Defendant Timothy Horton was charged with breaking and entering with the intent to commit larceny as a fourth habitual offender. Horton agreed to plead no contest to the charge, in exchange for being charged as a second habitual offender. At the sentencing hearing, Horton moved to withdraw his plea, claiming that it was not freely, knowingly, and voluntarily made. His motion was denied and he was sentenced.
Mr.
Horton requested the appointment of appellate counsel who filed an Application
for Leave to Appeal and Motion to Remand. The brief and motion claimed Defendant’s
trial counsel was ineffective for:
(1) Failure to
make a motion to dismiss for violation of a speedy trial,
(2) Failure to
inform defendant if he pled no contest unconditionally without reserving the
right to appeal issues involving speedy trial violations by the trial court, it
constituted a plea waiver of these issues.
The
defendant argued that his plea was not knowing, intelligent, and voluntary and it
was error to deny his motion to withdraw his plea prior to sentencing. In
support of the Motion to Remand, Mr. Horton signed a sworn statement asserting
that his trial counsel never informed him that an unconditional no contest plea
would waive his rights to raise the violation of his speedy trial rights and
his rights to the effective assistance of counsel on appeal. In addition, Mr.
Horton would not have accepted the plea offer unless it was a conditional plea
offer that allowed him to raise the speedy trial issue on appeal. Absent a
conditional plea offer, Mr. Horton would have gone to trial.
The
Court of Appeals denied the motion to remand and denied leave to appeal. Mr.
Horton filed a pro per Application for Leave to Appeal to Supreme Court. On
December 9, 2015, the Supreme Court granted leave to appeal, People v Horton, 498 Mich 932, (2017)
(Docket 150815), on the following issues:
- Whether the defendant’s unconditional no contest plea waived his claim of ineffective assistance of trial counsel based on trial counsel’s failure to make a motion to dismiss for a 180-day rule violation or for constitutional speedy trial violations;
- Whether the defendant’s unconditional no contest plea waived his claim of ineffective assistance of trial counsel for trial counsel’s failure to inform him that his plea would waive his right to appeal on the basis of a 180- day rule violation or constitutional speedy trial violations; and
- Whether trial counsel’s failure to inform the defendant that his unconditional no contest plea would waive his right to appeal on the basis of a 180-day rule violation and constitutional speedy trial violation made defendant’s plea unknowing and involuntary.
The
Supreme Court, on July 25, 2017, after reviewing the briefs and oral arguments,
remanded the case to the Court
of Appeals for consideration. Stating that:
“A defendant who
has entered a plea does not waive his opportunity to attack the voluntary and
intelligent character of the plea by arguing that his or her counsel provided
ineffective assistance during the plea bargaining process.”
On
remand, the Court of Appeals was to consider: (1) whether a speedy-trial claim
is “nonjurisdictional” (2) if not, whether, by entering a plea of no-contest,
the defendant waived his right to argue that his counsel was ineffective for
failing to assert his constitutional right to a speedy trial before he entered
his plea, and (3) whether the defendant’s no-contest plea was involuntarily
entered based on his claim that his counsel provided ineffective assistance
when counsel failed to advise the defendant during the plea proceedings that he
would waive his right to raise his speedy-trial claim on appeal.
In
Horton’s brief on appeal, he asked the court to remand his case to the trial
court to allow him to withdraw his plea. The parties filed a joint motion to
remand the case to the trial court, which the Court of Appeals granted. This
case may be one to watch since the questions raised by the Supreme Court have
not been answered.
Labels: Appellate Counsel, ineffective assistance of counsel, Michigan, Oakland County, Speedy-trial Claim, Unconditional No Contest, Voluntariness of Plea
