If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
May 20, 2021
Plaintiff-Appellee,
v No. 350451
Wayne Circuit Court
ROBERT LEE SHANNON, LC No. 18-008397-01-FH
Defendant-Appellant.
Before: K.F. KELLY, P.J., and SERVITTO and LETICA, JJ.
PER CURIAM.
Defendant appeals by delayed leave granted1 his guilty plea convictions of larceny from a
person, MCL 750.357, and domestic violence (third offense), MCL 750.81(5). We affirm.
The victim and defendant had been in a dating relationship since March of 2018 and were
in the process of breaking up when, on July 30, 2018, the victim went to her grandmother’s
apartment. When she arrived, defendant approached the victim in the parking lot of the apartment
complex. Defendant, who was apparently angry at her for telling her family members about a
previous instance in which defendant had assaulted her, grabbed her and punched her in the face
four times. Defendant then took the victim’s cell phone and car keys from her. The victim began
screaming for help and defendant drove away. The victim’s grandmother called the police and,
after speaking to the victim several hours later, they eventually arrested defendant. The victim did
not get her phone back and had to have her car re-keyed so she could drive it.
The matter proceeded to a bench trial. However, after the victim testified as the first
witness at trial, defense counsel advised the trial court that his client would be pleading guilty.
The court engaged in a plea colloquy with defendant and defendant, a fourth habitual offender
(MCL 769.12) thereafter tendered his guilty plea as part of a sentencing agreement, consistent with
1
People v Shannon, unpublished order of the Court of Appeals, entered September 24, 2020
(Docket No. 350451).
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the court’s Cobbs2 evaluation, of 12 months in the Wayne County Jail with no early release. On
March 4, 2019, the trial court sentenced defendant to 12 months in jail, to be served concurrently
with any other sentences, with no possibility of early release and with credit for 160 days already
served, consistent with the plea agreement and Cobbs evaluation. Defendant now appeals by
delayed leave granted, arguing that there were defects in the plea taking process such that he should
thus be allowed to withdraw his guilty plea.
To preserve a challenge to the validity of a guilty plea, a defendant must move to withdraw
the plea in the trial court. MCR 6.310(D); People v Armisted, 295 Mich App 32, 45-46; 811 NW2d
47 (2011). In People v Baham, 321 Mich App 228, 235; 909 NW2d 836 (2017), this Court stated
that a defendant’s challenge to the factual basis for his plea implicates the accuracy of his plea,
and his claim therefore falls squarely within the ambit of MCR 6.310(D). Because a motion to
withdraw a plea constitutes a prerequisite for challenging the accuracy of a plea and defendant has
not filed such a motion, our direct substantive review of this appellate argument is precluded under
MCR 6.310(D). Armisted, 295 Mich App at 48. Even if our review was not barred, after thorough
review of the record, we would conclude that the trial court did nor err in accepting defendant’s
plea.
Generally, this Court reviews de novo questions of constitutional law and the interpretation
of court rules. People v Al-Shara, 311 Mich App 560, 566-567; 876 NW2d 826 (2015). However,
unpreserved claims of constitutional error are reviewed for plain error. People v Carines, 460
Mich 750, 763-764; 597 NW2d 130 (1999). A defendant can avoid forfeiture of an unpreserved
issue if there was an error, that error was plain, and the error affected substantial rights, meaning
it affected the outcome of the proceeding. Id. at 763. If the defendant satisfies these three
requirements, it is then within the discretion of the appellate court to decide whether to reverse his
convictions. Id. “Reversal is warranted only when the plain, forfeited error resulted in the
conviction of an actually innocent defendant or when an error seriously affect[ed] the fairness,
integrity or public reputation of judicial proceedings independent of the defendant’s innocence.”
Id., quoting United States v Olano, 507 US 725, 736-737; 113 S Ct 1770; 123 L Ed 2d 508 (1993)
(quotation marks omitted) (alteration in original).
The only issue for our resolution is whether defendant should be permitted to withdraw his
plea. “A defendant seeking to withdraw his or her plea after sentencing must demonstrate a defect
in the plea-taking process.” People v Brown, 492 Mich 684, 693; 822 NW2d 208 (2012). Such
a defect occurs when a plea is not voluntarily and understandingly made. “For a plea to be
voluntary and understanding, a defendant must be aware of the rights he or she waives by entering
the plea as well as the direct consequences of the plea.” Al-Shara, 311 Mich App at 568. “[A]
plea that is not voluntary and understanding violates the state and federal Due Process Clauses.”
People v Brinkey, 327 Mich App 94, 99; 932 NW2d 232 (2019).
“Guilty- and no-contest-plea proceedings are governed by MCR 6.302.” Id. at 98
(quotation marks and citation omitted). MCR 6.302(A) provides that “[t]he court may not accept
2
People v Cobbs, 443 Mich 276; 505 NW2d 208 (1993).
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a plea of guilty or nolo contendere unless it is convinced that the plea is understanding, voluntary,
and accurate.” The court rule also states:
(B) An Understanding Plea. Speaking directly to the defendant or
defendants, the court must advise the defendant or defendants of the following and
determine that each 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;
(2) the maximum possible prison sentence for the offense and any
mandatory minimum sentence required by law . . .;
* * *
(E) Additional Inquiries. On completing the colloquy with the defendant,
the court must ask the prosecutor and the defendant’s lawyer whether either is
aware of any promises, threats, or inducements other than those already disclosed
on the record, and whether the court has complied with subrules (B)-(D). If it
appears to the court that it has failed to comply with subrules (B)-(D), the court
may not accept the defendant’s plea until the deficiency is corrected. [MCR
6.302(B) and (E).]
“Our Supreme Court has adopted a doctrine of substantial compliance, and whether a
particular departure from the requirements of MCR 6.302 justifies or requires reversal depends on
the nature of the noncompliance.” Brinkey, 327 Mich App at 98. “Under this doctrine, literal or
‘talismanic’ compliance with the court rules is not required.” Al-Shara, 311 Mich App at 572. In
sum, while strict compliance with the court rules is not required, “a defendant’s plea must always
be understanding, knowing, voluntary, and accurate.” Brinkey, 327 Mich App at 100.
Defendant raises three defects in his plea-taking process. First defendant asserts that the
trial court did not comply with MCR 6.301(B)(1)’s requirement of naming the offense defendant
was pleading guilty to because it did not state that defendant was pleading guilty as a fourth-
offense habitual offender. That is incorrect. The trial court advised defendant that he was pleading
guilty to larceny from the person and domestic violence (third offense), and that, as a “habitual
offender,” that carries a maximum sentence of life imprisonment. The claimed defect is essentially
that the court left out the word “fourth” in advising defendant that he was pleading guilty as a
fourth-offense habitual offender.
It is noteworthy that “[t]he habitual-offender statutes, MCL 769.10 et seq., provide
enhancement of a defendant’s sentence on the basis of prior felony convictions,” but they do not
create a substantive offense of their own. Brown, 492 Mich at 689. Thus, defendant’s argument
that he pleaded guilty to a “charge” not listed by the court lacks merit. And the trial court complied
with its obligation to advise a defendant of the maximum penalty he could receive if convicted
(MCR 6.302(B)(2); Brown, 492 Mich at 689), twice asking defendant if he understood his
maximum sentence could be life imprisonment. Both times defendant said he understood. Finally,
the settlement offer, notice of rights, and notice of acceptance form signed by defendant on the
day the plea was accepted includes “Habitual Offender – Fourth Notice” on it and the trial court
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referenced the form on the record. A court is permitted to rely on a notice of rights form in its
advice of rights to a pleading defendant if it references the form on the record, Al-Shara, 311 Mich
App at 576 n 9. While the court may have been more specific by using the word “fourth” when
explaining to defendant his maximum possible sentence, the trial court substantially complied with
MCR 6.302(B)(1) and the record does not reflect that defendant’s substantial rights were violated,
i.e., that the error affected the outcome of the proceeding.
Next, defendant argues that the court failed to follow MCR 6.302(E), which requires the
court to ask both counsels whether the court has complied with MCR 6.302(B) through (D) and if
they are “aware of any promises, threats, or inducements” not yet disclosed on the record. The
trial court did not explicitly ask those questions in the plea proceeding. It simply asked, “Are the
People and defense satisfied with the factual basis and advice of rights?” And both counsels said
they were satisfied. Defendant asserts that the court’s failure to ask whether either counsel was
aware of any promises, threats, or inducements for defendant to accept the plea that have not yet
been disclosed on the record violated MCR 6.302(E) and therefore constituted a defect in the plea-
taking process.
Notably, defendant does not claim that there were any promises, threats, or inducements
that led him to involuntarily take the plea agreement, nor does he claim the prosecutor or defense
counsel knew of any. In fact, defendant testified under oath at the plea hearing that there were not
any promises, threats, or inducements made to him. This Court has held that it would be against
public policy to allow a defendant who pleaded guilty to then testify as to being improperly coerced
into taking the plea deal because it would allow a defendant to potentially benefit from perjury at
either the plea hearing or the subsequent hearing. People v White, 307 Mich App 425, 430; 862
NW2d 1 (2014). Given the above, and taking all other facts into consideration, defendant has not
shown how the defect in the proceedings on this point prejudiced him or otherwise violated his
substantial rights.
Lastly, defendant claims there was a defect in the plea process because the trial court failed
to properly advise defendant on the issue of concurrent sentencing. When defendant asked during
the plea colloquy whether his sentence in this case would run concurrently to other sentences, the
following exchange took place:
The Court: It would be concurrent if you’re serving time for anything right
now, but it would be – And you’re gonna get credit for any time you’ve served on
this case.
[The Defendant]: I understand.
The Court: But going forward from there, you would have to spend 12
months in the Wayne County Jail.
The court’s response to defendant could appear unclear. On one hand, the court said the jail term
in this case “would be concurrent.” On the other hand, the court said “[b]ut going forward from
there, you would have to spend 12 months in the Wayne County Jail” adding, “[f]or [] the amount
that you serve on this case. Do you understand that?” These remarks sound as if the trial court
may be referring to consecutive sentencing. However, the court clearly stated at defendant’s
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March 4, 2019 sentencing hearing that it would adopt the Cobbs evaluation, that there would be
no early release, and defendant would serve “12 months Wayne County Jail [to] be concurrent
with any other time serving, except the 160 days he spent on this case. We’ll give him credit for
that specifically on this case.”
While defendant contends that the exchange regarding concurrent sentencing made during
his plea hearing should entitle him to withdraw his plea, he does not explain how he was prejudiced
by any alleged inaccuracy. Defendant was on bond for another felony when he committed the
felony in this case, and the trial court could have sentenced defendant to consecutive terms under
MCL 768.7b. Thus, while defendant may have not been accurately advised about the possibility
of consecutive sentencing, he received the benefit of concurrent sentencing. At most, any
inaccuracy in the explanation of concurrent sentencing led defendant to believe he was agreeing
to be sentenced to a longer term than he actually was. Thus, defendant has not shown plain error
affecting his substantial rights in any of the claimed defects to his plea-taking process and he is
not entitled to withdraw his plea.
Affirmed.
/s/ Kirsten Frank Kelly
/s/ Deborah A. Servitto
/s/ Anica Letica
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