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143046 - People v Cole (David)

The People of the State of Michigan,
Charles F. Justian
(Appeal from Ct of Appeals
(Muskegon – Marietti, W.)
David Mark Cole,
Anne M. Yantus


​David Mark Cole was charged with two counts of second-degree criminal sexual conduct involving his five-year-old stepdaughter. He entered a no contest plea, with a Cobbs evaluation for concurrent five-year minimum sentences. (Under People v Cobbs, 443 Mich 276 (1993), a defendant may agree to a guilty or no-contest plea after being informed by the judge of the likely sentence; the judge determines the sentence based on an evaluation of the facts in the case, the defendant’s criminal history, and other factors.) The judge sentenced Cole to concurrent terms of five to 15 years in prison, and also ordered Cole to be placed on lifetime electronic monitoring following his release from prison. MCL 750.520n(1) provides that a person over 17 years old convicted of second-degree criminal sexual conduct against someone under 13 “shall be sentenced” to lifetime electronic monitoring per MCL 791.285, which requires electronic monitoring to begin upon the offender’s release from prison. Cole filed a motion to amend his sentence or to withdraw his plea, arguing that the trial court’s failure to advise him of the mandatory penalty of lifetime electronic monitoring rendered his plea involuntary. The trial court denied the motion.

Cole appealed, arguing that his plea was invalid and that the trial court did not satisfy the requirements of MCR 6.302. Among other things, MCR 6.302 requires the trial court to “advise the defendant” of the “name of the offense to which the defendant is pleading,” along with the “maximum possible prison sentence for the offense and any mandatory minimum sentence required by law.” Cole argued that lifetime monitoring is a sentencing provision and that the court had to inform him of that aspect of his sentence at the plea hearing. Having failed to do so, the judge could not impose lifetime monitoring as a term of sentencing without first offering him the chance to withdraw his plea, Cole contended.

In a split unpublished per curiam opinion, the Court of Appeals agreed with the prosecutor that mandatory lifetime electronic monitoring was not a “minimum” sentence under MCR 6.302(B)(2). But, held the majority, a plea must still be “understanding” and “voluntary.” MCL 750.520n characterizes monitoring as a “sentence”; moreover, being on tether or an electronic monitoring device is generally regarded as an alternative to jail or prison, the majority said, so being on a tether was part of the sentence itself. Since Cole was not informed that lifetime electronic monitoring would be part of the sentence, the majority concluded, he could not have entered a knowing, intelligent, and understanding plea. The majority remanded the case to the trial court to allow Cole to withdraw his plea. The dissenting judge, while saying that the “better practice” would require a judge to “inform a defendant of every action the state will mandatorily take,” concluded that “the law plainly does not require such disclosure.” The judge went on to say that “Electronic tethering is not a prison sentence any more than is registering as a sex offender. There is no requirement for a trial court to discuss the ‘collateral consequences’ of a plea with a defendant, even though those consequences may be severe and mandatory.” The prosecutor appeals.