Opinion
No. 351967
03-18-2021
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. CHRISTOPHER ADAM DAVIS, Defendant-Appellant.
If this opinion indicates that it is "FOR PUBLICATION," it is subject to revision until final publication in the Michigan Appeals Reports. UNPUBLISHED Wayne Circuit Court
LC No. 14-006047-01-FJ Before: LETICA, P.J., and CAVANAGH and FORT HOOD, JJ. PER CURIAM.
Defendant was charged with delivery or manufacture of a controlled substance less than 50 grams, MCL 333.7401(2)(a)(iv), and resisting and obstructing a police officer causing injury requiring medical care (R&O), MCL 750.81d(2). The prosecution offered to dismiss the 20-year felony drug charge in exchange for a guilty plea to the 4-year felony R&O charge, and defendant agreed. At sentencing, pursuant to defendant's request, the court granted defendant Holmes Youthful Trainee Act (HYTA), MCL 762.11 et seq., and placed him on probation. When defendant later violated his probation, the court revoked his HYTA status, entered a conviction, and sentenced him to 80 days in jail with credit for 50 days served. Four years later, defendant moved to vacate his conviction, contending that counsel who represented him at the plea hearing was ineffective for failing to recognize that the circuit court lacked jurisdiction over defendant, who was 16 years old when these offenses were committed, without an order from the family court waiving its jurisdiction. The circuit court denied defendant's motion. Defendant filed a delayed application for leave to appeal, which this Court granted. We reverse and remand for further proceedings consistent with this opinion.
People v Davis, unpublished order of the Court of Appeals, entered April 1, 2020 (Docket No. 351967).
I. BACKGROUND
This case arises from the failure of defendant's attorneys to notice that the circuit court lacked jurisdiction over defendant. Defendant, who was born in October 1996, was 16 years old when he committed the charged offenses in July 2013. By the time the prosecution charged defendant, approximately one year later, he was 17. Because defendant was a juvenile at the time he is alleged to have committed these offenses, the criminal division of the circuit court lacked jurisdiction over him absent a waiver from the family court division of the circuit court. MCL 712A.4; MCL 764.27 ("If a child 14 years of age of older is charged with a felony, the judge of probate, after investigation and examination and upon motion of the prosecuting attorney, may waive jurisdiction under [MCL 712A.4]. If jurisdiction is waived, the child may be tried in the court having general criminal jurisdiction of the offense.").
Throughout the process, four court-appointed attorneys represented defendant.
"In general, the family court has jurisdiction over juveniles within its judicial circuit that have 'violated any municipal ordinance or law of the state or of the United States.' " In re Lee, 282 Mich App 90, 93; 761 NW2d 432 (2009), citing MCL 712A.2(a)(1). This case does not involve automatic waiver of a specified juvenile violation. See MCL 600.606; MCL 764.1f(1).
The family court now has jurisdiction over these matters. MCL 600.1021(1)(e) and MCL 712A.1(1)(e).
In 2019, defendant's current counsel reviewed the available court records for the family court's waiver order, and found none. Notably, two items in the record suggested that the appropriate juvenile waiver process was followed. First, the case number includes the case-type code "FJ," which is used to designate "[j]uvenile offenses committed by juveniles and waived to the criminal division of the circuit court under MCR 3.950." Second, a notation in the register of actions reflects that the family division of the circuit court entered an order waiving its jurisdiction over defendant to the criminal division of the circuit court. In direct contrast to these items are the documents related to the district court proceedings, including a felony complaint and warrant. See MCL 712A.4(3) and (10) ("If the [family] court waives jurisdiction, the juvenile shall be arraigned on an information filed by the prosecutor in the court of general criminal jurisdiction. The probable cause finding under subsection (3) satisfies the requirements of, and is the equivalent of, the preliminary examination required by [MCL 766.1 to MCL 766.18].").
MCR 8.117; SCAO, Michigan Trial Court Records Management Standards—Case Type Codes (July 2019).
Digging deeper, counsel contacted the Prosecutor's Office to see whether it had a copy of the family court's order waiving its jurisdiction over defendant. After review, the prosecution reported that no waiver existed because it had never filed a petition in the family court requesting it to waive its jurisdiction. Therefore, both parties agree that defendant was mistakenly charged as an adult in the circuit court. When it is discovered that a defendant is charged as an adult, but "was under the age of 17 at the time of the commission of the offense," the law mandates that the circuit court "transfer the case without delay, together with all the papers, documents, and testimony connected with that case, to the family division of the circuit court . . . ." MCL 712A.3(1).
In this case, however, at defendant's 2014 arraignment in circuit court, the attorney standing in for defendant's court-appointed counsel did not object to the circuit court's jurisdiction. Instead, the parties agreed that defendant would plead guilty to felony R&O as an adult and the prosecution would dismiss the felony drug charge. Stand-in defense counsel also informed the court that defendant planned to request a deferral-and-dismissal under the HYTA at sentencing. The parties now agree that, if called as a witness, counsel would testify that he was unaware of the juvenile-jurisdiction issue, that he would have objected if he had been aware, and that he could conceive of no strategic rationale for his failure to object.
When defendant was sentenced, the HYTA allowed an individual to "plead[] guilty to a criminal offense, committed on or after the individual's seventeenth birthday but before his . . . twenty-first birthday," and allowed "the court having jurisdiction of the criminal offense," discretion to "consider and assign that individual to the status of youthful trainee" with the individual's consent. MCL 762.11(1).
But, pursuant to counsel's request in 2014, the circuit court exercised its discretion and sentenced defendant under the HYTA, imposing an 18-month probationary term with 47 days in jail and credit for time served. So long as defendant abided by his probation's terms, his R&O charge would be discharged and dismissed, leaving him with no adult criminal conviction on his record, MCL 762.14(2). At sentencing, the court informed defendant of his appellate rights and he did not appeal.
Ten months later, defendant was charged with and admitted to violating his probation by failing to report and testing positive for marijuana. Defendant pleaded guilty to those violations and requested immediate sentencing. The circuit court revoked defendant's HYTA status, entered an adult felony criminal conviction for R&O, and sentenced defendant to 80 days in jail, less credit for time served. The court did not inform defendant that he could appeal and no appeal was taken.
In 2017, the federal government charged defendant. In 2019, current defense counsel was appointed to represent defendant in the federal case. Counsel determined that, upon conviction of the federal criminal charges, defendant's federal sentencing guidelines recommendation would increase dramatically due to the nature of the adult felony conviction entered in this case. And, during a discussion about defendant's prior record, defendant advised current counsel that he had never been to "juvenile" (family) court on these state charges.
At counsel's request, the federal district court later appointed counsel to represent defendant in this ancillary matter to seek "to set aside" defendant's state R&O conviction.
As previously discussed, counsel reviewed the state court records without locating a family court order waiving jurisdiction over defendant. Counsel contacted the Prosecutor's Office, and, after a search, the prosecution revealed that it had never sought a waiver. This revelation contradicted the case-code designation and notation contained in the circuit court's register of actions, and suggests that, outside of the person(s) responsible for those actions, no one—not the courts, the prosecutors, or the four defense attorneys appointed to represent defendant—recognized that defendant was a juvenile when he committed these offenses.
In May of 2019, defendant moved to vacate his 2015 conviction because the circuit court lacked jurisdiction over defendant absent the family court's waiver. Counsel represented that the prosecution concurred in the requested relief.
The prosecution subsequently reversed course and opposed defendant's motion. The prosecution explained that, due to the passage of time, a motion for relief from judgment under MCR 6.500 et seq. was the only procedural vehicle available to defendant. Moreover, the sole basis for defendant's claim was that the circuit court lacked jurisdiction due to the failure to obtain a proper waiver from the family court. On that legal point, defendant could not prevail because our Supreme Court had ruled that a defendant's age was "a question of personal jurisdiction," and, therefore, waived by the defendant's guilty plea in circuit court. See People v Kiyoshk, 493 Mich 923; 825 NW2d 56 (2013).
Defendant then supplemented his motion to argue that defense counsel at the plea hearing was ineffective. More particularly, defendant asserted that counsel failed to object to the circuit court's jurisdiction and allowed a juvenile to plead guilty to committing a felony as an adult without the family court waiving its jurisdiction over him. Because counsel now admits that he was unaware of the jurisdictional issue and had no strategic reason not to object, defendant lost the opportunity to proceed through the juvenile court system and avoid the current adult felony conviction and its consequences.
In the prosecution's view, however, defendant failed to establish that counsel at the plea hearing had performed deficiently or that he was prejudiced. To the contrary, despite counsel's willingness to describe his performance as deficient, the standard was an objective one. Here, given defendant's juvenile record, defendant and his counsel could have reasonably chosen "to waive jurisdiction" to "receive the benefit of HYTA," namely, "no conviction." Because defendant could not show "that he would have received a more lenient sentence in [f]amily [c]ourt rather than [c]ircuit [c]ourt," "one could plausibly argue that defendant was better off in circuit court rather than family court."
At the hearing on defendant's motion, defendant conceded that a motion for relief from judgment was the appropriate means of challenging his conviction. Recognizing that he had the burden of demonstrating good cause and prejudice, defendant argued that counsel's admittedly deficient performance was good cause and that defendant's adult felony conviction prejudiced him as it resulted in increased federal sentencing guidelines. The prosecution reiterated that counsel's performance was neither deficient nor prejudicial because defendant would not have had a conviction at all if he had simply successfully completed HYTA.
The circuit court denied defendant's motion to vacate his adult felony conviction. The court reasoned that defendant waived the jurisdictional issue by pleading guilty. The court also concluded that "[t]here's no prejudice here, because . . . if he [had] stayed in [j]uvenile [c]ourt, he would have had a [j]uvenile conviction, but they can't get [HYTA] in [j]uvenile [court]." The court added that the opportunity to successfully complete HYTA provided defendant with the opportunity for a discharge and dismissal of the felony R&O charge rather than a conviction.
Indeed, "the only reason [defendant] got the conviction is 'cause he screwed up . . . on probation . . . ." Thus, the circuit court opined that defendant "was probably better off" charged as an adult with HYTA as a possibility.
Defendant appeals.
II. ISSUE PRESERVATION AND STANDARDS OF REVIEW
We review a circuit court's decision on a motion for relief from judgment for an abuse of discretion and its findings of fact for clear error. People v McSwain, 259 Mich App 654, 681; 676 NW2d 236 (2003). A trial court abuses its discretion when its decision "falls outside the range of reasonable and principled outcomes," People v Unger, 278 Mich App 210, 217; 749 NW2d 272 (2008), or it "makes an error of law," People v Giovannini, 271 Mich App 409, 417; 722 NW2d 237 (2006) (quotation marks and citation omitted). A court's "findings of fact are clearly erroneous if, after a review of the entire record, the appellate court is left with a definite and firm conviction that a mistake has been made." McSwain, 259 Mich App at 682 (quotation marks and citation omitted).
To preserve an ineffective-assistance-of-counsel claim for appellate review, a defendant should move for a new trial or an evidentiary hearing in the trial court. People v Sabin (On Second Remand), 242 Mich App 656, 658-659; 620 NW2d 19 (2000). Although defendant requested an evidentiary hearing as an alternative form of relief in the trial court, an evidentiary hearing was neither granted nor conducted; instead, the prosecution stipulated that defendant's counsel would now admit that "he did not recognize this error, and that he would have moved to dismiss . . . ." Therefore, in the prosecution's view, the need for a hearing was obviated. And this Court's review is limited to mistakes apparent on the record. People v Mack, 265 Mich App 122, 125; 695 NW2d 342 (2005).
III. REQUIREMENTS FOR RELIEF FROM JUDGMENT
When a defendant files a motion for relief from judgment under MCR 6.500, he has the burden of establishing that he is entitled to relief. See MCR 6.508(D); People v Swain, 288 Mich App 609, 630; 794 NW2d 92 (2010). MCR 6.508(D)(3) bars a court from granting the motion if a defendant "alleges grounds for relief, other than jurisdictional defects, which could have been raised on appeal from the conviction and sentence or in a prior motion under this subchapter . . . ." Swain, 288 Mich App at 630, quoting MCR 6.508(D)(3). A defendant can avoid application of this bar if he demonstrates (1) good cause for failure to raise the grounds for relief on appeal or in a prior motion; and (2) "actual prejudice from the alleged irregularities that support the claim for relief." Id., citing MCR 6.508(D)(3). When a plea is at issue, " 'actual prejudice' means that . . . the defect in the proceedings was such that it renders the plea an involuntary one to a degree that it would be manifestly unjust to allow the conviction to stand[.]" MCR 6.508(D)(3)(b)(ii). And, "in any case," a defendant may demonstrate actual prejudice by showing that "the irregularity was so offensive to the maintenance of a sound judicial process that the conviction should not be allowed to stand regardless of its effect on the outcome of the case." MCR 6.508(D)(3)(b)(iii).
On appeal, defendant does not contend he has grounds for relief based on a jurisdictional defect. As explained in Kiyoshk, 493 Mich at 923-924, "[w]hether [the] defendant was of an age that made circuit court jurisdiction appropriate is . . . a question of personal jurisdiction," not subject-matter jurisdiction, and " '[a] party may stipulate to, waive, or implicitly consent to personal jurisdiction.' [People v ]Lown, 488 Mich [242,] 268; 794 NW2d 9 [(2011)]." As both parties here recognize, defendant implicitly consented to the circuit court's jurisdiction when he pleaded guilty. Consequently, defendant does not contest the circuit court's jurisdiction on this ground. His ground for relief is an ineffective assistance of counsel claim.
Although the court rule contains no time limitation, our courts disfavor long-delayed motions seeking relief from judgment. People v Jackson, 465 Mich 390, 399 n 8; 633 NW2d 825 (2001). Even more disfavored are motions motivated by subsequent sentencing concerns, especially where competent counsel willfully manipulates the system to gain a future advantage. See People v Ward, 459 Mich 602, 604; 594 NW2d 47 (1999) ("[R]etained counsel, in the absence of the prosecutor, knowingly entered a woefully defective plea [to a drunk driving, second offense, charge] at arraignment without bringing the defects to the court's attention[, and,] [t]hus, . . . preserved the strategic possibility of setting aside the plea" after the defendant was charged with drunk driving, third offense).
IV. ANALYSIS
The circuit court concluded that, when viewed objectively, defense counsel's performance did not prejudice defendant because it afforded him an opportunity to avoid an adult felony conviction via successful completion under the HYTA, an opportunity he lacked had he stayed in the juvenile system. We disagree.
Both the Michigan and United States Constitutions require that a criminal defendant be provided effective assistance of counsel in his defense. US Const Am VI; Const 1963, art 1, § 20; People v Ackley, 497 Mich 381, 388; 870 NW2d 858 (2015). The right to counsel "extends to the plea-bargaining process." Lafler v Cooper, 566 US 156, 162; 132 S Ct 1376; 182 L Ed 2d 398 (2012). "A defendant seeking relief for ineffective assistance of counsel in this context must meet Strickland's familiar two-pronged standard by showing (1) that counsel's representation fell below an objective standard of reasonableness, and (2) that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." People v Douglas, 496 Mich 557, 591-592; 852 NW2d 587 (2014) (quotation marks and citation omitted).
Strickland v Washington, 466 US 668; 104 S Ct 2052; 80 L Ed 2d 674 (1984).
Defendant demonstrated that counsel's performance was objectively deficient. A counsel's "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that professional judgments support the limitations on investigation." Strickland v Washington, 466 US 668, 690-691; 104 S Ct 2052; 80 L Ed 2d 674 (1984). See also In re Ross, ___Mich ___; 951 NW2d 330 (2020) (quotation marks and citation omitted) ("Because reasonably effective assistance must be based on professional decisions and informed legal choices can be made only after investigation of options, counsel has a duty to conduct a reasonable investigation into a defendant's case."). Moreover, "[a]n attorney's ignorance of a point of law that is fundamental to his case combined with his failure to perform basic research on that point is a quintessential example of unreasonable performance under Strickland." Hinton v Alabama, 571 US 263, 274; 134 S Ct 1081; 188 L Ed 2d 1 (2014). Both defendant's age and the date of the offenses are evident from the circuit court's file. The parties also agree that defense counsel at the plea hearing would testify that he failed to recognize the jurisdictional issue and would have objected had he recognized it because there was no conceivable reason for him not to object. Thus, defendant has established that stand-in counsel's performance at the arraignment/plea hearing was objectively deficient.
Defendant has also established that counsel's deficient performance prejudiced him. When a defendant argues that his counsel has deficiently performed during a trial or sentencing, the defendant must demonstrate a "reasonable probability" that the outcome at the trial or sentencing would have been different but for counsel's error. See Strickland, 466 US at 694 (holding that there was no reasonable probability that the outcome of defendant's sentencing would be different). Stated otherwise, defendant must demonstrate that counsel's deficient performance led to a judicial proceeding of disputed reliability. See Lee v United States, ___ US ___; 137 S Ct 1958, 1964-1965; 198 L Ed 2d 476 (2017). But when a defendant argues that counsel's deficient performance caused him to plead guilty and forgo a judicial proceeding, like a trial or an appeal to which he has a right, there is no reliability to be disputed—the proceeding never took place. Id., citing Roe v Flores-Ortega, 528 US 470, 481; 120 S Ct 1029; 145 L Ed 2d 985 (2000). As a result, in this context, courts do not ask whether the outcome of the foregone proceeding would have been different from the outcome of defendant's guilty plea. Lee, ___ US at ___; 137 S Ct at 1965. Instead, courts ask whether there is a reasonable probability that defendant would have declined to have pleaded guilty and exercised his right to the forgone judicial proceeding but for counsel's error. See, e.g., id. at ___; 137 S Ct at 1966 (considering whether there was a reasonable probability the defendant would not have pleaded guilty and exercised his right to trial after being misadvised regarding the prospect of deportation as a result of the plea). In proving this, a defendant need not show that he would have received a more favorable outcome in the foregone proceeding. See id. at ___; 137 S Ct at 1967 (holding that the defendant had established reasonable probability that he would have exercised his right to trial even though he had little hope of succeeding at trial). See also Garza v Idaho, ___ US ___; 139 S Ct 738, 747; 203 L Ed 2d 77 (2019) (citation omitted) (" '[W]hen counsel's constitutionally deficient performance deprives a defendant of an appeal that he otherwise would have taken, the defendant has made out a successful ineffective assistance of counsel claim entitling him to an appeal,' with no need for a 'further showing' of his claims' merit, regardless of whether the defendant has signed an appeal waiver.").
In this case, defendant argues that counsel's failure to object caused him to forgo the mandatory transfer of the proceedings to the family court division, MCL 712A.3(1), and the opportunity to be tried in juvenile court. Predicting how the juvenile court would have exercised its discretion cannot be done with any degree of certainty. Accordingly, the prejudice standard employed in Lee, ___ US at ___;137 S Ct at 1966, should apply here. Defendant must show a reasonable probability that, had counsel objected to the circuit court's jurisdiction, defendant would have not pleaded guilty and would have insisted on being transferred to juvenile court. In this case, counsel admits that he would have objected had he recognized the jurisdictional issue. Having its attention drawn to defendant's age at the time of the commission of the offenses, the circuit court would have been required to transfer the case to the family court, MCL 712A.3(1), where, if the prosecution opted to pursue a waiver, defendant would have had the opportunity to challenge both probable cause and whether it was in his, as well as the public's, best interest to waive the family court's jurisdiction. MCL 712A.4.
The prosecution, however, suggests that counsel's performance was neither deficient nor prejudicial as counsel purposely failed to raise the jurisdictional issue in an effort to secure HYTA status for defendant. To accept this argument would require us to ignore counsel's admission and to invent reasons for his failure to object that he did not entertain. People v Gioglio (On Remand), 296 Mich App 12, 22; 815 NW2d 589 (2012) (Although "the inquiry is objective . . . [,] the reviewing court may not engage in a post hoc rationalization of the counsel's decision-making that contradicts the available evidence . . . ."), vacated in part on other grounds 493 Mich 864 (2012). It would also require us to suggest that defense counsel's performance may be objectively reasonable even though the success of his strategy depends on the court's disregarding the law. As we have already mentioned, HYTA status is available when "an individual pleads guilty to a criminal offense, committed on or after the individual's seventeenth birthday . . . ." MCL 762.11(1). Both parties recognize that defendant was 16 years old when he committed his offenses. Thus, defendant argues that the sentence imposed was illegal, while the prosecution argues that any illegality is irrelevant because defendant's successful completion would have conferred a benefit on him that it could not challenge. In making their respective arguments, the parties overlook that HYTA status is also available to a juvenile over the age of 14 charged with a felony over whom the family court has waived jurisdiction. MCL 762.15 ("This chapter also applies to an individual over 14 years of age whose jurisdiction has been waived under [MCL 764.27]."). Given the prosecution's concession that the family court never waived jurisdiction over defendant because it never requested such a waiver, defendant was ineligible for HYTA status.
Regardless, the prosecution asserts that the circuit court's lack of statutory authority to confer HYTA status upon defendant is irrelevant because "the People waived that concern by recommending that the [circuit court] consider HYTA as part of the plea agreement." Therefore, if defendant had successfully completed HYTA, the prosecution could not deny him its benefits—no conviction and a non-public record. In other words, viewed objectively, People v Head, 323 Mich App 526, 539; 917 NW2d 752 (2018), it was "reasonable for [defense counsel] to grade a plea under HYTA as a better deal than a[] felony adjudication placed on defendant's juvenile record."
In their respective briefs, the parties debate whether defendant would have had the opportunity to avoid a juvenile adjudication. Defendant asserts that such opportunities exist in the juvenile system under the Juvenile Diversion Act (JDA), MCL 722.821 et seq., the juvenile court's consent calendar, MCL 712A.2f, and the juvenile court's option to warn the juvenile and dismiss the petition after adjudication, MCL 712A.18(1)(a). The prosecution denies that such opportunities would have been available to defendant because the Wayne County Prosecutor's Office has developed its own diversion program, for which defendant did not qualify. The prosecution also contends that the JDA factors did not favor defendant, MCL 722.824; the statutory consent-calendar option was not available because the prosecution did not provide necessary consent for its use, MCL 712A.2f(2); and the warn-and-dismiss option available in the juvenile court, unlike a successfully completed HYTA, results in a recorded juvenile adjudication. Certain of the prosecution's assertions are not based on facts contained in the lower court record, and, therefore, we cannot consider them. People v Powell, 235 Mich App 557, 561 n 4; 599 NW2d 499 (1999).
In any event, defendant need not show that he would have received a more favorable outcome in the foregone proceeding. Garza, ___ US at ___;139 S Ct at 747750; Lee, ___ US at ___;137 S Ct at 19661967. The parties' debate also misses the broader point that the Legislature created and designed the juvenile court system to provide youth engaged in criminal activity with care and guidance. See MCL 712A.1(3). The law is clear that juvenile delinquency proceedings are not criminal proceedings. MCL 712A.1(2) ("Except as otherwise provided, proceedings under this chapter are not criminal proceedings."). See also In re Kerr, 323 Mich App 407, 414; 917 NW2d 408 (2018) (quotation marks and citation omitted) ("[J]uvenile proceedings are not considered to be criminal prosecutions . . . ."); In re Lee, 282 Mich App at 99 ("[J]uvenile delinquency proceedings are not adult criminal proceedings."). Instead, they are civil cases "with an emphasis on rehabilitation rather than retribution." Id. (quotation marks and citation omitted.) Consequently, it is selfevident that remaining under the protection afforded by the juvenile court system is in a minor's best interest.
Again, accepting this argument would require us to ignore counsel's admission and to invent reasons for his failure to object that he did not entertain. Gioglio, 296 Mich App at 22 (Although "the inquiry is objective . . . [,] the reviewing court may not engage in a post hoc rationalization of the counsel's decision-making that contradicts the available evidence . . . ."). The record reveals that the parties agreed that the prosecution would dismiss the drug felony charge in exchange for defendant's guilty plea to the felony R&O charge with the notation to "consider HYTA." HYTA was not guaranteed, meaning that defendant could have been left with an adult felony conviction and its consequences. Moreover, the prosecution did not recommend that the court accept HYTA, nor could it. Under the statute in effect at the time of defendant's plea, the trial court had discretion to confer HYTA status with the defendant's consent; the prosecutor's consent was not required. MCL 762.11(1). This is why defense counsel indicated his intention to request HYTA, "at the time of sentencing" only after defendant had pleaded guilty to R&O.
In addition, this Court has held that "[t]he authority to sentence an offender under the HYTA is jurisdictional," People v Martinez, 211 Mich App 147, 149; 525 NW2d 236 (1995), and that "[j]urisdictional defects may be raised at any time." Id. As already discussed, given defendant's age, the circuit court would not have had the legal authority to sentence defendant to HYTA without the family court's waiver. MCL 762.15 and MCL 764.27.
Even if we set aside this jurisdictional defect, we would conclude that defendant satisfied his burden of showing good cause and prejudice. MCR 6.508(D)(3)(a).
Good cause for failing to raise an issue on appeal or in an earlier motion may be established by showing ineffective assistance of counsel. People v Kimble, 470 Mich 305, 314; 684 NW2d 669 (2004). Typically, good cause is satisfied "by proving ineffective assistance of appellate counsel, pursuant to the standard set forth in Strickland . . . , or by showing that some external factor prevented counsel from previously raising the issue." People v Reed, 449 Mich 375, 378; 535 NW2d 496 (1995) (emphasis added). See also People v Gardner, 482 Mich 41, 49 n 11; 753 NW2d 78 (2008) ("A defendant may establish good cause for not raising an argument for relief sooner [under MCR 6.508(D)(3)] by showing that his appellate attorney rendered ineffective assistance by failing to raise the issue in a proper post-trial motion or first-tier appeal."). "External factors include 'showing that the factual or legal basis for a claim was not reasonably available to counsel, Reed v Ross, 468 US [1, 16; 104 S Ct 2901; 82 L Ed 2d 1 (1984),] or that 'some interference by officials,' Brown v Allen, 344 US 443, 486 [;73 S Ct 397; 97 L Ed 469] (1953), made compliance impractical . . . .' " Reed, 449 Mich at 385 n 8, quoting Murray v Carrier, 477 US 478; 106 S Ct 2639; 91 L Ed 2d 397 (1986). In certain circumstances, the ineffective assistance of trial counsel may also constitute good cause. Specifically, where trial counsel's ineffective assistance results in defendant's failure to raise, or inability to raise, an argument on direct appeal, such an action could establish the required "good cause" under MCR 6.508(D)(3)(a). Kimble, 470 Mich at 313-314.
In this case, stand-in counsel at the plea hearing concedes that he was unaware of the juvenile-jurisdiction issue, that he would have objected if he had been aware, and that he could conceive of no strategic rationale for his failure to object. At sentencing, as requested by defense counsel, the court granted HTYA. When the court later revoked HYTA, at the request of defendant's newly-appointed counsel, it proceeded to immediate sentencing, but failed to advise defendant that he could appeal. Notably, the case code and the register of actions inaccurately suggested that the family court division had entered an order waiving its jurisdiction over defendant to the circuit court. It was only current counsel's later conversation with defendant that led him to search through several court files and follow up with the Prosecutor's Office before the truth was revealed—no waiver order existed because the family court never held a waiver hearing. Instead, the prosecution had mistakenly charged defendant as though his crimes were committed when he was an adult. Given these circumstances, defendant has established good cause for his failure to previously raise this issue.
Likewise, defendant has demonstrated actual prejudice. For the reasons already discussed, defendant's plea was an involuntary one to a degree that it would be manifestly unjust to allow his conviction to stand. MCR 6.508(D)(3)(b)(ii).
We recognize that this Court previously determined the defendant in People v Kiyoshk (On Remand), unpublished per curiam opinion of the Court of Appeals, issued May 2, 2013 (Docket No. 295552), p 4, failed to demonstrate counsel was ineffective for failing to object to the circuit court's jurisdiction over two first-degree criminal sexual conduct (CSC) charges committed when the defendant was 13. Importantly, the defendant in Kiyoshk was also charged with two additional first-degree CSC charges subject to automatic waiver and the prosecution had agreed to a specific sentence after dismissing three of the four charges. Id. No such considerations are present here. Finally, our Supreme Court recently overruled our prior caselaw and made clear that a defendant who pleads guilty "does not waive his opportunity to attack the voluntary and intelligent character of the plea by arguing that his . . . counsel provided ineffective assistance during the plea bargaining process." People v Horton, 500 Mich 1034; 898 NW2d 590 (2017). --------
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
/s/ Anica Letica
/s/ Mark J. Cavanagh
/s/ Karen M. Fort Hood