People v. Cole

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion Robert P. Young, Jr. Michael F. Cavanagh
Marilyn Kelly
Stephen J. Markman
Diane M. Hathaway
Mary Beth Kelly
Brian K. Zahra

FILED MAY 25, 2012

STATE OF MICHIGAN

SUPREME COURT

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellant,

v No. 143046

DAVID MARK COLE,

Defendant-Appellee.

BEFORE THE ENTIRE BENCH

CAVANAGH, J.

This case requires us to determine whether MCR 6.302 and constitutional due

process require a trial court to inform a defendant pleading guilty or no contest to first-

degree criminal sexual conduct (CSC-I) or second-degree criminal sexual conduct (CSC-

II) that he or she will be sentenced to mandatory lifetime electronic monitoring, if

required by MCL 750.520b(2)(d) or MCL 750.520c(2)(b). We answer this question in

the affirmative and hold that mandatory lifetime electronic monitoring is part of the

sentence itself. Therefore, at the time a defendant enters a guilty or no-contest plea, the

trial court must inform the defendant if he or she will be subject to mandatory lifetime
electronic monitoring. In the absence of this information about a direct and automatic

consequence of a defendant’s decision to enter a plea and forgo his or her right to a trial,

no defendant could be said to have entered an understanding and voluntary plea.

Accordingly, we affirm the judgment of the Court of Appeals on this issue.1

I. FACTS AND PROCEEDINGS

Defendant was charged with two counts of CSC-II under MCL 750.520c(1)(a), for

sexual acts involving one of his stepdaughters, who was under the age of 13 at the time of

the offenses. Pursuant to an evaluation under People v Cobbs, 443 Mich 276; 505 NW2d

208 (1993), the trial court agreed not to exceed a five-year minimum term of

imprisonment for each charge, with the sentences to run concurrently.2 At the June 2,

2009 plea hearing, the prosecution read both CSC-II counts and described them as being

punishable by up to 15 years in prison and requiring mandatory testing for sexually

transmitted diseases. Defendant indicated to the trial court that he understood the CSC-II

charges and that he faced a maximum penalty of 15 years’ imprisonment. The trial court

1
We also granted leave to appeal to examine whether information about mandatory
lifetime electronic monitoring must be included in the terms of a sentence evaluation
rendered by a trial court under People v Cobbs, 443 Mich 276; 505 NW2d 208 (1993).
The Court of Appeals answered this question in the affirmative, as an alternative ground
for the panel’s decision to remand. Because of our resolution of the primary issue, we
need not decide at this time whether a trial court must advise a defendant that his
sentence will include mandatory lifetime electronic monitoring at the time the trial court
renders a sentence evaluation under Cobbs.
2
Defendant was also charged in a separate file with two counts of possessing child
sexually abusive material and two counts of using a computer to commit a crime after
police found child pornography on his computer. Defendant’s no-contest plea was to all
charges in both files, but only defendant’s CSC-II convictions are at issue in this appeal.

2
stated that it had agreed to a five-year concurrent cap on the minimum sentence, but that

it had made no other agreement with regard to the plea or the sentence. The trial court

never informed defendant that, if sentenced to prison, he would be subject to mandatory

lifetime electronic monitoring.

On June 30, 2009, the trial court imposed concurrent sentences of 5 to 15 years on

each count, in accordance with the Cobbs evaluation. In addition—and as required by

MCL 750.520c(2)(b)—the court ordered that defendant be placed on lifetime electronic

monitoring following his release from prison.3

Defendant moved to amend the judgment of sentence or permit withdrawal of his

plea, arguing in part that the failure to advise him of the mandatory penalty of lifetime

electronic monitoring rendered his plea involuntary. The trial court denied the motion,

and defendant sought leave to appeal. In a split opinion, the Court of Appeals reversed

the trial court and remanded to allow defendant the opportunity to withdraw his plea.

People v Cole, unpublished opinion per curiam of the Court of Appeals, issued March 15,

2011 (Docket No. 298893). The majority held that mandatory lifetime monitoring was

not a collateral consequence of the plea or sentence, but was part of the sentence itself.

We granted the prosecution’s application for leave to appeal. 490 Mich 869 (2011).

3
Subsection (2)(b) of the CSC-II statute, MCL 750.520c(2)(b), provides that, in addition
to the prescribed term of imprisonment, “the court shall sentence the defendant to lifetime
electronic monitoring under [MCL 750.520n] if the violation involved sexual contact
committed by an individual 17 years of age or older against an individual less than 13
years of age.” MCL 750.520n similarly provides that a defendant who commits CSC-I or
CSC-II against a person under age 13 when the defendant was 17 or older must be
sentenced to lifetime electronic monitoring and prescribes penalties for violations of the
monitoring program.

3
 II. STANDARD OF REVIEW AND RULES OF STATUTORY INTERPRETATION

A trial court’s decision on a motion to withdraw a plea is reviewed for an abuse of

discretion. People v Lang, 381 Mich 393, 398-399; 162 NW2d 143 (1968). The proper

interpretation and application of a court rule is a question of law that is reviewed de novo.

Haliw v Sterling Hts, 471 Mich 700, 704; 691 NW2d 753 (2005). To the extent that this

case implicates constitutional issues, they are likewise reviewed de novo. People v

Armstrong, 490 Mich 281, 289; 806 NW2d 676 (2011).

We also review de novo issues of statutory interpretation. Klooster v City of

Charlevoix, 488 Mich 289, 295; 795 NW2d 578 (2011). Our primary task when

interpreting statutes is to “give effect to the Legislature’s intent, focusing first on the

statute’s plain language.” Id. at 296. If the statutory language is unambiguous, we must

conclude that the Legislature “intended the meaning clearly expressed” and “[n]o further

judicial construction is required or permitted.” Sun Valley Foods Co v Ward, 460 Mich

230, 236; 596 NW2d 119 (1999).

III. ANALYSIS

A. MCR 6.302

Guilty- and no-contest-plea proceedings are governed by MCR 6.302.4 The first

sentence of subrule (A) provides that a “court may not accept a plea of guilty or nolo

4
MCR 6.302 provides, in relevant part:

(A) Plea Requirements. The court may not accept a plea of guilty or
nolo contendere unless it is convinced that the plea is understanding,
voluntary, and accurate. Before accepting a plea of guilty or nolo
contendere, the court must place the defendant or defendants under oath
and personally carry out subrules (B)-(E).

4
contendere unless it is convinced that the plea is understanding, voluntary, and accurate.”

MCR 6.302(A). The second sentence mandates that the court “place the defendant or

defendants under oath and personally carry out subrules (B)-(E).” Id. Subrules (B)

through (D), in turn, individually address the “understanding, voluntary, and accurate”

requirements of subrule (A), and subrule (E) addresses “Additional Inquiries,” including

the requirement that the court ask the attorneys “whether the court has complied with

subrules (B)-(D) . . . .”

The prosecution argues that a trial court’s compliance with subrules (B) through

(D) equates to full compliance with the “understanding, voluntary, and accurate”

requirements of subrule (A). In regard to whether a trial court must inform a defendant at

a plea hearing that he or she will be subject to mandatory lifetime electronic monitoring,

the prosecution argues that because subrule (B)(2) only requires that the court inform the

defendant of “the maximum possible prison sentence for the offense and any mandatory

minimum sentence required by law,” MCR 6.302(B)(2), the trial court did not err when it

informed defendant at the plea hearing of only the statutory maximum term of

(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:

* * *

(2) the maximum possible prison sentence for the offense and any
mandatory minimum sentence required by law . . . .

5
imprisonment and the minimum term the court had previously agreed to, yet did not

inform defendant that he would be subject to mandatory lifetime electronic monitoring.5

While we agree that MCR 6.302(B) through (E) constitute explicit requirements

imposed on a trial court conducting a plea hearing, the broader directive of MCR

6.302(A) that the plea must be “understanding, voluntary, and accurate” might, in a given

proceeding, encompass more than the explicit requirements of the remainder of the court

rule. Specifically, the “understanding, voluntary, and accurate” components of subrule

(A) are premised on the requirements of constitutional due process, which might not be

entirely satisfied by compliance with subrules (B) through (D). Therefore, regardless of

the explicit wording of the subrules, a court may be required by the Due Process Clause

of the Fourteenth Amendment to inform a defendant that mandatory lifetime electronic

monitoring is a consequence of his or her guilty or no-contest plea.

5
The prosecution reasonably argues that the use in MCR 6.302(B)(2) of the term
“maximum possible prison sentence” means that “any mandatory minimum sentence
required by law” refers only to a mandatory minimum prison sentence. Although it is not
necessary to conclusively opine on the prosecution’s argument, the mandatory lifetime
electronic monitoring requirement of the CSC-I and CSC-II statutes could also
reasonably be encompassed by the term “mandatory minimum sentence required by law.”
As explained further in this opinion, lifetime electronic monitoring is a “sentence”
because the Legislature intended it to be an additional punishment. And because a trial
court sentencing a defendant to prison has no discretion and must impose lifetime
monitoring when required by the CSC-I or CSC-II statutes, it is also “mandatory” and
“required by law.” Finally, by requiring that defendants be subject to electronic
monitoring for the rest of their lives, the electronic monitoring provisions include a
durational component consistent with the use in MCR 6.302(B)(2) of the term
“minimum.”

6
 B. THE REQUIREMENTS OF CONSTITUTIONAL DUE PROCESS

A no-contest or a guilty plea constitutes a waiver of several constitutional rights,

including the privilege against compulsory self-incrimination, the right to a trial by jury,

and the right to confront one’s accusers. Boykin v Alabama, 395 US 238, 243; 89 S Ct

1709; 23 L Ed 2d 274 (1969); People v Jaworski, 387 Mich 21, 28-29; 194 NW2d 868

(1972).6 For a plea to constitute an effective waiver of these rights, the Due Process

Clause of the Fourteenth Amendment requires that the plea be voluntary and knowing.

McCarthy v United States, 394 US 459, 466; 89 S Ct 1166; 22 L Ed 2d 418 (1969); see

also North Carolina v Alford, 400 US 25, 31; 91 S Ct 160; 27 L Ed 162 (1970) (noting

that a plea must be “a voluntary and intelligent choice among the alternative courses of

action open to the defendant”). In Brady v United States, 397 US 742, 748; 90 S Ct

1463; 25 L Ed 2d 747 (1970), the United States Supreme Court held that “[w]aivers of

constitutional rights not only must be voluntary but must be knowing, intelligent acts

done with sufficient awareness of the relevant circumstances and likely consequences.”

In assessing voluntariness, the Court stated that a defendant entering a plea must be “fully

aware of the direct consequences” of the plea. Id. at 755, quoting Shelton v United

States, 246 F2d 571, 572 n 2 (CA 5, 1957) (citation and quotation marks omitted).

6
No-contest pleas are essentially admissions of all the elements of the charged offense
and are treated the same as guilty pleas for purposes of the case in which the no-contest
plea is entered. See Lott v United States, 367 US 421, 426; 81 S Ct 1563; 6 L Ed 2d 940
(1961); People v New, 427 Mich 482, 493 n 10; 398 NW2d 358 (1986). Indeed, other
than the means by which a court determines the accuracy of the plea under subrule
(D)(2), MCR 6.302 recognizes no distinction between no-contest and guilty pleas for
purposes of the plea hearing. Therefore, for purposes of this opinion, we discuss no-
contest and guilty pleas synonymously.

7
 Given the difficulty of determining which of the numerous consequences of a

conviction are encompassed within the meaning of “direct consequences,” a distinction

has developed in the post-Brady caselaw between “direct” and “collateral” consequences

of a plea. See, e.g., Meyer v Branker, 506 F3d 358, 367-368 (CA 4, 2007) (“For a guilty

plea to be constitutionally valid, a defendant must be made aware of all the direct, but not

the collateral, consequences of his plea.”); Steele v Murphy, 365 F3d 14, 17 (CA 1,

2004). While courts have relied on different tests to distinguish direct from collateral

consequences, the prevailing distinction relied on by a majority of courts “turns on

whether the result represents a definite, immediate and largely automatic effect on the

range of the defendant’s punishment.” Cuthrell v Patuxent Institution Director, 475 F2d

1364, 1366 (CA 4, 1973); see also Roberts, The mythical divide between collateral and

direct consequences of criminal convictions: Involuntary commitment of “sexually

violent predators”, 93 Minn L R 670, 689-693 (2008) (discussing the three main tests

and listing relevant cases).

“The most obvious ‘direct consequence’ of a conviction is the penalty to be

imposed. It is, therefore, well-recognized that the defendant must be apprised of the

sentence that he will be forced to serve as the result of his guilty plea and conviction.”

Blankenship v State, 858 SW2d 897, 905 (Tenn, 1993). In determining whether a statute

imposes punishment or is nonpunitive, the United States Supreme Court has applied a

well-established framework:

If the intention of the legislature was to impose punishment, that
ends the inquiry. If, however, the intention was to enact a regulatory
scheme that is civil and nonpunitive, we must further examine whether the
statutory scheme is “‘so punitive either in purpose or effect as to negate
[the State’s] intention’ to deem it ‘civil.’” [Smith v Doe, 538 US 84, 92;

8
 123 S Ct 1140; 155 L Ed 2d 164 (2003) (alteration in original; citations
omitted).]

C. APPLICATION

While there is considerable debate about the exact placement of the dividing line

between the collateral and direct consequences of a plea, see Padilla v Kentucky, 559 US

___; 130 S Ct 1473, 1481 n 8; 176 L Ed 2d 284 (2010), we need not explore this oft-

nuanced distinction because we agree with the Court of Appeals that mandatory lifetime

electronic monitoring is part of the sentence itself. Because lifetime electronic

monitoring is part of the sentence itself, it is a direct consequence of a guilty or no-

contest plea to a charge of CSC-I—or CSC-II involving a victim under age 13 and a

defendant 17 or older—when the defendant is sentenced to prison.7

Our conclusion that mandatory lifetime electronic monitoring is part of the

sentence itself rests on the plain text of the relevant statutes. First, we note that our

7
As previously noted, MCL 750.520c(2)(b)—the provision setting forth the punishment
for CSC-II—only requires mandatory lifetime electronic monitoring when the victim is
under 13 years of age and the defendant is 17 or older. MCL 750.520b(2)(d)—the
provision setting forth the punishment for CSC-I—appears, however, to require
mandatory lifetime electronic monitoring for all defendants, regardless of the ages of the
victim and the defendant. We recognize that a conflict may exist between the text of
MCL 750.520b(2)(d) and MCL 750.520n(1), which arguably imposes the under-13 and
17-or-older age conditions on the lifetime electronic monitoring requirement of the CSC-
I statute. However, we need not resolve the possible conflict at this time because the case
before us does not involve a CSC-I charge and we recently remanded a case to the Court
of Appeals for consideration as on leave granted to address this precise issue. See People
v Sword, 490 Mich 871 (2011). It would be improvident for us to address this issue
without the benefit of the Court of Appeals’ resolution in Sword.

Pursuant to People v Kern, 288 Mich App 513, 522-523; 794 NW2d 362 (2010),
only defendants sentenced to prison—not those sentenced to probation or jail—are
subject to lifetime electronic monitoring.

9
Legislature chose to include the mandatory lifetime electronic monitoring requirement in

the penalty sections of the CSC-I and CSC-II statutes, and that both statutes can be found

in the Michigan Penal Code, which describes criminal offenses and prescribes penalties.

Second, both electronic-monitoring provisions provide that “the court shall

sentence the defendant to lifetime electronic monitoring . . . .” MCL 750.520b(2)(d) and

MCL 750.520c(2)(b) (emphasis added). The use of the directive “shall sentence”

indicates that the Legislature intended to make lifetime electronic monitoring part of the

sentence itself. Third, the CSC-II statute provides that the sentence of lifetime electronic

monitoring is “[i]n addition to the penalty specified in subdivision (a),” MCL

750.520c(2)(b), and the CSC-I statute provides similarly that lifetime electronic

monitoring is “[i]n addition to any other penalty imposed under subdivision (a) or (b),”

MCL 750.520b(2)(d). The language “in addition to” indicates that the Legislature

intended that lifetime electronic monitoring would itself be a penalty, in addition to the

term of imprisonment imposed by the court.

Finally, our conclusion that the Legislature intended to make lifetime electronic

monitoring a punishment and part of the sentence itself is reinforced by MCL

750.520n(1), which likewise includes the language “shall be sentenced,” and MCL

791.285(1) and (2), which use the language “individuals . . . who are sentenced . . . to

lifetime electronic monitoring” and “[a]n individual who is sentenced to lifetime

electronic monitoring . . . .”8

8
MCL 791.285 prescribes the duties of the Department of Corrections in establishing and
administering the lifetime electronic monitoring program.

10
 Accordingly, a plain reading of the relevant statutory text compels our conclusion

that the Legislature intended mandatory lifetime electronic monitoring to be an additional

punishment and part of the sentence itself when required by the CSC-I or CSC-II statutes.

Thus, under Smith’s framework, our analysis ends. Smith, 538 US at 92 (“If the intention

of the legislature was to impose punishment, that ends the inquiry.”). When a defendant

pleads guilty or no-contest and is sentenced to prison for a charge of CSC-I or CSC-II,

and the controlling statute mandates lifetime electronic monitoring, the sentence of

mandatory lifetime electronic monitoring constitutes a result of the plea that has “a

definite, immediate and largely automatic effect on the range of the defendant’s

punishment.” Cuthrell, 475 F2d at 1366.

We hold, therefore, that mandatory lifetime electronic monitoring is a direct

consequence of a plea. Accordingly, when the governing criminal statute mandates that a

trial court sentence a defendant to lifetime electronic monitoring, due process requires the

trial court to inform the defendant entering the plea that he or she will be subject to

mandatory lifetime electronic monitoring. And because MCR 6.302 is premised on

constitutional due-process requirements, a defendant who will be subject to mandatory

lifetime electronic monitoring must be so advised by the trial court at the time of the plea

hearing in order to satisfy the court rule’s requirement that the plea be understanding and

voluntary.

To hold otherwise would not only offend due process, but would be inconsonant

with the practical rationale underlying the requirement that a plea be knowing and

voluntary. When a defendant agrees to plead guilty, he or she is making a bargain, giving

up trial rights in exchange for some perceived benefit. In order for a defendant to

11
accurately assess the benefits of the bargain being considered, the defendant must be

aware of the immediate consequences that will flow directly from his or her decision.

Without information about a consequence of a sentence deemed by our Legislature to be

punishment, which here entails having to wear a device and be electronically tracked

“from the time the individual is released on parole or from prison until the time of the

individual’s death,” MCL 791.285(1)(a), it cannot be said that a defendant was aware of

the critical information necessary to assess the bargain being considered.

IV. CONCLUSION

We hold that mandatory lifetime electronic monitoring for convictions of CSC-I

and CSC-II is part of the sentence itself and is therefore a direct consequence of a

defendant’s guilty or no-contest plea. As a result, at the time a defendant enters a guilty

or no-contest plea, the trial court must inform the defendant if he or she will be subject to

lifetime electronic monitoring. Accordingly, we affirm the judgment of the Court of

Appeals and remand this case to the trial court to allow defendant the opportunity to

withdraw his plea.9 We do not retain jurisdiction.

Michael F. Cavanagh
Robert P. Young, Jr.
Marilyn Kelly
Stephen J. Markman
Diane M. Hathaway
Mary Beth Kelly
Brian K. Zahra

9
As stated in footnote 1 of this opinion, we decline to decide at this time whether
information about mandatory lifetime electronic monitoring must be included in the
terms of a sentence evaluation under Cobbs.

12