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
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.
JANSEN, J. (concurring in part and dissenting in part).
I fully concur with the majority’s determination that defendant’s attorney rendered
ineffective assistance of counsel by failing to inform defendant that his guilty plea would require
him to register as a sex offender. The majority correctly concludes that, like the consequence of
deportation at issue in Padilla v Kentucky, ___ US ___; 130 S Ct 1473; 176 L Ed 2d 284 (2010),
the requirement to register as a sex offender is a serious consequence of which a defense attorney
must inform a client who wishes to plead guilty to certain offenses.
I respectfully dissent, however, from the majority’s determination that there was a
sufficient factual basis to support defendant’s guilty plea in this case. Defendant pleaded guilty
to enticing a child in violation of MCL 750.350(1), which provides:
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. A person who violates this section is guilty of a
felony, punishable by imprisonment for life or any term of years.
As noted by the majority, defendant informed the circuit court during the plea hearing
that he “pretty much endangered two young kids” by “doing drugs and driving around with [the
children] in the car.” Defendant admitted that he was supposed to return the children to their
mother at 11:00 p.m., but that 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[.]” The circuit court determined that these statements provided a sufficient factual basis for
defendant’s guilty plea. I cannot agree.
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Before accepting a defendant’s plea of guilty, the circuit court must establish a factual
basis for the plea. MCR 6.302(D)(1); People v Carlisle, 387 Mich 269, 273; 195 NW2d 851
(1972). A factual basis exists for a defendant’s guilty plea if “the factfinder could properly
convict on the facts elicited from the defendant at the plea proceeding,” People v Brownfield
(After Remand), 216 Mich App 429, 431; 548 NW2d 248 (1996), or if “an inculpatory inference
can reasonably be drawn by a jury from the facts admitted by the defendant even if an
exculpatory inference could also be drawn and defendant asserts the latter is the correct
inference,” Guilty Plea Cases, 395 Mich 96, 130; 235 NW2d 132 (1975).
I cannot conclude that the colloquy at the plea proceeding provided a sufficient factual
basis for defendant’s plea of guilty to the charge of child enticement. The offense of child
enticement is a specific intent crime. MCL 750.350(1); People v Kuchar, 225 Mich App 74, 77;
569 NW2d 920 (1997). The intent to detain or conceal a child from his or her parent is an
essential element of the offense. People v Rollins, 207 Mich App 465, 469; 525 NW2d 484
(1994). I perceive absolutely no evidence on the record to establish that defendant acted with the
requisite specific intent to detain or conceal the children from their mother. Indeed, the
children’s mother entrusted the children to defendant’s care in the first instance. I acknowledge
that defendant drove around Oakland County for hours looking for drugs with the children in the
backset of his vehicle. But the children were likely the furthest thing from his mind during this
period. It appears that defendant had only one true intention while driving in his vehicle—
namely, the intent to locate drugs. No rational trier of fact would believe that defendant’s actual
intention while he drove throughout Oakland County was to conceal or detain the children from
their mother.
It strikes me that defendant’s failure to return the children to their mother on time
resulted more from his negligence or drug-induced absentmindedness than from any criminal
intent to conceal or detain the children. While defendant’s act of searching for drugs was not
laudable by any means, there is no evidence to suggest that he acted with the specific intent “to
detain or conceal the child[ren] from the child[ren]’s parent or legal guardian . . . .” MCL
750.350(1). Given the testimony adduced at the plea proceeding and the other evidence
presented in this case, no reasonable finder of fact could conclude beyond a reasonable doubt
that defendant acted with the specific intent to detain or conceal the children from their mother.
Brownfield, 216 Mich App at 431.
I do not believe that there was a sufficient factual basis for defendant’s guilty plea, see
MCR 6.302(D)(1), and I therefore conclude that the circuit court erred by accepting the plea, see
MCR 6.302(A). I would remand with instructions to the circuit court to permit defendant to
withdraw his plea. In all other respects, I concur with the majority’s opinion.
/s/ Kathleen Jansen
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