Failure to file a motion to withdraw a plea; MCR 6.310; Ineffective assistance of counsel in the plea-bargaining process; People v. Broyles; People v. Baham; People v. Anderson; People v. Pennington; Principle that a defendant pleading nolo contendere must enter an understanding, voluntary, & accurate plea; MCR 6.302(A); People v. Graves; People v. Peete; Effect of a defect in the plea-taking process; People v. Brown; Illusory bargain; People v. Pointer-Bey; People v. Williams; Sentence enhancement; MCL 769.13(1); People v. Bollinger; People v. Johnson; Harmless error; People v. Head; Ineffective assistance of counsel at sentencing; Glover v. United States; Failure to object to the scoring of OV 18; MCL 777.48; People v. McGraw

Holding that defendant’s plea bargain was illusory, and that defense counsel’s failure to object to the scoring of OV 18 constituted ineffective assistance, the court remanded. He pled nolo contendere to “resisting or obstructing a police officer and second-offense OWI for erratically operating a motor vehicle into opposing traffic on a highway, then being hostile with police officers while they were assisting in his blood draw under a search warrant.” The trial court sentenced him to concurrent terms of 32 days in jail and 18 months’ probation for each conviction, with credit for 32 days served. On appeal, the court agreed with him that the prosecution’s agreement not to sentence him as a fourth-offense habitual offender was meaningless, and thus, the plea bargain was illusory because the amended information was not timely filed. “The purported sole benefit of defendant’s plea agreement was the prosecution’s promise to dismiss the habitual-offender notice if defendant pleaded nolo contendere; however, that benefit was illusory because the prosecution was disallowed by law to seek sentence enhancement. Defendant was misinformed and did not receive the value he thought he was receiving.” In fact, he did not receive any “benefit from the bargain.” As such, his “plea of nolo contendere cannot be considered voluntarily and understandingly tendered.” Thus, the court concluded that he “did not receive the effective assistance of counsel in the plea-bargaining process.” It also agreed with his claim that defense counsel was ineffective for failing to object to the scoring of OV 18, noting that such an objection “would have been successful and defense counsel’s failure to oppose the score was so deficient that it fell below the objective standard of reasonableness.” Further, because an objection would have more likely than not resulted in 0 points being scored for OV 18, “reducing defendant’s OV score from 30 to 10 points and resulting in a reduction in the minimum sentencing guidelines range from 0 to 11 months to 0 to 9 months, . . . there is a reasonable probability that defense counsel’s deficient performance prejudiced defendant.”