MSC nixes change to MCR 6.302

Judges advising defendants of their potential sentences at a plea hearing need not mention that the actual sentence may be longer than stated if a defendant is a habitual offender.

The Michigan Supreme Court yesterday declined to adopt an amendment to MCR 6.302, which would have imposed the requirement.

Under the habitual offender statute, MCL 769.13, prosecutors may advise defendants after a plea hearing that they intend to seek an enhanced sentence. This could create a discrepancy between the sentencing range announced at the plea hearing and the actual sentencing range that could be imposed.

The proposed amendment would have required judges to make defendants aware of that circumstance at the plea hearing.

The MSC turned down the proposed amendment on a 5-2 vote. Justices Michael Cavanagh and Marilyn Kelly would have adopted the amendment.

MSC seeks comment on proposed MCR amendments

Between now and the end of the year, the Michigan Suypreme Court is seeking comments on proposed amendments to the Michigan Court Rules.

A proposed amendment of MCR 3.211, ADM File No. 2004-55, according to a staff comment, “would eliminate the requirement that the Supreme Court approve changes to the Uniform Support Order forms. Without explicit approval required by the Supreme Court, the forms would be updated like other forms that are revised on a regular basis within the State Court Administrative Office.”

A proposed change to MCR 6.005, ADM File No. 1010-15, would impose a five-year record-retention requirement on criminal defense counsel.

From the staff comment: “This proposed amendment would clarify that trial counsel is required to make a defendant’s file available to an appellate lawyer, and would be required to retain the file for at least five years.

“This file was prompted by reports of appellate counsel having difficulty obtaining trial materials (especially video or audio materials that were not transcribed as part of the transcript). The five-year period mirrors the five-year retention period contained in MRPC 1.15(b)(2).”

Trial judges taking pleas in criminal cases would have to advise defendants about the possible consequences of prior felonies under a proposed amendment of MCR 6.302, ADM File No. 2010-02.

“This proposed amendment of MCR 6.302 would reinsert a requirement that a court advise a defendant who pleads guilty that the defendant’s maximum possible prison sentence may be longer than the maximum possible prison sentence for a particular offense if the defendant falls within the parameters of the habitual offender statute (MCL 769.13).

The statute allows a prosecutor to notify the defendant that the prosecutor intends to seek an enhanced sentence after the defendant pleads guilty. Thus, the sentence range given by the court may not take into account any sentence enhancement at the plea hearing.”

Comments on the proposals may be sent to the Supreme Court Clerk in writing or electronically by Jan. 1, 2012, at P.O. Box 30052, Lansing, MI 48909, or When filing a comment, please refer to the appropriate ADM file number.