Motion to withdraw a no-contest plea after sentencing; MCR 6.310(C)(3); Ineffective assistance of counsel related to a plea; People v Corteway; Effect of defendant’s failure to move for an evidentiary hearing or for remand under MCR 7.211(C)(1)(a)(ii); Waiver of claim as to the failure to ask defendant during the plea-taking process about promises outside the plea agreement; MCR 6.302(C)(4)(a)

On remand from the Supreme Court, the court held that there was no mistake apparent from the record as to promises by defense counsel to defendant about his sentence that would give rise to ineffective assistance. And it found that he waived his claim as to the district court’s failure to ask him during the plea-taking process about promises outside the plea agreement by failing to raise it in either lower court. Thus, the court affirmed the circuit court’s order reversing the district court’s order granting his motion to withdraw his no-contest plea. He argued his “plea was not ‘knowingly, voluntarily, or intelligently’ made because he received ineffective assistance of counsel when defense counsel incorrectly assured [him] he would receive a delayed sentence under MCL 771.1.” The court found that it was, “at best, unclear whether the district court concluded that defendant was denied effective assistance of counsel.” While the court would ordinarily remand “to the district court for an evidentiary hearing to establish a factual basis whether defendant was denied effective assistance of counsel,” as he requested, it found this unwarranted here. This was “the second appeal regarding this issue—the first being the prosecution’s appeal to the circuit court. The basis of defendant’s motion to withdraw his plea was because [he] believed he was not afforded effective assistance of counsel. Yet, [he] did not move for an evidentiary hearing in either the district court or the circuit court. The circuit court even mentioned the lack of an evidentiary hearing in its analysis. Defendant should not benefit from his failure to move for an evidentiary hearing in the first instance.” Further, the court determined that “remand for an evidentiary hearing is unwarranted because defendant failed to move” for one under MCR 7.211(C)(1)(a)(ii). As to the exhibits he asked it to consider, the court noted its “function is not to act as fact-finder . . . and [it] may not consider an expanded record on appeal[.]” Thus, its review was limited to mistakes apparent on the record, which showed he “was provided an advice of rights, which he signed, and confirmed to the district court he understood. He assured the district court that his no-contest plea was made freely and voluntarily. Moreover, at sentencing, the prosecution indicated defendant would not receive a delayed sentence under MCL 771.1, and defendant did not object.”