Third Judicial (Wayne County) Circuit Court Judge Linda V. Parker recently held that a defendant received ineffective assistance of counsel during plea negotiations, due to counsel’s failure to advise of the requirement that the defendant register as a sex offender.

 The defendant pleaded nolo contendere to counts of assault with intent to commit sexual penetration and felonious assault.  Prior to sentencing, and after having registered pursuant to the Sex Offender Registration Act requirements, the defendant moved to withdraw the nolo pleas.  The trial court denied the motion and sentenced the defendant.

 Six months later, through appellate counsel, the defendant again moved to withdraw the nolo pleas, this time arguing that trial counsel was ineffective for failing to advise the defendant that sex offender registration was required.  The trial court reviewed the plea hearing transcript, found that the “plea hearing reflected a disjointed hearing” that could lead to miscommunication, and granted the plea withdrawal.  The prosecution appealed to the Court of Appeals, which remanded for a Ginther-hearing [People v. Ginther, 390 Mich. 436 (1973)].

 The defendant initially faced a charge of third-degree criminal sexual conduct, and sentencing as a fourth habitual offender, but counsel was able to get a final offer of the assault with intent to commit sexual penetration with a sentencing agreement of three to ten years.  At the hearing, the defendant testified that he would not have tendered the plea had he known of the registration requirement and that counsel did not tell him of the requirement on the day of the plea.  Counsel likely had, earlier in the plea negotiations -- which spanned several months -- informed the defendant of the registration requirement, but counsel testified he could not say whether or not he again relayed the information about the registration requirement at the time of the final offer.

 Judge Parker noted that the “terms of the plea agreement were fluid,” and that neither the court, nor trial counsel, nor the prosecutor expressly referenced the registration requirement on the record at the time of the plea.  Further, pursuant to People v. Fonville, 291 Mich. App. 363 (2011), an attorney is duty-bound to clearly advise a client of any sex offender registration requirement.

 Judge Parker concluded that absent the deficient performance the outcome of the proceedings would have been different, and the standards for relief found in Strickland [Strickland v. Washington, 466 U.S. 668 (1980)] and Fonville were met.

 The defendant in People v. David Paul Evans, Circuit Court No. 11-011821-01- FH; Court of Appeals No. 316859, was represented by SADO Assistant Defender Jacqueline C. Ouvry [a copy of the November 14, 2013, Opinion and Order is available at http://www.sado.org/content/pub/10256_ TC-Opinion--Order-from-Evid-Hrg-Nov-14-2013_26080_.pdf or from the CDRC].

by Neil Leithauser
Associate Editor
 

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