.”21
To the extent that Fonville argues that we should follow People v Dipiazza,22 we
disagree, as that case is factually distinguishable. In Dipiazza, this Court held that requiring the
defendant in that case to register as a sex offender was cruel or unusual punishment.23 However,
in that case, after the defendant completed probation, his case was dismissed under the terms of
the Holmes Youthful Trainee Act,24 leaving him with no conviction on his record.25 Despite the
dismissal of his conviction, because he was assigned to youthful trainee status on August 29,
2004, he continued to remain required to register as a sex offender, whereas defendants
convicted after October 1, 2004, were not required to register (unless the defendant’s status of
youthful trainee was revoked and an adjudication of guilt was entered).26 This Court concluded
that, under those circumstances, requiring the defendant to register as a sex offender was cruel
and unusual punishment.27
19
MCL 28.721a (emphasis added).
20
People v Golba, 273 Mich App 603, 617; 729 NW2d 916 (2007), quoting Doe v Kelley, 961 F
Supp 1105, 1108 (WD Mich, 1997).
21
Golba, 273 Mich App at 617.
22
People v Dipiazza, 286 Mich App 137; 778 NW2d 264 (2009).
23
Id. at 156.
24
MCL 762.11 et seq.
25
Dipiazza, 286 Mich App at 140.
26
Id. at 140, 143.
27
Id. at 156.
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Conversely, here, there has been no similar amendment to the statutory scheme under
which Fonville pleaded guilty and his conviction as not been dismissed. Therefore, we disagree
that the reasoning in Dipiazza applies in this case.
E. EFFECTIVE ASSISTANCE OF COUNSEL
Fonville argues that he did not receive effective assistance of counsel because his defense
counsel failed to move to quash the information, which, he alleges, over-charged him. Fonville
also argues that he did not receive effective assistance of counsel because his defense counsel
failed to advise him that his plea to child enticement required that he register as a sex offender.
While we disagree with his first contention, we find merit in the second.
In asserting a claim of ineffective assistance of counsel, a defendant must show (1) that
defense counsel’s performance fell below an objective standard of reasonableness under
prevailing professional norms, and (2) that defense counsel’s deficient performance so
prejudiced the defendant such that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.28 In proving these
elements, the defendant must overcome a strong presumption that defense counsel’s performance
constituted sound trial strategy.29 Absent an evidentiary hearing, this Court’s review of
counsel’s performance is limited to mistakes apparent on the record.30
1. FAILURE TO MOVE TO QUASH THE INFORMATION
To the extent that Fonville argues that he did not receive effective assistance of counsel
because his defense counsel failed to move to quash the information, Fonville has not properly
presented this argument to this Court because he failed to identify it as an issue in his statement
of questions presented.31 Therefore, he has waived this issue for appellate review.32
We note, however, that a motion to quash the information would have been futile. As
stated, following the preliminary examination, the trial court bound Fonville over on the original
counts, including child enticement, finding as follows:
While it was clear that [Fonville] did have consent to have the children when he
first took them on April 19th, his job at that point in time, for lack of a better
word, was to keep an eye on the kids while [their mother] went to work and that
28
Strickland v Washington, 466 US 668, 694; 104 S Ct 2052; 80 L Ed 2d 674 (1984); see People
v Pickens, 446 Mich 298, 302-303; 521 NW2d 797 (1994).
29
People v Riley, 468 Mich 135, 140; 659 NW2d 611 (2003).
30
People v Jordan, 275 Mich App 659, 667; 739 NW2d 706 (2007).
31
MCR 7.212(C)(5); Caldwell v Chapman, 240 Mich App 124, 132; 610 NW2d 264 (2000).
32
Caldwell, 240 Mich App at 132.
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he would pick her up later. And the understanding was that the kids would be
returned to her at that point in time. While he had consent the fact of the matter is
he did not have consent to keep the kids overnight. He even admitted the same to
Detective [Lawrence] Fetherolf that he did keep the kids overnight; took them on
a number of different journeys out to Pontiac it sounds like. And did not return
the children home at any point during the night of the 19th or the morning of the
20th even when [J.R.1] . . . requested that he be allowed to go home. He was told
“no” at that point in time. The testimony of Detective Fetherolf was that
[Fonville] felt it more important to take care of [his friend] . . . than to return the
children to their mother at that point in time. So, I think the best you’ve got is a
question of fact. The matter will be bound over to circuit court on all charges and
bond will be continued.
Where sufficient evidence existed at the preliminary examination to support a bindover,
defense counsel was not ineffective for failing to move to quash the information.33 “Trial
counsel cannot be faulted for failing to raise an objection or motion that would have been
futile.”34 Here, the trial court found that there was sufficient evidence to create a question of fact
that Fonville committed the acts as charged. Therefore, Fonville’s claim is without merit.
2. FAILURE TO ADVISE REGARDING
SEX OFFENDER REGISTRATION REQUIREMENT
a. BASIC LEGAL PRINCIPLES
“[W]hen a defendant argues ineffective assistance of counsel in the context of a guilty
plea, the defendant is essentially arguing that counsel failed to provide sufficient information
regarding the consequences, elements, or possible defenses of the plea.”35 And “‘to establish
ineffective assistance of counsel in the context of a guilty plea, courts must determine whether
the defendant tendered a plea voluntarily and understandingly.’”36 “Absent sufficient
information, the plea would be unknowing and, consequently, involuntary.”37 “Defense
counsel’s advice does not need to be correct, but it must fall within the range of competence
demanded of attorneys in criminal cases.”38 More specifically,
33
People v Darden, 230 Mich App 597, 605; 585 NW2d 27 (1998).
34
People v Fike, 228 Mich App 178, 182; 577 NW2d 903 (1998).
35
People v Davidovich, 238 Mich App 422, 427; 606 NW2d 387 (1999).
36
Davidovich, 238 Mich App at 427, quoting People v Corteway, 212 Mich App 442, 445; 538
NW2d 60 (1995).
37
Davidovich, 238 Mich App at 427.
38
Id. at 425.
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for purposes of determining whether defense counsel was effective[,] a defendant
need only be made aware of the direct consequences of a guilty plea. A
defendant’s ignorance of the collateral consequences of a plea does not render the
plea involuntary. Counsel’s failure to properly advise of collateral consequences
of a plea does not bear on whether a defendant properly understood the decision
to plead guilty to the charges in question.[39]
Examples of collateral or incidental consequences include the loss of employment, loss of
the right to vote, loss of the right to travel freely abroad, loss of the right to a driver’s license,
loss of the right to possess firearms, a plea’s possible enhancing effects on a subsequent
sentence, institution of separate civil proceedings against the defendant for commitment to a
mental health facility, loss of good time credit, possibility of imposition of consecutive
sentences, possibility of undesirable discharge from the armed forces,40 disqualification from
public benefits, dishonorable discharge from the Armed Forces, and loss of business or
professional licenses.41
In contrast, this Court has indicated that an example of a direct consequence would be
informing a defendant of the consequences of a plea when being sentenced as a habitual
offender.42 In People v Boatman, although concluding that it lacked the authority to expand the
scope of the MCR 6.302(B)(2)43 language to require that a trial court inform a defendant of the
effect of the habitual offender statute on his sentence, this Court nevertheless explained that
“because of the existence of specific and separate guidelines applicable to the sentencing of
habitual offenders, the effect of a defendant’s habitual-offender status on sentencing does not
comprise a ‘collateral consequence.’”44 This Court stressed that a defendant must know the most
serious consequences of his guilty plea.45 Therefore, according to this Court,
39
Id. at 428 (emphasis added); see also People v Haynes, 256 Mich App 341, 349; 664 NW2d
225 (2003) (“[C]riminal defendants may not withdraw a guilty plea on the ground that they were
unaware of the future collateral or incidental effects of the initial valid plea.”).
40
Davidovich, 238 Mich App at 429.
41
Padilla v Kentucky, ___ US ___; 130 S Ct 1473, 1486; 176 L Ed 2d 284 (2010) (ALITO, J.,
concurring).
42
People v Boatman, 273 Mich App 405, 406; 730 NW2d 251 (2006).
43
MCR 6.302(B) requires only that a trial court advise and determine that the defendant
understands: “(1) the name of the offense to which the defendant is pleading; the court is not
obliged to explain the elements of the offense, or possible defenses; [and] (2) the maximum
possible prison sentence for the offense and any mandatory minimum sentence required by
law[.]”
44
Boatman, 273 Mich App at 409.
45
Id. at 412.
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The existence of separate guidelines specified for use with habitual offenders
demonstrates the necessity of informing a defendant of the use of these guidelines
to assure “understanding” of the consequences of a plea, particularly under the
circumstances of this case where the difference in sentencing comprised a
distinction between a misdemeanor and a felony, and a difference of 13 years in the
sentence imposed.[46]
b. THE PARTIES’ ARGUMENTS
The prosecution argues that sex offender registration is a collateral consequence of a
conviction and, therefore, defense counsel’s failure to inform Fonville of that requirement did
not render his plea defective. In making this argument, the prosecution relies on an unpublished
decision of this Court, In re Dywan Lyons.47 In Lyons, a panel of this Court held that a trial
court’s failure to inform a defendant that he would be required to register as a sex offender did
not provide a basis for overturning an otherwise valid plea.48 Specifically, the Lyons panel stated
that “[r]egistration as a sex offender is a collateral consequence of a conviction.”49 The
prosecution acknowledges that sex offender registration is a serious consequence of a guilty plea.
However, the prosecution points out that other recognized consequences, like the right to vote,
are also serious, but nevertheless, merely incidental consequences to the guilty plea. The
prosecution also points out that in Magyar v Mississippi, the Mississippi Supreme Court
recognized that “virtually every other jurisdiction to address the question” has held that “the
requirement to register as a sex offender is a collateral consequence of a guilty plea[.]”50 In
those cases, the courts reasoned that sex offender registration is a collateral consequence of a
guilty plea because the registration requirement is not penal in nature, and thus not part of
sentencing procedures.51
46
Id.
47
In re Dywan Lyons, unpublished opinion per curiam of the Court of Appeals, issued December
19, 2000 (Docket No. 217858).
48
Id. at 1.
49
Id.
50
Magyar v Mississippi, 18 So 3d 807, 811-812, n 5 (Miss, 2009) (citing cases from Alabama,
Arizona, Colorado, Delaware, Florida, Hawaii, Idaho, Illinois, Iowa, Kansas, Kentucky,
Massachusetts, Missouri, Nevada, New Jersey, New Mexico, New York, North Dakota, Ohio,
Oregon, Pennsylvania, South Carolina, Tennessee, Washington, Wisconsin, and Wyoming).
51
See, e.g., Robinson v Alabama, 730 So 2d 252, 254 (Ala Crim App, 1998) (“Registration and
community notification requirements for sex offenders do not constitute punishment.”); People v
Montaine, 7 P3d 1065, 1067 (Colo Ct App, 1999) (“Although the duty to register flows directly
from [the] defendant’s conviction as a sex offender, it does not enhance [the] defendant’s
punishment for the offense.”); Florida v Partlow, 840 So 2d 1040, 1043-44 (Fla, 2003) (“A
direct consequence must affect the range of punishment in a definite, immediate, and largely
-14-
Fonville, however, argues that this Court should hold that defense counsel was required
to inform him that he must register as a sex offender because that requirement was not a future
collateral or incidental effect of the initial valid plea.52 Rather, Fonville contends that
registration as a sex offender is an immediate and absolute effect of his conviction.53 Fonville
also contends that a reasonably competent attorney in the practice of criminal law would have
been aware of the sex-offender-registration requirement. And he contends that if defense
counsel had informed him of the requirement, then he would not have pleaded guilty to the child
enticement charge.
c. DEFINING THE CONSEQUENCE
The salient determination comes down to whether registration as a sex offender is a direct
or collateral consequence of a defendant’s guilty plea.
We first note that we are not persuaded by the prosecution’s reliance on In re Dywan
Lyons or Magyar. In re Dywan Lyons is unpublished, offered no rationale for its conclusion, and
is nonbinding on our decision in this case.54 Additionally, the cases from other jurisdictions that
the Mississippi Supreme Court cited in Magyar are also nonbinding on this Court. And although
we recognize the rationale in those cases as persuasive, we are more persuaded by the reasoning
offered by the United States Supreme Court’s recent decision in Padilla v Kentucky. The
parallels with this case, although not exact, are significant.
In Padilla, the Supreme Court considered the question whether defense counsel has an
obligation to advise a defendant that the offense to which he is pleading guilty will result in his
deportation from this country. The defendant argued that his defense counsel was deficient for
erroneously advising him that he did not “have to worry” about deportation as a consequence of
his guilty plea.55 In truth, the defendant’s plea to the charged offense “made his deportation
virtually mandatory.”56 The Court held that a defense attorney must inform a defendant whether
his plea carries a risk of deportation.57
automatic way. The registration requirement has absolutely no effect on the ‘range of the
defendant’s punishment’ for the crime[.]”).
52
See Haynes, 256 Mich App at 349.
53
See MCL 28.723(1)(a) (requiring that any individual convicted of a listed offense after
October 1, 1995 register under the sex offenders registration act [SORA], MCL 28.721 et seq.);
MCL 28.722(e)(vii) (listing MCL 750.350 [child enticement] as a listed offense under the
SORA).
54
See MCR 7.215(C)(1).
55
Padilla, 130 S Ct at 1478.
56
Id.
57
Id.
-15-
In so ruling, the Supreme Court agreed with the defendant that “constitutionally
competent counsel would have advised him that his conviction for drug distribution made him
subject to automatic deportation.”58 The Court reached this conclusion by first clarifying that
although “deportation is a particularly severe ‘penalty,’ . . . it is not, in a strict sense, a criminal
sanction.”59 However, the Court went on to explain that “[a]lthough removal proceedings are
civil in nature, . . . deportation is nevertheless intimately related to the criminal process.” 60 The
Court determined that the “nearly . . . automatic result” of removal for noncitizen offenders made
it difficult “to divorce the penalty from the conviction in the deportation context.”61 Therefore,
according to the Court, “[d]eportation as a consequence of a criminal conviction is, because of its
close connection to the criminal process, uniquely difficult to classify as either a direct or a
collateral consequence.”62 Accordingly, the Court concluded that “[t]he collateral versus direct
distinction is thus ill-suited to evaluating a Strickland claim concerning the specific risk of
deportation.”63
Turning to the merits of the defendant’s ineffective assistance claim, the Supreme Court
noted that “[t]he weight of prevailing professional norms supports the view that counsel must
advise her client regarding the risk of deportation.”64 The Court added that its own precedent
had also recognized the importance of deportation to a defendant’s plea decision.65 The Court
then explained that where, as in Padilla, “the terms of the relevant immigration statute are
succinct, clear, and explicit in defining the removal consequence” for the defendant’s conviction,
58
Id. The Court left it to the lower court to determine on remand whether the defendant could
satisfy the prejudice prong of the two-pronged ineffective assistance analysis. Id. at 1483-1484.
59
Id. at 1481. We note that this point is in keeping with the prevailing conclusion that the
statutory mandate that a defendant register as a sex offender is not punishment, but merely a
“remedial regulatory scheme furthering a legitimate state interest.” Golba, 273 Mich App at
617; see also, e.g., Robinson, 730 So 2d at 254 (“Registration and community notification
requirements for sex offenders do not constitute punishment.”); Montaine, 7 P3d at 1067
(“Although the duty to register flows directly from [the] defendant’s conviction as a sex
offender, it does not enhance [the] defendant’s punishment for the offense.”); Partlow, 840 So 2d
at 1043-44 (“A direct consequence must affect the range of punishment in a definite, immediate,
and largely automatic way. The registration requirement has absolutely no effect on the “range
of the defendant’s punishment” for the crime[.]”).
60
Padilla, 130 S Ct at 1481.
61
Id.
62
Id. at 1482.
63
Id.
64
Id.
65
Id. at 1483, citing INS v St Cyr, 533 US 289, 323; 121 S Ct 2271; 150 L Ed 2d 347 (2001).
-16-
defense counsel’s “duty to give correct advice is . . . clear.”66 The Court further noted, however,
that even where the statute is not as clear, the “[l]ack of clarity in the law . . . does not obviate the
need for counsel to say something about the possibility of deportation[.]”67
On the basis of Padilla, we recognize a significant parallel to be drawn from the Supreme
Court’s rationale in that case to the circumstances of this case. Similar to the risk of deportation,
sex offender registration “as a consequence of a criminal conviction is, because of its close
connection to the criminal process, . . . difficult to classify as either a direct or a collateral
consequence[,]” and that therefore “[t]he collateral versus direct distinction is . . . ill-suited to
evaluat[e] a Strickland claim” concerning the sex-offender-registration requirement.68
Like the consequence of deportation, sex offender registration is not a criminal sanction,
but it is a particularly severe penalty.69 In addition to the typical stigma that convicted criminals
are subject to upon release from imprisonment, sexual offenders are subject to unique
ramifications, including, for example, residency reporting requirements70 and place of domicile
restrictions.71 Moreover, sex offender registration is “intimately related to the criminal
process.”72 The “automatic result” of sex offender registration for certain defendants makes it
difficult “to divorce the penalty from the conviction.”73
Further, where, as here, the sex offender registration statute is “succinct, clear, and
explicit” in defining the registration requirement for the defendant’s conviction, defense
counsel’s duty to give correct advice is likewise clear.74 Thus, we conclude that applying the
Padilla rationale to this case supports a holding that defense counsel must advise a defendant
that registration as a sexual offender is a consequence of his guilty plea.75 The failure to inform
a pleading defendant that his plea will necessarily require registration of a sex offender affects
whether the plea was knowingly made.
66
Padilla, 130 S Ct at 1483.
67
Id. at 1483 n 10.
68
Id. at 1482.
69
See id. at 1481.
70
MCL 28.724a; MCL 28.725; MCL 28.725a.
71
MCL 28.735.
72
See Padilla, 130 S Ct at 1481.
73
See id.
74
See id. at 1483.
75
Accord Taylor v Georgia, 698 SE2d 384, 388 (Ga App, 2010) (post-Padilla case, holding that
the failure of trial counsel to advise his client that his guilty plea to child molestation would
require that he comply with Georgia’s sex offender registration requirement constituted deficient
performance).
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In reaching our conclusion in this case, we recognize that this Court held in People v
Davidovich that the possibility that a defendant would be deported was a collateral, rather than a
direct, consequence of his sentence.76 However, that holding does not directly bear on this case,
as that case was limited to its facts. And although the Padilla holding directly contradicts the
Davidovich ruling, this is not a deportation case. We rely on Padilla simply for the logic of its
rationale, not its ultimate disposition. We also recognize the Davidovich Court’s concern that
“[a]llowing defendants to withdraw their pleas once they discover that their conviction subjects
them to deportation would open the door for defendants to withdraw their pleas for other
collateral reasons.”77 However, while the Padilla decision has provided us with the key to open
the door to allow defendants to withdraw their pleas for failure to be informed of the sex
offender registration requirement, we do not see our decision as opening the floodgates to
withdrawal of plea motions for other collateral reasons. Our decision is limited to distinguishing
the unique and mandatory nature of the specific consequence of the sex offender registration
requirement from the common, potential and incidental consequences associated with criminal
convictions.78
Additionally, we note that the prosecution argues that Padilla is not applicable to this
case because the Supreme Court’s decision in that case does not apply retroactively. However,
as stated, we are not applying the Padilla decision to dictate the result in this case. Rather, we
are simply borrowing the logic of its rationale. Moreover, we are mindful that concerns for
finality caution that the validity of guilty pleas not be called into question when entered under the
law on the day the plea is taken.79 However, the sex offender registration requirement was on
the books at the time of Fonville’s plea.80 And, more importantly, Fonville has shown “serious
derelictions on the part of counsel sufficient to show that his plea was not, after all, a knowing
and intelligent act.”81
F. APPLICATION TO FONVILLE
The sex offender registration statute is “succinct, clear, and explicit” in defining the
registration requirement for Fonville’s conviction for child enticement. Therefore, to satisfy his
duty to act as constitutionally competent counsel, Fonville’s defense attorney owed a duty to
76
Davidovich, 238 Mich App at 427 n 4, 428.
77
Id. at 428.
78
See Padilla, 130 S Ct at 1482 (referring to the unique and specific risk of deportation).
79
People v Osaghae, 460 Mich 529, 534; 596 NW2d 911 (1999).
80
See id. at 533.
81
Id. at 534.
-18-
clearly advise Fonville that his plea to the charge of child enticement would require that he
register as a sex offender.82
Moreover, we also conclude that defense counsel’s failure to inform Fonville that his plea
would require registration as a sex offender affected whether his plea was knowingly made. This
failure, therefore, prejudiced Fonville to the extent that, but for counsel’s error, the result of the
proceeding would have been different. Fonville repeatedly informed the lower court that he
would not have pleaded to the charge of child enticement if he had known that he would also be
required to register as a sex offender. And although the registration requirement does not
constitute cruel and unusual punishment in the context of this charge, we do believe that, given
the lack of any sexual component to Fonville’s conduct, it was all the more imperative that his
counsel advise him of the unique registration consequences of his plea.
III. CONCLUSION
In sum, we conclude that Fonville is not allowed to withdraw his plea to child enticement
because there was a sufficient factual basis on the record to support his conviction. Likewise, we
conclude that defense counsel was not ineffective for failing to move to quash the information.
We also conclude that the requirement that he register as a sex offender does not amount to cruel
and unusual punishment.
However, we conclude that defense counsel’s performance was constitutionally defective
when he failed to inform Fonville of the sex offender registration requirement. And we conclude
that this failure prejudiced Fonville.
Accordingly, we reverse and remand for further proceedings.
jurisdiction.
We do not retain
/s/ William C. Whitbeck
/s/ Karen M. Fort Hood
82
See Padilla, 130 S Ct at 1483.
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