Motion for relief from judgment; “Good cause”; MCR 6.508(D)(3); People v Killebrew; Ineffective assistance of appellate counsel

The court held that failure to establish good cause was fatal to defendant-Slusser’s claim under MCR 6.508(D)(3) and, thus, the trial court did not abuse its discretion in denying his motion for relief from judgment. He pled nolo contendere to AWIGBH or by strangulation, domestic violence, third offense, and being a fourth-offense habitual offender. The “prosecutor agreed to recommend that the circuit court sentence Slusser to no more than 60 months . . . .” The trial court ultimately sentenced him to 152 to 360 months. The court held that the trial court correctly ruled that he “failed to establish ‘good cause’ for relief from judgment on the ground that appellate counsel should have raised” the issue that Slusser’s plea was not knowing and voluntary because the trial court did not specifically inform him that his misconduct after his plea could invalidate his Killebrew agreement “in his first application for leave to appeal.” The record reflected “that the prosecutor raised the issue of Slusser making 1,211 phone calls to the victim, RM, at [the] first sentencing hearing and argued that the trial court should consider his misconduct at sentencing. The trial court listened to one of the phone calls that Slusser made, during which he spoke to RM for over 13 minutes in an attempt to persuade her to appear in court on his behalf to ask for a sentence that was less than the 60 months contemplated in his Killebrew agreement.” The court noted that “at the continuation of the sentencing hearing, defense counsel stated on the record that he wanted the trial court to abide by the sentence cap of 60 months’ imprisonment, notwithstanding Slusser’s conduct between his plea and sentencing.” Thus, it concluded that “the issue was raised on the record in the trial court that the prosecutor no longer recommended a minimum sentence of 60 months in prison and the trial court agreed that 60 months was an insufficient sentence in light of Slusser’s post-plea harassment of RM. At no time did Slusser or his attorney express an interest in withdrawing the plea and both spoke at length on the record at the sentencing hearing.” The court held that under “the circumstances, his appellate attorney’s decision to raise a claim with regard to the length of the trial court’s minimum sentence was logically sound, and so was the decision not to challenge Slusser’s plea and request a trial.” The failure to expose him “to a potentially longer sentence was presumably strategic and Slusser made no showing that appellate counsel’s failure to raise the issue fell below any prevailing professional norms since it would potentially expose [him] to a higher punishment ceiling and longer custodial time. Further, Slusser stated his decision on the record that he wanted to be sentenced by the trial court, which is directly contrary to his claim that he should have been allowed to withdraw his plea.”