In People v. Al-Shara, No. 320209, the Michigan Court of Appeals held that where a district court failed to comply with MCR 6.610(E)(4), by failing to confirm that the defendant understood the written waiver of rights executed pursuant to a nolo contender plea, the defendant was automatically entitled to withdraw his plea.
The defendant was charged with one count of domestic violence following an incident with his wife at a restaurant. He accepted a plea agreement, under which he would enter a nolo contendre plea to the charge in exchange for a sentence of one year of probation. The defendant signed a written waiver of rights, acknowledging that by entering the plea, he waived his constitutional rights, including the right to a jury trial, right to be presumed innocent, confrontation rights, right to testify or to remain silent, and the right to counsel. At the plea hearing, the court asked him if he was entering the plea voluntarily, but did not address whether he understood the waivers contained in the written document.
The Court of Appeals held that, under a substantial compliance standard of review, the defendant is entitled to automatically withdraw the plea if the court does not confirm that the defendant understood the terms of a written waiver of rights in compliance with MCR 6.610(E)(4). The court held that without a colloquy on the record, the intelligent waiver of those rights could not be presumed. Because the court totally omitted any discussion of the rights waiver under the written agreement, he was entitled to set aside his plea.
Justice Sawyer dissented, reasoning that the court’s failure to discuss the written waiver did not affect the defendant’s substantial rights because MCR 6.610(E)(7) provides a process by which a plea can be taken without a colloquy. As a result, the failure to engage in the colloquy should not entitle the defendant to set aside his plea.
