PEOPLE
v.
CARTER
Docket No. 98575.
Michigan Court of Appeals.
Decided July 23, 1991, at 9:30 A.M.Frank J. Kelley, Attorney General, Gay Secor Hardy, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of the Criminal Division, Research, Training, and Appeals, and Jan J. Raven and John P. Puleo, Assistant Prosecuting Attorneys, for the people.
Neil H. Fink and Mark J. Kriger, for the defendant.
Before: DANHOF, C.J., and CAVANAGH and W.R. BEASLEY,[*] JJ.
ON REHEARING
PER CURIAM.
On August 17, 1986, a young woman was killed and another young woman was seriously injured in a shooting incident in Detroit. Two defendants, Damion Todd and Vernard Carter, were convicted of first-degree murder, MCL 750.316; MSA 28.548, assault with intent to murder, MCL 750.83; MSA 28.278, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). A third defendant, Derrick McClure was convicted of second-degree murder, *461 MCL 750.317; MSA 28.549, assault with intent to commit great bodily harm, MCL 750.84; MSA 28.279, and felony-firearm, MCL 750.227b; MSA 28.424(2). The three defendants' cases were consolidated for our review.
On December 17, 1990, this Court issued a published opinion in which we affirmed the convictions of defendants Todd and McClure, but reversed defendant Carter's convictions. People v Todd, 186 Mich. App. 625; 465 NW2d 380 (1990). Regarding Carter, we found that he was denied the effective assistance of counsel because his defense counsel failed to convey to him an authorized plea offer. Id., pp 633-637. We therefore reversed defendant's convictions and remanded for a new trial. Id., pp 636-637. We have now granted rehearing on our own motion to decide whether our disposition of Carter's case was proper. On rehearing, we do not reverse defendant's convictions. Instead, we remand for an evidentiary hearing to determine whether defendant was prejudiced by his counsel's failures. We also adopt a different remedy to be afforded defendant should the trial court determine that he was prejudiced.
In our original opinion, we cited with approval a previous opinion of this Court, People v Williams, 171 Mich. App. 234, 241-242; 429 NW2d 649 (1988), lv den 432 Mich. 913 (1989), cert den 493 U.S. 956 (1989), where it was decided that an attorney's failure to advise his client of a plea bargain offer may be ineffective assistance of counsel. Todd, supra, p 634. On the basis of testimony of defendant's trial counsel at the posttrial Ginther[1] hearing in this case, we held that defendant was denied the effective assistance of counsel. Todd, pp 635-636. In addressing whether defendant was *462 prejudiced,[2] we said, "Since defendant received a conviction and sentence that was substantially greater than the plea offer, he was prejudiced by the error." Todd, p 636.
After additional circumspection, we now believe that our focus on the prejudice issue was misplaced. That is, even though defendant received a sentence that was longer than the one in the plea offer, he could not have been prejudiced unless he would have accepted the plea offer had it been conveyed. Therefore, we now remand to the trial court for an evidentiary hearing where the court is to determine whether defendant would have accepted the plea offer. If the court determines that defendant would not have accepted the offer, then defendant was not prejudiced and he is not entitled to relief on his ineffective assistance claim. If, however, the court determines that defendant would have accepted the plea offer, then defendant was prejudiced, and he would be entitled to relief.[3]
Regarding the form of relief to which defendant would be entitled, in our original opinion we simply reversed and remanded for a new trial. However, after reexamining our position on this point as well, we have determined that a simple reversal of defendant's convictions was not an appropriate remedy for the constitutional violation. See United States v Morrison, 449 U.S. 361, 364; 101 S. Ct. 665; *463 66 L. Ed. 2d 564 (1981), where the Court said that the remedy for a deprivation of the Sixth Amendment right to counsel generally should be "tailored to the injury suffered from the constitutional violation...." Because defendant was denied the opportunity to plead to a lesser charge, the appropriate remedy would be to give him that opportunity. See Lyles v State, 178 Ind App 398; 382 NE2d 991 (1978). Therefore, if the trial court determines that defendant was prejudiced, then his convictions are reversed and the trial court is directed to conduct a guilty plea hearing to permit him to plead guilty of second-degree murder and felony-firearm, with a minimum sentence of twenty-five years.
Remanded for an evidentiary hearing and additional proceedings consistent with this opinion. We do not retain jurisdiction.
NOTES
[*] Former Court of Appeals judge, sitting on the Court of Appeals by assignment.
[1] People v Ginther, 390 Mich. 436; 212 NW2d 922 (1973).
[2] It is now established that in order for a defendant to prevail on an ineffective assistance of counsel claim, the counsel's deficiency must be prejudicial to the defendant. People v Tommolino, 187 Mich. App. 14; 466 NW2d 315 (1991).
[3] We noted in our original opinion that there is some indication in the record that defendant may have attended a final pretrial conference at which the plea offer was mentioned. Todd, p 636. We do not believe that this fact, if established, would vitiate the deficiencies of defendant's trial counsel in failing to convey and discuss the plea offer. However, the court may consider this fact in determining whether defendant would have accepted the plea had it been conveyed by his trial counsel.