PEOPLE OF MI V JIMMIE DEE KOBY
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
August 17, 2004
Plaintiff-Appellee,
v
No. 247871
Lenawee Circuit Court
LC No. 02-009807-FC
JIMMIE DEE KOBY,
Defendant-Appellant.
Before: Cavanagh, P.J., and Jansen and Saad, JJ.
PER CURIAM.
I. FACTS AND PROCEDURAL HISTORY
Defendant Jimmie Dee Koby pled nolo contendere to one count of second-degree
criminal sexual conduct (sexual contact involving a person aged less than thirteen years) (“CSCII”),1 and the trial court sentenced him to 38 to 180 months in prison. Defendant appeals the
trial court’s order that denied his motion to withdraw his nolo contendere plea after sentencing,
and we affirm.
On the evening of March 29, 2002, Lenawee County Sheriff’s deputies and Cambridge
Township Police officers questioned defendant in connection with defendant’s daughter’s
complaint that defendant sexually molested her. The police gave defendant a Miranda2 warning
and defendant waived his rights and gave a written statement in which he admitted to having
engaged in sexual intercourse and oral sex with his daughter, the victim, on four to five
occasions. Defendant also admitted that he inappropriately touched the victim on several
occasions.
On April 24, 2002, the prosecution charged defendant with six counts of first-degree
criminal sexual conduct (sexual penetration involving a person aged less than thirteen years)
1
MCL 750.520c(1)(a)
2
Miranda v Arizona, 384 US 436, 444; 86 S Ct 1602; 16 L Ed 2d 694 (1966)
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(“CSC-I”)3 and two counts of third-degree criminal sexual conduct (sexual penetration involving
a person aged thirteen to fifteen years) (“CSC-III”).4
On July 15, 2002, defendant filed a motion with the trial court that sought to suppress his
confession as involuntarily given because he claims he was intoxicated when he wrote his
confession. The trial court heard defendant’s motion on July 24, 2002, and found that the
prosecution had proven that defendant voluntarily gave his statement, and therefore, the trial
court denied defendant’s motion to suppress the statement. Later that same day, defendant
informed the trial court that he wished to enter into a plea agreement.
At a hearing held on July 25, 2002, defendant stated that he wished to plead nolo
contendere to one count of CSC-II. In exchange, the prosecution dismissed the original six CSCI counts and the two CSC-II counts. Defendant testified that the basis for his plea was that he
suffered from “alcoholic blackouts” and allegedly had no memory of the alleged events from
which this case arose. The trial court sentenced defendant on August 23, 2002.
On October 3, 2002, claiming his plea was involuntary and due to ineffective assistance
of counsel, defendant filed his motion to withdraw his nolo contendere plea. The trial court
heard defendant’s motion on November 8, 2002. The trial court correctly ruled that defendant’s
plea was made voluntarily, and denied defendant’s motion. This Court granted leave to appeal
on August 4, 2003.5
Defendant says, erroneously, that his nolo contendere plea was made involuntarily
because of the ineffective assistance of counsel, and accordingly, that the trial court erred when it
denied defendant’s motion to withdraw his plea.
MCR 6.311 governs motions to withdraw pleas after sentencing. There is no absolute
right to withdraw a plea after a trial court accepts it. People v Haynes (After Remand), 221 Mich
App 551, 558; 562 NW2d 241 (1997), citing People v Eloby (After Remand), 215 Mich App 472,
474; 547 NW2d 48 (1996). “When a motion to withdraw a plea is made after sentencing, the
decision whether to grant it rests within the discretion of the trial court. That decision will not be
disturbed on appeal unless there is a clear abuse of discretion resulting in a miscarriage of
justice.” Id. (internal citations omitted).
We review a claim of ineffective assistance of counsel arising from a plea to determine
“whether the defendant’s plea was made voluntarily and understandingly.” Haynes (After
Remand), supra at 558. Defendant argues that the trial court should have held an evidentiary
hearing with respect to his claim that trial counsel provided materially incorrect advice that
induced defendant’s plea. However, with respect to claims of ineffective assistance of counsel
that arise from a defendant’s plea, the correct inquiry is not whether the advice was right or
3
MCL 750.520b(1)(a)
4
MCL 750.520d(1)(a)
5
People v Jimmie Dee Koby, unpublished order of the Court of Appeals, entered August 4, 2003
(Docket No. 247871)
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wrong, but rather, whether the advice “was within the range of competence demanded of
attorneys in criminal cases.” Id. Here, defendant contends that he agreed to his plea because
trial counsel gave him incorrect advice. Were we to agree, we would nevertheless be precluded,
under Haynes (After Remand), supra, from disturbing the trial court’s decision on that basis.
Furthermore, to prevail on a claim of ineffective assistance of counsel, a defendant must
show (1) that counsel’s performance fell below an objective standard of reasonableness under
prevailing professional norms, and (2) that counsel’s substandard performance substantially
prejudiced defendant. People v Sabin (On Remand), 242 Mich App 656, 659; 620 NW2d 19
(2000). There exists a “strong presumption” that counsel’s assistance was effective. Id. Here,
defendant fails to overcome this “strong presumption.” Defendant confessed to committing
several acts of criminal sexual conduct. When defendant entered his plea of nolo contendere to
one count of CSC-II, the prosecution dismissed all eight of the original counts against him,
including six counts of CSC-I that each carried a maximum possible penalty of life in prison.
CSC-II, on the other hand, carries a maximum sentence of fifteen years in prison. In light of this,
and defendant’s voluntary confession to police, we cannot conclude that defendant showed that
his trial counsel’s performance fell below an objective standard of reasonableness, or that
defendant was prejudiced by trial counsel’s conduct here. Indeed, it would appear that defense
counsel vigorously and effectively represented his client's interests.
Moreover, our review of the record shows no error in the plea proceeding. See MCR
6.311(B). After defendant’s trial counsel and the prosecution announced the terms of the plea
agreement, and the trial court accepted it, the trial court then placed defendant under oath and
examined him to determine whether he understood and voluntarily accepted the terms of the
agreement. Defendant expressed his satisfaction with his trial counsel and the advice he was
given. Defendant stated on the record that he understood that neither he, nor his counsel, nor the
prosecutor, had discussed a possible sentence with the trial court, that he could be sentenced to a
maximum of fifteen years in prison, that he was relinquishing his right to either a jury trial or a
bench trial, that he had the right to remain silent, to question witnesses, and to testify at trial, and
that his right to appeal would be limited Defendant testified that his plea was not induced by
threats and that there were no promises made to him to induce his plea save for the terms of the
plea bargain. Significantly, at his sentencing hearing, defendant again expressed his satisfaction
with his trial counsel and the advice he received.
Therefore, we hold that the trial court did not err when it denied defendant’s motions to
withdraw his plea and for an evidentiary hearing.
Affirmed.
/s/ Mark J. Cavanagh
/s/ Kathleen Jansen
/s/ Henry William Saad
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