Plea withdrawal; People v McIntosh; Inaccurate information at sentencing; Ineffective assistance of counsel; Failure to raise in the trial court the issues raised on appeal; Failure to object to allegedly inaccurate statements by a probation officer at sentencing; Kalamazoo Probation Enhancement Program (KPEP)

The court affirmed the trial court’s order denying defendant’s motion to withdraw her plea of guilty to a probation violation. She argued that she should be allowed “to withdraw her plea of guilty to a probation violation because the judge who presided over her probation revocation and sentencing hearing was not the judge who had imposed her original probation sentence.” The court noted that she did not object to Judge LaSata’s replacing Judge Schrock “at her combined probation revocation and sentencing hearing. Judge LaSata, relying on McIntosh and on defendant’s failure to object,” denied her motion to withdraw her plea. The court held that Judge LaSata “correctly decided the matter in accordance with McIntosh because a defendant will not be found to have been prejudiced by another judge’s presiding over probation revocation and sentencing when the defendant did not timely object.” Defendant also failed to show prejudice. She offered “no reason to doubt Judge LaSata’s assurances from the bench that he was familiar with the facts underlying defendant’s probation. Judge LaSata relied on information provided by a probation officer about the history of this case and the events underlying defendant’s probation terms. In denying defendant’s motion to withdraw her plea, Judge LaSata stated that he was ‘advised in the premises there were multiple violations in this instance.’” Defendant did not show “any lack of information bearing on Judge LaSata's sentencing decision.” Thus, the trial court “did not abuse its discretion by denying defendant’s motion to withdraw her plea.” Defendant also argued that the trial court erred by relying on inaccurate information at sentencing. She asserted that “a probation officer falsely stated at sentencing that defendant had left a substance-abuse treatment program, [KPEP] without permission because she was not allowed to smoke at the facility.” However, there “was no evidence that defendant’s sentence was based on any statement by a probation officer concerning why defendant had left KPEP, and defendant has failed to establish clear error in this regard.” Further, there was no evidence that the trial court considered an allegedly false statement by a probation officer at the probation violation hearing “when issuing the sentence. The trial court clearly stated that the sentence was based on defendant’s continued noncompliance with sobriety and the requirements of her probation.”