MSC 158065 PEOPLE OF MI V KELLY CHRISTOPHER WARREN Opinion on Application - Remand to TC 04/29/2020

PEOPLE v WARREN
Docket No. 158065. Argued on application for leave to appeal November 6, 2019.
Decided April 29, 2020.
Kelly Warren pleaded guilty in the Mecosta Circuit Court to two separate charges of
operating a vehicle while intoxicated, third offense (OWI-3rd), MCL 257.625, in exchange for the
dismissal of other criminal charges against him and of the sentence enhancement to which he was
subject as a fourth-offense habitual offender, MCL 769.12(1)(b). At the plea hearing, the trial
court, Peter M. Jaklevic, J., noted on the record that each charge carried with it a maximum penalty
of five years’ imprisonment, but the court did not inform defendant that it had the discretionary
authority to sentence him to consecutive sentences under MCL 768.7b(2)(a) because he had
committed the second OWI-3rd charge while the first OWI-3rd charge was pending. The trial
court ultimately sentenced defendant to consecutive prison terms of 2 to 5 years, which subjected
defendant to a maximum of 10 years’ imprisonment. Defendant filed a timely motion to withdraw
his plea on the basis of the court’s failure to advise him of the possibility of consecutive sentencing.
The trial court denied the motion, and the Court of Appeals denied defendant’s delayed application
for leave to appeal. The Supreme Court then remanded the case to the Court of Appeals for
consideration as on leave granted with directions to compare People v Johnson, 413 Mich 487
(1982)—which held that the former court rule governing pleas, GCR 1963, 785.7, did not require
the trial court to advise a defendant of potential sentence consequences such as consecutive
sentencing—with People v Blanton, 317 Mich App 107 (2016), which held that the trial court was
required to inform the defendant that he was subject to a two-year mandatory consecutive sentence
for possessing a firearm during the commission of a felony (felony-firearm). 500 Mich 1056
(2017). On remand, the Court of Appeals, M. J. K ELLY and CAMERON, JJ. (GLEICHER, P.J.,
dissenting), affirmed defendant’s convictions and sentences in an unpublished per curiam opinion
issued May 17, 2018 (Docket No. 333997). The majority concluded that Michigan caselaw,
including Johnson and Blanton, was not dispositive of the issue and that neither the Michigan
Court Rules nor due process required the court to inform defendant that it had the discretion to
impose consecutive sentences. Defendant sought leave to appeal in the Supreme Court, which
ordered and heard oral argument on whether to grant the application or take other action. 503
Mich 988 (2019).
In an opinion by Justice M ARKMAN , joined by Chief Justice MCCORMACK and Justices
BERNSTEIN, CLEMENT , and CAVANAGH , the Supreme Court, in lieu of granting leave to appeal,
held:
Michigan Supreme Court
Lansing, Michigan
Syllabus Chief Justice:
Bridget M. McCormack
Chief Justice Pro Tem:
David F. Viviano
Justices:
Stephen J. Markman
Brian K. Zahra
Richard H. Bernstein
Elizabeth T. Clement
Megan K. Cavanagh
This syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
Reporter of Decisions:
Kathryn L. Loomis

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MCR 6.302(B)(2) requires a trial court, in cases in which such advice is relevant, to advise
a defendant of its discretionary consecutive-sentencing authority and the possible consequences of
that authority for the defendant’s sentence, because this authority clearly affects the defendant’s
“maximum possible prison sentence for the offense.” The trial court in this case erred when it
denied defendant’s motion to withdraw his plea because the court failed to apprise defendant of
this authority and its possible consequences for his sentence.
1. MCR 6.302(A) provides that a trial court may not accept a plea of guilty or nolo
contendere unless it is convinced that the plea is understanding, voluntary, and accurate. To ensure
that a defendant understands the consequences of his or her plea, MCR 6.302(B)(2) requires the
trial court to advise the defendant of the maximum possible prison sentence for the offense and
any mandatory minimum sentence required by law.
2. The Court of Appeals correctly concluded that no Michigan caselaw had resolved
whether MCR 6.302(B)(2) requires courts to inform defendants of discretionary consecutive-
sentencing authority before accepting a guilty or no-contest plea. Although Johnson observed that
the prior version of MCR 6.302 did not require trial courts to inform defendants of potential
sentence consequences such as consecutive sentencing, that statement was dictum. And while
Blanton held that trial courts must inform a defendant pleading guilty to felony-firearm that the
sentence would include a mandatory two-year term of imprisonment that would be served before
the sentences for the underlying substantive offenses, which would be served consecutively to the
felony-firearm sentence, this holding was based on the “mandatory minimum sentence” language
of MCR 6.302(B)(2) and not the “maximum possible prison sentence” language of the rule, and
therefore it was also not dispositive of the issue in this case.
3. The phrase “maximum possible prison sentence” within MCR 6.302(B)(2) is not defined
by the court rules. Considering the dictionary definitions of “maximum” and “possible,” MCR
6.302(B)(2) requires advising defendants of the maximum allowable prison sentence under the
law, as well as under the particular circumstances of the case, whether that is the actual sentence
that eventually transpires. The modifying phrase “for the offense” does not indicate that a court
must only advise defendants of the maximum possible prison sentence for each separate or discrete
offense because the “maximum possible prison sentence for the offense” is additionally and
materially affected by the possibility of consecutive sentencing; therefore, defendants must be
facilitated in fully understanding the potential consequences of the trial court’s discretionary
consecutive-sentencing authority. In this case, the trial court’s authority to impose a consecutive
sentence derived from MCL 768.7b, which effectively constitutes an enhanced punishment
designed to deter persons from committing additional crimes while other charges are already
pending by postponing the moment at which sentencing for one or more subsequent offenses will
commence and thereby increasing the total duration of potential incarceration. Thus, the fact of
consecutive sentencing constitutes highly relevant information that directly implicates the
“maximum possible prison sentence for the offense” under MCR 6.302(B)(2). Further, MCR
1.107 provides that words used in the singular also apply to the plural, where appropriate.
Accordingly, MCR 6.302(B)(2) is reasonably read as requiring trial courts to inform defendants
of “the maximum possible prison sentence for the offenses.” Therefore, when a trial court advises
a defendant of his or her “maximum possible prison sentence,” this must encompass not only the
“maximum possible prison sentence” for each individual “offense,” but also the “maximum

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possible prison sentence” for the conviction of “offenses” specifically as to which the trial court
possesses an authority to impose consecutive sentences. Defendant was instructed that each OWI-
3rd conviction carried a five-year maximum term of imprisonment, which, if imposed
concurrently, would amount to a maximum possible sentence of five years’ imprisonment.
However, because of the trial court’s discretionary consecutive-sentencing authority, defendant
actually faced, and received, a maximum possible sentence of 10 years’ imprisonment. This was
the “maximum possible prison sentence for the offenses” under the most reasonable understanding
of MCR 6.302(B)(2). Reading the word “sentence” in the plural, as well as the word “offense,”
would have led to the same conclusion, because where “sentences” are imposed, the possibility of
a consecutive sentence becomes a possibility affecting the defendant’s “maximum possible prison
sentence” on such multiple “sentences.” The Court’s interpretation of MCR 6.302(B)(2) was also
consistent with People v Brown, 492 Mich 684 (2012), which held that even though MCR 6.302(B)
did not expressly require trial courts to advise defendants of habitual-offender enhancements,
MCR 6.302(B)(2) nonetheless required courts to advise of the maximum possible prison sentence
with the habitual-offender enhancement because the enhanced maximum became the maximum
possible prison sentence for the principal offense.
Reversed and remanded for further proceedings.
Justice ZAHRA, joined by Justice VIVIANO, dissenting, stated that the plain language of
MCR 6.302(B) does not require trial courts to calculate a defendant’s potential aggregate
maximum possible prison sentence resulting from the imposition of consecutive sentences and that
there was nothing in the court rule to suggest that “sentence” should be read as “aggregate
sentence.” While he agreed that Michigan caselaw had not resolved this issue, he noted that
persuasive federal caselaw interpreting the analogous federal rule, which is broader in scope than
MCR 6.302(B), held that informing a defendant of mandatory consecutive sentencing was not
required. He also disagreed with the majority’s application of the number canon of construction
to MCR 6.302(B), noting that a consistent application would have required only that defendant be
advised of the maximum possible prison sentence for each of the two offenses to which he pleaded
guilty, which the trial court did. Justice ZAHRA further observed that the Supreme Court had
previously considered and rejected proposals to expressly require by court rule that trial courts
advise a defendant about the possibility of consecutive sentencing. He would have held that the
possibility of consecutive sentences pursuant to MCL 768.7b was a collateral rather than a direct
consequence of defendant’s guilty pleas because the trial court had discretion whether to impose
consecutive sentences and that due process therefore did not require that the trial court inform
defendant that he was subject to consecutive sentencing.
©2020 State of Michigan

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FILED April 29, 2020
S T A T E O F M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 158065
KELLY CHRISTOPHER WARREN,
Defendant-Appellant.
BEFORE THE ENTIRE BENCH
M ARKMAN, J.
At issue is whether, prior to accepting a guilty or no-contest plea, the trial court, in
cases in which such advice is relevant, is required to advise a defendant that the court
possesses discretionary consecutive-sentencing authority and to apprise the defendant as
to the potential consequences of that authority for his or her sentence. We conclude that
the trial court is required to do so under MCR 6.302(B)(2). As a result, the trial court here
erred when it denied defendant’s motion to withdraw his plea because the court failed to
apprise him of both this authority and its potential consequences. We therefore reverse the
Michigan Supreme Court
Lansing, Michigan
OPINION Chief Justice:
Bridget M. M cCormack
Chief Justice Pro Tem:
David F. Viviano
Justices:
Stephen J. Markman
Brian K. Zahra
Richard H. Bernstein
Elizabeth T. Clement
Megan K. Cavanagh

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judgment of the Court of Appeals and remand to the trial court to allow defendant to either
withdraw his guilty plea or to reaffirm this plea. See People v Brown, 492 Mich 684, 702;
822 NW2d 208 (2012).
I. FACTS & HISTORY
In November 2014, defendant drove while intoxicated and then did so again the
following summer while on bond for the first crime. In each case, he was charged, among
other crimes, with operating a vehicle while intoxicated, third offense (OWI-3rd), MCL
257.625, and the prosecutor provided notice that defendant was subject to a sentence
enhancement as a fourth-offense habitual offender, MCL 769.12(1)(b). Defendant agreed
to plead guilty to one count of OWI-3rd in each case in exchange for dismissal of the
remaining charges and the habitual-offender enhancement. At the plea hearing, after the
prosecutor informed the trial court of the agreement, the court asked the following:
The Court: All right. And each of the charges carries with it, absent
the habitual, a five year maximum charge; is that correct, folks?
[Prosecutor]: Yes.
[Defense Counsel]: Yes.
Thereafter, the court questioned defendant to ensure that his plea was understanding,
voluntary, and accurate under MCR 6.302. Yet at no point did the court inform defendant
that it possessed the discretionary authority to sentence him to consecutive sentences
because he had committed a felony (the second OWI-3rd charge) while disposition of
another felony (the first OWI-3rd charge) had been pending. MCL 768.7b(2)(a).
The trial court ultimately sentenced defendant to consecutive prison terms of 2 to 5
years. Because these sentences were to be served consecutively, defendant was subject to

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a maximum of 10 years’ imprisonment, twice the maximum of 5 years’ imprisonment had
the sentences been imposed concurrently. Defendant filed a timely motion to withdraw his
plea based upon the court’s failure to have advised him of the possibility of consecutive
sentencing. The trial court denied this motion and the Court of Appeals denied leave to
appeal. This Court then remanded to the Court of Appeals for consideration as on leave
granted with directions to compare People v Johnson, 413 Mich 487, 490; 320 NW2d 876
(1982) (holding that the former court rule governing pleas, GCR 1963, 785.7, did not
“require advice as to other potential sentence consequences such as consecutive
sentencing”) with People v Blanton, 317 Mich App 107, 119-120; 894 NW2d 613 (2016)
(holding that the court was required to inform the defendant that he was subject to a two-
year mandatory consecutive sentence for possessing a firearm during the commission of a
felony, or “felony-firearm”). People v Warren, 500 Mich 1056 (2017).
In a split decision, the Court of Appeals affirmed defendant’s convictions and
sentences. People v Warren, unpublished per curiam opinion of the Court of Appeals,
issued May 17, 2018 (Docket No. 333997). The majority concluded that Michigan
caselaw, including Johnson and Blanton, was not dispositive of the issue and that neither
the Michigan Court Rules nor due process required the court to inform defendant that it
possessed the discretion to impose consecutive sentences. Id. at 2-5. The dissent would
have held that “a possible consecutive sentence is a fact as important as the maximum
penalty for each charge, and therefore an integral component of a voluntary and

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understanding plea.” Id. at 1 (G LEICHER , J., dissenting). Defendant sought leave to appeal
in this Court and we heard oral argument on the application.1
II. STANDARD OF REVIEW
“This Court reviews for an abuse of discretion a trial court’s ruling on a motion to
withdraw a plea.” Brown, 492 Mich at 688. An abuse of discretion occurs when the
decision falls outside the range of principled outcomes. Woodard v Custer, 476 Mich 545,
557; 719 NW2d 842 (2006). The interpretation of court rules is reviewed de novo. People
v Lee, 489 Mich 289, 295; 803 NW2d 165 (2011).
III. ANALYSIS
A defendant has the “right to withdraw any plea until the court accepts it on the
record.” MCR 6.310(A). Once the trial court has accepted the plea, there is no longer any
absolute right to withdraw the plea. People v Gomer, 206 Mich App 55, 56; 520 NW2d
360 (1994). Following sentencing, a trial court may withdraw a guilty plea if “there was
an error in the plea proceeding that would entitle the defendant to have the plea set
1 According to the Offender Tracking Information System maintained by the Michigan
Department of Corrections (MDOC), defendant was paroled on January 7, 2020, after
serving four years of his sentence. However, because defendant is challenging his
underlying conviction, his parole does not affect our ability to decide the merits of this case
and afford a remedy for any alleged error. Additionally, defendant is under the supervision
of MDOC until January 2021 and any parole violation could result in the revocation of his
parole, which would then subject him to the remainder of his term of imprisonment. “An
issue is moot when an event occurs that renders it impossible for the reviewing court to
fashion a remedy to the controversy.” People v Cathey, 261 Mich App 506, 510; 681
NW2d 661 (2004). But an issue is not moot “if it will continue to affect a party in some
collateral way.” Id. Because defendant here is challenging his conviction and remains
subject to the supervision of MDOC, the instant issue is not moot, and we will decide its
merits despite the fact that defendant has recently been paroled.

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aside . . . .” MCR 6.310(C)(4). In other words, “[a] defendant seeking to withdraw his or
her plea after sentencing must demonstrate a defect in the plea-taking process.” Brown,
492 Mich at 693. Thus, the issue here is whether the trial court’s failure to inform
defendant of the possibility of consecutive sentences constitutes a sufficient defect in the
plea-taking process to require judicial relief. To determine whether there is such a defect,
we must first give meaning to the relevant court rule, MCR 6.302.
“The court may not accept a plea of guilty or nolo contendere unless it is convinced
that the plea is understanding, voluntary, and accurate.” MCR 6.302(A). “[T]his requires
a defendant to be informed of the consequences of his or her plea and, necessarily, the
resultant sentence.” Brown, 492 Mich at 693 (quotation marks and citation omitted). To
ensure that a defendant’s plea satisfies these requirements, the trial court, before accepting
such a plea, “must place the defendant or defendants under oath and personally carry out
subrules (B)–(E).” MCR 6.302(A). Specifically relevant to the instant case are the
requirements under Subrule (B), which addresses understanding pleas:
(B) An Understanding Plea. Speaking directly to the defendant or
defendants, the court must advise the defendant or defendants of the
following and determine that each defendant understands:
* * *
(2) the maximum possible prison sentence for the offense and any
mandatory minimum sentence required by law, including a requirement for
mandatory lifetime electronic monitoring under MCL 750.520b or
750.520c[.] [MCR 6.302(B)(2).]
Defendant argues that a trial court must advise persons in his circumstances when
the court possesses the discretion to impose consecutive sentences because such sentences

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affect the “maximum possible prison sentence.” MCR 6.302(B)(2). That is, if the trial
court only advised the defendant that he or she faced a maximum penalty of five years’
imprisonment, when, in fact, he or she was facing a maximum penalty of 10 years’
imprisonment as a consequence of a consecutive sentence, the trial court would have failed
to inform the defendant of the “maximum possible prison sentence” and thus the defendant
would not have fully understood the consequences of the plea.2 Conversely, the prosecutor
argues that the court rule does not explicitly require the trial court to inform defendants of
discretionary consecutive-sentencing authority. Rather, trial courts are only required to
advise a defendant of the “maximum possible prison sentence for the offense,” meaning
that they are only required to inform defendants of the maximum sentence for each separate
or discrete conviction. MCR 6.302(B)(2) (emphasis added). And in the instant case, this
was done: the trial court properly advised defendant that the maximum possible prison
sentence for each of his OWI-3rd convictions was five years’ imprisonment. To resolve
this matter, we must undertake two related analyses: first, we must determine the extent to
which prior caselaw governs the resolution of this issue and, second, if prior caselaw does
not do so, we must determine in the first instance the proper understanding of MCR
6.302(B)(2).
2 We are cognizant that the trial court informed defendant that he faced a maximum of five
years’ imprisonment on each of his OWI-3rd convictions and therefore that he could have
assumed that he was subject to the sum total of 10 years’ imprisonment. However, we are
not prepared to operate upon the assumption that defendant was properly informed here on
the basis that he believed, mistakenly, that as a general rule his sentences would be imposed
consecutively. See People v Ryan, 295 Mich App 388, 401; 819 NW2d 55 (2012) (“In
Michigan, concurrent sentencing is the norm, and a consecutive sentence may be imposed
only if specifically authorized by statute.”) (quotation marks and citation omitted).

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A. CASELAW
We agree with the Court of Appeals majority that Michigan caselaw has not
resolved the determinative question in this case: whether MCR 6.302(B)(2) requires courts
to inform defendants of discretionary consecutive-sentencing authority before accepting a
guilty or no-contest plea. We first address this Court’s decision in Johnson and then the
Court of Appeals’ decision in Blanton, because we specifically directed the Court of
Appeals on remand to assess these specific decisions to determine what relevance, if any,
these bear to the issue at hand.
In Johnson, the issue concerned whether the former court rule regarding pleas, GCR
1963, 785.7, required trial courts to inform defendants of the consequences of MCL
791.233b, then known as “Proposal B.” Johnson, 413 Mich at 488. Under this law, a
defendant was “not eligible for parole until he or she has served the minimum sentence
imposed by the court, undiminished by allowance for good time, special good time, or
special parole.” Id. at 488 n 1. We held that trial courts were not required to inform
defendants of the consequences of Proposal B because the court rule did not expressly
require trial courts to inform defendants of those consequences. Id. at 490. In so holding,
we also observed that the prior version of MCR 6.302 had not required trial courts to inform
defendants of “other potential sentence consequences such as consecutive sentencing.” Id.
However, the issue in dispute in Johnson did not generally involve the consequences of
consecutive sentencing, but rather only the specific consequences of Proposal B; thus, its
generalized statement on consecutive sentencing effectively constituted dictum because it
was unnecessary to the resolution of the issue in Johnson. See People v Peltola, 489 Mich

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174, 190 n 32; 803 NW2d 140 (2011). For that reason, we do not find Johnson dispositive
of the issue in the present case.
And in Blanton, the Court of Appeals held that trial courts must inform a defendant
pleading guilty to felony-firearm that “(1) he would be sentenced to a mandatory two-year
term of imprisonment, (2) this term of imprisonment would be served first, and (3) the
concurrent sentences for [the underlying substantive offenses] would be served
consecutively to the felony-firearm sentence.” Blanton, 317 Mich App at 120. The
rationale for this holding was that MCR 6.302(B)(2) required trial courts to advise
defendants of “any mandatory minimum sentence required by law,” and that “when a
defendant carries a firearm during the commission of a felony, he or she is subject to a
mandatory two-year term of imprisonment to be served ‘consecutively with and preceding
any term of imprisonment imposed’ for the underlying felony.” Blanton, 317 Mich App at
119-120 (citations and emphasis omitted). Blanton thus relied upon the “mandatory
minimum sentence” language of MCR 6.302(B)(2) and not the “maximum possible prison
sentence” language of the rule, and therefore is also not dispositive of the issue in this case,
which pertains only to whether discretionary consecutive sentencing implicates the
“maximum possible prison sentence for the offense.” MCR 6.302(B)(2).3
3 We recognize that Blanton also asserts, “[A]lthough not explicitly required by MCR
6.302(B), it is well settled that a trial court must inform the defendant of any ‘consecutive
and/or mandatory sentencing’ requirements.” Blanton, 317 Mich App at 119 (citation
omitted). However, because the issue in Blanton pertained to mandatory consecutive
sentencing for a felony-firearm conviction, we do not believe it referred clearly to the
matter of whether defendants must be advised as to discretionary consecutive-sentencing
authority. That said, Blanton is consistent with our ruling today that trial courts must advise
defendants, when applicable, of even discretionary authority in this regard.

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Concluding that neither Johnson nor Blanton clearly resolves the issue in dispute,
we turn to MCR 6.302(B)(2) to assess what course must be followed by the trial court
concerning communications to a defendant regarding its discretionary consecutive-
sentencing authority and the consequences of that authority for defendant’s ultimate
sentence.
B. MCR 6.302(B)(2)
When interpreting a court rule, we begin, of course, with its text, reading the
individual words and phrases in their context. People v Traver, 502 Mich 23, 31; 917
NW2d 260 (2018). In doing so, this Court “must give effect to every word, phrase, and
clause” in the court rule. People v Comer, 500 Mich 278, 287; 901 NW2d 553 (2017). We
examine first the phrase “maximum possible prison sentence” within MCR 6.302(B)(2).
The court rule does not specifically define this phrase or the individual words contained
within it, but this Court gives undefined terms their plain and ordinary meanings and will
often consult dictionary definitions in conferring such meaning. People v Duncan, 494
Mich 713, 723; 835 NW2d 399 (2013). “Maximum” means “an upper limit allowed (as
by a legal authority) or allowable (as by the circumstances of a particular case).” Merriam-
Webster’s Collegiate Dictionary (11th ed). And “possible” describes “something that may
or may not occur.” Id. Therefore, MCR 6.302(B)(2) requires advising defendants of the
maximum allowable prison sentence under the law, as well as under the particular
circumstances of the case, whether that is the actual sentence that eventually transpires.
This phrase is further modified by the prepositional phrase “for the offense.” MCR
6.302(B)(2). The prosecutor argues, and the dissent would conclude, that this qualifying

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language indicates that a court must only advise defendants of the maximum possible
prison sentence for each separate or discrete offense-- in this case, five years’ imprisonment
for each of two OWI-3rd convictions. Respectfully, we do not construe this language so
narrowly, but in what we view to be a more reasonable fashion. We believe that the
“maximum possible prison sentence for the offense” is additionally and materially affected
by the possibility of consecutive sentencing and therefore that defendants must be
facilitated in fully understanding the potential consequences of the trial court’s
discretionary consecutive-sentencing authority. We believe so for the following reasons:
First, in addition to understanding the possible duration of each sentence for
multiple offenses, the defendant must also understand the possibility that the sentence for
an offense may not commence until after the defendant has served one or more underlying
sentences. This comprehension is critical to a pleading individual fully understanding the
“maximum possible prison sentence for the offense.” MCR 6.302(B)(2). Consecutive
sentences are “served in sequence,” while concurrent sentences are “served
simultaneously.” Black’s Law Dictionary (11th ed) (emphasis added). As a result, the fact
of consecutive-sentencing authority is as integral to a fully understanding plea as the facts
of the sheer duration of potential sentences for each offense viewed in splendid isolation.
For when the trial court possesses such authority, the defendant’s sentences are neither
viewed nor imposed in isolation, and for the defendant personally, understanding fully the
consequences and implications of a plea is not some academic exercise but an intensely
practical and life-altering exercise by which he or she might reasonably compare the
wisdom of a guilty or no-contest plea with the merits of proceeding to trial. Both of these
considerations-- the possible duration of each sentence and the possibility that one or more

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of these sentences will not commence immediately but only after another has been served--
will in the harshest reality determine the defendant’s “maximum possible prison sentence
for the offense,” and defendants are entitled to be made fully aware of this reality so that
they might enter into a genuinely “understanding, voluntary, and accurate” plea.
In the instant case, the trial court’s authority to impose a consecutive sentence
derives from MCL 768.7b, which states in relevant part:
(2) Beginning January 1, 1992, if a person who has been charged with
a felony, pending the disposition of the charge, commits a subsequent offense
that is a felony, upon conviction of the subsequent offense or acceptance of
a plea of guilty, guilty but mentally ill, or nolo contendere to the subsequent
offense, the following shall apply:
(a) Unless the subsequent offense is a major controlled substance
offense, the sentences imposed for the prior charged offense and the
subsequent offense may run consecutively. [MCL 768.7b(2)(a).]
The effect of MCL 768.7b thus is to postpone the moment at which sentencing for one or
more “subsequent offense[s]” will commence, and “[t]he purpose of the statute is to deter
persons accused of one crime from committing others by removing the security of
concurrent sentences should conviction result on any or all of the crimes so committed.”
People v Bonner, 49 Mich App 153, 158; 211 NW2d 542 (1973). Consequently, the statute
differentiates between two classes of persons: “those who have committed subsequent
felonies while on bond and those who have not . . . .” Id. And the Legislature has thereby
provided “different punishments between those classes” wherein the defendant who has
committed a felony while on bond is subject to a greater punishment than the defendant
who has not. Id.

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Hence, while consecutive sentencing does not increase the maximum duration of a
sentence for any single offense, the postponement of one or more of the sentences
effectively constitutes an enhanced punishment designed to deter persons from committing
additional crimes while other charges are already pending by increasing the total duration
of potential incarceration. In the fullest light of reality, defendant’s “maximum possible
prison sentence” will be determined by both the durations of the sentences for each offense
and their susceptibility to consecutive sentencing. We find it critical then that a defendant,
in order to fully understand the consequences of a plea, and to be fully cognizant of the
“maximum possible prison sentence” on each offense, be apprised that a sentence for a
subsequent offense to which he or she is pleading guilty may not proceed immediately but
rather may be delayed-- this as a part of a purposeful legislative design to punish the
defendant with greater severity. In this manner, the fact of consecutive sentencing
constitutes highly relevant information that directly implicates the “maximum possible
prison sentence for the offense” under MCR 6.302(B)(2).4
Second, our court rules require that “[w]ords used in the singular also apply to the
plural, where appropriate.” MCR 1.107.5 Accordingly, this Court must also reasonably
read MCR 6.302(B)(2) as requiring trial courts to inform defendants of “the maximum
4 This opinion should not be understood as requiring trial courts to advise defendants of
precisely when a consecutive sentence will commence. Rather, it is sufficient that
defendants be reasonably informed that possible consecutive sentences will have to be
served sequentially, i.e., that such sentences will not begin until after other sentences have
been served.
5 In a similar vein, MCL 8.3b states: “Every word importing the singular number only may
extend to and embrace the plural number, and every word importing the plural number may
be applied and limited to the singular number.”

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possible prison sentence for the offenses.” We believe it is “appropriate” to consider
“offense” in both the singular and the plural because it is frequently the case that a criminal
defendant will be convicted of more than a single crime and it is reasonable that MCR
6.302(B)(2) would be understood as affording its myriad protections to all criminal
defendants, not merely to those convicted of a single offense, for such a distinction would
be odd (if not unprecedented) within our criminal rules and, specifically with regard to
MCR 6.302(B)(2), lacking in any apparent purpose. Thus, we conclude that when a trial
court advises a defendant of his or her “maximum possible prison sentence,” this must
encompass not only the “maximum possible prison sentence” for each individual
“offense,” but also the “maximum possible prison sentence” for the conviction of
“offenses” specifically as to which the trial court possesses an authority to impose
consecutive sentences.6
Defendant here was instructed that each OWI-3rd conviction carried a five-year
maximum term of imprisonment, which, if imposed concurrently, would amount to a
maximum possible sentence of five years’ imprisonment. However, because of the trial
court’s discretionary consecutive-sentencing authority, defendant actually faced, and
received, a maximum possible sentence of 10 years’ imprisonment. This was, in fact, the
“maximum possible prison sentence for the offenses.” A trial court’s failure to advise a
6 See e.g., Commonwealth v Persinger, 532 Pa 317, 323; 615 A2d 1305 (1992) (“In order
to understand the consequences of his plea it is clear that a defendant must be informed of
the maximum punishment that might be imposed for his conduct. To hold that the term
‘maximum’ does not include the total possible aggregate sentence is clearly incorrect.”)
(citation omitted); State v Ricks, 53 Ohio App 2d 244, 246-247; 372 NE2d 1369 (1977)
(holding that in order for a defendant to understand the maximum penalty, he or she must
understand “whether defendant is eligible for consecutive or concurrent sentences”).

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14
defendant of possible consecutive sentencing in the course of apprising him or her of a
“maximum possible prison sentence” disregards the reality that the defendant may face a
far-lengthier prison sentence-- a reality that we believe is anticipated, and accommodated,
by the most reasonable understanding of MCR 6.302(B)(2).
The dissent maintains that our use of this canon of interpretation is inconsistent
because we read only “offense” in the plural while maintaining the singular use of the term
“sentence.” However, we see no such inconsistency, as certainly a defendant must not only
understand the maximum possible “sentence” for each separate offense, but also that for
the range of “offenses” of which he or she has been convicted, some of which may be
viewed by the law as interconnected in a way that carries independent sentencing
consequences. Then, and only then, can a defendant fully apprehend the true maximum
term of incarceration that he or she faces, 7 i.e., the term of incarceration from its starting
date to its release date, i.e., the period during which by force of law a person who has
breached the strictures of that law will be segregated from free society and deprived of his
or her God-given liberty.8 That said, our application of the singular/plural canon of
7 A defendant’s maximum term of incarceration is, in other words, his or her “aggregate
sentence,” which is defined as “[t]he total sentence imposed for multiple convictions,
reflecting appropriate calculations for consecutive as opposed to cumulative periods . . . .”
Black’s Law Dictionary (11th ed).
8 The Attorney General, appearing as amicus curiae on behalf of defendant, asserted at oral
argument that
no single variable of a sentence [is] more important to a criminal defendant
than how much time he will serve. It’s more important than knowing if
you’re going to be on a sex offenders’ registry or whether . . . you are
pleading to a felony or a misdemeanor, or whether or not that crime may be
expungable at some period; maybe later on those things will become

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15
interpretation is not grounded on “advanc[ing] a policy goal,” as asserted by the dissent,
but on the specific language of MCR 6.302(B)(2) requiring that a defendant understand the
“maximum possible prison sentence for the offenses.” The dissent avers that consistency
and the use of “common sense” in applying this canon would require both “sentence” and
“offense” to be read either in the plural or the singular; in other words, that these terms
must travel together. But that is not what is stated in the canon, and for good reason.
Rather, the dissent’s understanding gives minimal consideration to the guidance of the
canon that it should be applied “where appropriate.” MCR 1.107. We believe it is
altogether “appropriate” here to read only “offense” in the plural under MCR 6.302(B)(2),
as this optimally ensures that a defendant will come to understand the “maximum possible
prison sentence” implicated by a guilty or no-contest plea. This purpose, in our judgment,
defines the obvious and fundamental purpose served by MCR 6.302(B)(2), and there is no
obvious rationale for limiting the purview of this rule to circumstances in which a
defendant has been convicted of only a single offense or even of multiple offenses for
which there is no possibility of consecutive sentencing. Thus, while professing to rely
upon “common sense” in giving meaning to the court rule, the dissent not only errs in its
significant. But at the very moment that an individual is deciding whether or
not to enter that plea, all they really care about is how much time am I going
to do.
And despite the dissent’s assertion that the Attorney General argues only that “due process
requires us to amend our court rule,” her position at oral argument was to the contrary.
Although she did urge the Court to amend its rule to clarify the trial court’s consecutive-
sentencing obligation, the Attorney General nonetheless adopted the position that MCR
6.302(B)(2), as it currently reads, required the trial court here to advise defendant of the
court’s discretionary consecutive-sentencing authority, apart from any “due process”
requirement, precisely because the consequences of consecutive sentencing affect “the
actual term of years [a defendant] receive[s].”

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16
construction of the rule, but fails to account for the most fundamentally “common sense”
aspect of the plea itself-- that the pleading party accurately comprehend the maximum
possible prison sentence to which he or she is pleading. In sum, we do not believe that the
dissent’s interpretation of the singular and plural terms of MCR 6.302(B)(2) constitutes the
most reasonable understanding of its language, the best discernment of the intentions of its
framers, or the most appropriate application of the singular/plural canon, and therefore it
is “appropriate” that we give the meaning to the rule that we do.
Even, however, if we read “sentence” in the plural as the dissent would have us do,
we reach the same conclusion. That is, if a defendant must be apprised of the “maximum
possible prison sentences for the offenses,” the trial court would still be required to inform
the defendant of the court’s discretionary consecutive-sentencing authority because where
“sentences” are imposed, and indeed only where “sentences” are imposed, the possibility
of a consecutive sentence becomes a possibility affecting the defendant’s “maximum
possible prison sentence” on such multiple “sentences.” And thus to ensure the defendant’s
full understanding of the plea, he or she must be apprised of the court’s discretionary
consecutive-sentencing authority.9
9 The dissent asserts that our “alternative analysis” concerning the singular/plural canon,
i.e., where we read both “sentence” and “offense” in the plural, “fails to consider the entire
context of MCR 6.302(B).” Specifically, it asserts that the phrase “maximum possible
prison sentence[s] for the offense[s]” does not stand alone and must be considered along
with MCR 6.302(B)(1), a separate provision requiring trial courts to advise the defendant
of “the name[s] of the offense[s] to which the defendant is pleading.” And when these
provisions are viewed together through the lens of the singular/plural canon, “just as
Subsection (1) requires a trial court to inform a defendant of each name of each offense, so
[too] Subsection (2) requires a trial court to inform a defendant of each maximum possible
sentence, not the maximum possible aggregate sentence.” However, we do not believe that
(B)(1) has any particular effect on our application of the singular/plural canon to (B)(2).

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17
Our interpretation of MCR 6.302(B)(2) is also consistent with this Court’s decision
in Brown-- a decision the dissent does not address in any meaningful way. There, we held
that even though MCR 6.302(B) did not expressly require trial courts to advise defendants
of habitual-offender enhancements, MCR 6.302(B)(2) nonetheless required courts to
advise “of the maximum possible prison sentence with habitual-offender enhancement
because the enhanced maximum becomes the ‘maximum possible prison sentence’ for the
principal offense.” Brown, 492 Mich at 693-694.10 We then opined:
By not telling a defendant the potential maximum sentence because
of his or her habitual-offender status, “a trial court is not advising of the ‘true’
potential maximum sentence.” Today’s holding accurately reflects the intent
of MCR 6.302(B)(2), which is that a defendant be informed beforehand of
the maximum sentence that would follow his or her plea of guilty. [Id. at
694 (citation omitted).]
Even under the dissent’s (correct) understanding of the contextual relationship between
(B)(1) and (B)(2)-- that these provisions must be read together-- we are no less persuaded
that defendants should be facilitated in their fullest understanding of the implications of
the trial court’s discretionary consecutive-sentencing authority. Even when reading each
noun of these provisions in the plural, as the dissent would have us do, we remain persuaded
that MCR 6.302(B) requires courts to advise defendants of their discretionary consecutive-
sentencing authority. It truly seems of no consequence that a trial court be required to
inform a defendant of the “maximum possible prison sentence[s] for the offense[s]” or
where (B)(1) and (B)(2) are read together to inform a defendant of the “maximum possible
prison sentence[s] for . . . the name[s] of the offense[s] to which the defendant is pleading.”
In other words, our understanding of the court rule is not altered at all by consideration of
(B)(1) and (B)(2) in tandem. As stated earlier, consecutive sentencing only becomes a
possibility affecting a defendant’s maximum possible term of incarceration when there are
multiple “sentences” for the named “offenses,” and thus we believe our understanding of
the rule to have no less force when (B)(1) and (B)(2) are considered together.
10 “The habitual-offender statutes, MCL 769.10 et seq., provide enhancement of a
defendant’s sentence on the basis of prior felony convictions,” which is intended to have
“a deterrent and punitive purpose.” Brown, 492 Mich at 689 (quotation marks and citation
omitted).

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18
[A]n habitual offender supplement is not a separate offense, and thus
it logically follows that it must be linked to, or considered one with, the
underlying offense. As such, to comply with MCR 6.302(B)(2), a defendant
must be made aware of the consequences of “the offense” including any
habitual offender enhancement. [Id. at 694 n 35 (quotation marks and
citation omitted).]
Ultimately, we are persuaded that requiring the trial court to advise a defendant of
the possibility of consecutive sentencing is consistent with “the intent of MCR 6.302(B)(2),
which is that a defendant be informed beforehand of the maximum sentence that would
follow his or her plea of guilty.” Id. at 694. When the court does not so inform the
defendant, it is “not advising of the ‘true’ potential maximum sentence” as it pertains to
the punishment on the multiple offenses. Id. (quotation marks and citation omitted).
Moreover, in order to comply with MCR 6.302(B)(2), “a defendant must be fully aware of
the consequences” of the plea, Brown, 492 Mich at 694 n 35, which includes the fact that
the second sentence could be served consecutively to the first sentence, resulting in a longer
term of incarceration. That is, as with the habitual-offender enhancement in Brown,
consecutive sentencing does not give rise to a separate offense, but rather is, for all practical
and legal purposes, “linked to,” or “considered one with,” or interconnected with,
underlying “offenses,” and thus constitutes an irreducible aspect of sentencing for multiple
“offenses” in specified circumstances-- that the punishment for one or more of these
“offenses” will be postponed in order to lengthen the punishment. Therefore, in accordance
with our court rules, the trial court must disclose its consecutive-sentencing authority in
order to ensure, as in Brown, that the defendant accurately understands his “true potential
maximum sentence.” Id. at 694.11
11 Because we conclude that MCR 6.302(B)(2) requires trial courts to advise defendants of

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19
IV. CONCLUSION
We conclude that MCR 6.302(B)(2) requires the trial court, in cases in which such
advice is relevant, to advise a defendant of its discretionary consecutive-sentencing
authority and the possible consequences of that authority for the defendant’s sentence. This
is because such authority clearly affects the defendant’s “maximum possible prison
sentence for the offense.” As a result, the trial court here erred when it denied defendant’s
motion to withdraw his plea because the court failed to apprise defendant of this authority
and its possible consequences for his sentence. We therefore reverse the judgment of the
Court of Appeals and remand to the trial court to allow defendant the opportunity to either
withdraw his guilty plea or to reaffirm this plea.
Stephen J. Markman
Bridget M. McCormack
Richard H. Bernstein
Elizabeth T. Clement
Megan K. Cavanagh
the court’s discretionary consecutive-sentencing authority and the reasonable implications
of that authority, we do not address defendant’s “due process” argument. See People v
Riley, 465 Mich 442, 447; 636 NW2d 514 (2001) (noting that the Court generally will not
address constitutional issues if it is unnecessary to resolve a case).

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S T A T E O F M I C H I G A N
SUPREME COURT
PEOPLE OF THE STATE OF MICHIGAN,
Plaintiff-Appellee,
v No. 158065
KELLY CHRISTOPHER WARREN,
Defendant-Appellant.
Z AHRA, J. (dissenting).
MCR 6.302(B) requires trial courts to advise a defendant of “the name of the offense
to which the defendant is pleading,” MCR 6.302(B)(1), and “the maximum possible prison
sentence for the offense,” MCR 6.302(B)(2). If, as in this case, a defendant pleads guilty
or no contest to more than one offense, MCR 6.302(B) requires only that trial courts advise
defendants of “the name[s] of the offense[s] to which the defendant is pleading” and “the
maximum possible prison sentence[s] for the offense[s].” The majority holds that MCR
6.302(B) requires, in cases involving potential consecutive sentences, that trial courts
“advise a defendant of its discretionary consecutive-sentencing authority and the possible
consequences of that authority for the defendant’s sentence.” The construction embraced
by the majority opinion is overly broad and imposes on trial courts a requirement I do not
find in MCR 6.302(B). The language of MCR 6.302(B) simply does not require trial courts

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2
to calculate a defendant’s potential aggregate maximum possible prison sentence1 resulting
from the imposition of consecutive sentences. Further, this Court has at least twice
previously declined to amend the court rules to expressly provide that trial courts advise
defendants of a possible aggregate maximum sentence resulting from the imposition of
consecutive sentences. Because I do not agree with the majority’s decision to read into
MCR 2.306(B) that which this Court has twice declined to expressly add to our court rules,
I must respectfully dissent.2 I would affirm the lower courts.
I. BASIC FACTS AND PROCEEDINGS
In late 2014, defendant was caught operating a motor vehicle while intoxicated. Six
months later, while free on bond awaiting trial, he was again caught operating a motor
vehicle while intoxicated. In each case, the prosecution charged defendant with operating
a vehicle while intoxicated, third offense,3 in addition to attendant misdemeanors related
to the offense, and provided defendant notice that he was subject to sentence enhancement
1 An “aggregate sentence” is defined as “[t]he total sentence imposed for multiple
convictions, reflecting appropriate calculations for consecutive as opposed to cumulative
periods, reductions for time already served, and statutory limitations.” Black’s Law
Dictionary (11th ed).
2 Because I conclude that MCR 6.302(B) provides no relief to defendant, I must also
address defendant’s constitutional argument: whether his due-process rights were violated
by the trial court’s failure to inform him of the possibility of consecutive sentences. For
reasons fully developed in this dissenting opinion, I conclude that defendant’s due-process
rights were not violated by the trial court’s failure to inform defendant of the possibility he
could be sentenced consecutively under MCL 768.7b.
3 MCL 257.625.

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3
as a fourth-offense habitual offender.4 Defendant’s prior criminal record is extensive,
including nine felony convictions and eleven misdemeanor convictions.
Defendant agreed to plead guilty to both drunk-driving charges in exchange for the
dismissal of the remaining charges and the habitual-offender enhancement. At defendant’s
plea hearing, the trial court informed him of the maximum sentence for each drunk-driving
offense (five years). Specifically, the court stated that “each of the charges carries with it,
absent the habitual, . . . a five year maximum charge; is that correct, folks?” Both the
prosecution and counsel for defendant agreed. After determining that defendant was
voluntarily pleading guilty to the offenses, the court elicited from defendant a factual basis
for the 2014 offense and accepted defendant’s plea to that offense. The court then elicited
a factual basis for the 2015 offense and accepted defendant’s plea to that offense.
Before defendant’s sentencing hearing, the probation department prepared a
presentence investigation report (PSIR). In it, the probation department informed the trial
court that it had the discretionary authority to impose consecutive sentences because
defendant committed the second offense while on bond for the first.5 The PSIR provided
the probation agent’s “Description of the Offense” in which each offense was separately
delineated. Within the PSIR, the agent included a “Sentencing Information Report” (SIR)
for each offense and assessed defendant’s prior record variables and offense variables for
each offense. Each SIR scored defendant’s sentencing guidelines, and each recommended
a minimum sentence of 12 to 24 months’ imprisonment. The PSIR recommended that
4 MCL 769.12(1)(b).
5 See MCL 768.7b.

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4
“defendant be sentenced to the Michigan Department of Corrections for a period of 24
months to 60 months for both Dockets, to run consecutively, with credit for 3 days served.”
Following the probation department’s recommendation, the trial court exercised its
discretion and imposed consecutive sentences of 24 to 60 months’ imprisonment, citing
defendant’s lengthy criminal history, the fact that the offense committed on bond was the
very same offense for which bond had been granted, and his proclivity for alcohol-related
offenses as documented in his PSIR.
Several months later, with the assistance of new counsel, defendant moved to
withdraw his plea, arguing that the plea-taking process was constitutionally defective
because he had not been specifically advised that the trial court had the discretionary
authority to impose consecutive sentences. The trial court denied the motion, and the Court
of Appeals denied the ensuing application for leave to appeal for lack of merit in the
grounds presented.6
Defendant appealed in this Court, and in lieu of granting leave to appeal, we
remanded the case for consideration as on leave granted.7 The Court of Appeals, in a split
decision, rejected defendant’s claim that the trial court had a duty to inform him of the
possibility of consecutive sentencing before accepting his plea.8 Defendant again applied
6 People v Warren, unpublished order of the Michigan Court of Appeals, entered
November 1, 2016 (Docket No. 333997).
7 People v Warren, 500 Mich 1056 (2017).
8 People v Warren, unpublished per curiam opinion of the Court of Appeals, issued May
17, 2018 (Docket No. 333997), unpub op at 1. The majority held that the plain language
of MCR 6.302 did not require advice about the possibility of discretionary consecutive
sentencing. The majority also concluded that due process did not require the trial court to

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5
for leave to appeal in this Court, and we ordered oral argument on the application, directing
the parties to file supplemental briefs addressing whether, when a defendant’s plea of guilty
or no contest will subject him to the court’s discretion to impose consecutive sentences,
the court must advise the defendant of that possibility before the court may accept the plea.9
II. APPLICABLE STANDARDS OF REVIEW
The interpretation of court rules presents a question of law that we review de novo.10
Questions of constitutional law involving waiving constitutional rights by entering a guilty
plea are reviewed de novo. 11 Violations of the Michigan Rules of Court are
nonconstitutional errors, and violations of due-process rights are constitutional errors, but
when unpreserved, both are subject to plain-error review.12
advise defendant that it had discretion to impose consecutive sentences because it was not
a “direct consequence” of pleading guilty. Id. at 5. Judge G LEICHER dissented, contending
that both MCR 6.302(B) and due process required trial courts to inform defendants about
the possibility of consecutive sentences because, like habitual-offender enhancements,
consecutive sentences affect a defendant’s “true potential maximum sentence.” Id. at 3
(G LEICHER , J., dissenting) (quotation marks and citation omitted).
9 People v Warren, 503 Mich 988 (2019).
10 People v Lee, 489 Mich 289, 295; 803 NW2d 165 (2011).
11 People v Cole, 491 Mich 325, 330; 817 NW2d 497 (2012).
12 People v Carines, 460 Mich 750, 767; 597 NW2d 130 (1999).

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6
III. ANALYSIS
A. THE PLAIN LANGUAGE OF MCR 6.302(B) DOES NOT CONTEMPLATE
CONSECUTIVE SENTENCES
MCR 6.302(B) concerns an “An Understanding Plea,” and it requires the trial court
to “advise the defendant or defendants of the following and determine that each defendant
understands:”
(1) the name of the offense to which the defendant is pleading; the
court is not obliged to explain the elements of the offense, or possible
defenses;
(2) the maximum possible prison sentence for the offense and any
mandatory minimum sentence required by law, including a requirement for
mandatory lifetime electronic monitoring under MCL 750.520b or 750.520c.
MCR 6.302(B)(2) refers not just to any “maximum possible prison sentence,” but
to “the maximum possible prison sentence for the offense.” Reading (B)(1) and (B)(2)
together, the court must advise a defendant as to the name of each discrete offense to which
a defendant is pleading, as well as to each discrete corresponding maximum possible prison
sentence. There is nothing in the court rule suggesting that “sentence” should be read as
“aggregate sentence.”13 The plain language of MCR 6.302(B) simply does not require a
trial court to advise a defendant at the plea hearing of the maximum possible aggregate
prison sentence for the offenses to which the defendant is pleading. Therefore, it cannot
be said, as the majority claims, that the phrase “maximum possible prison sentence for the
offense” within MCR 6.302(B)(2) is “additionally and materially affected by the possibility
of consecutive sentencing . . . .” Of course the trial court, within its discretion, may offer
13 See note 1 of this opinion. If this Court had wanted to use the term “aggregate sentence”
to clarify that a defendant must be informed of the maximum possible total sentence for
multiple convictions, it could have done so.

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7
an opinion about a maximum possible aggregate prison sentence to assist the parties in
facilitating a plea agreement, see, e.g., People v Cobbs,14 but neither our caselaw nor our
court rules currently require the trial court to provide defendant with such assistance.
I agree with the majority that “Michigan caselaw has not resolved the determinative
question in this case: whether MCR 6.302(B)(2) requires courts to inform defendants of
discretionary consecutive-sentencing authority before accepting a guilty or no-contest
plea.”15 Nonetheless, there is persuasive federal authority interpreting the analogous
federal rule, which is broader in scope than the Michigan rule.16 Specifically, FR Crim P
11(b)(1)(H) requires a defendant pleading guilty to be informed of “any maximum possible
14 People v Cobbs, 443 Mich 276; 505 NW2d 208 (1993).
15 As the majority points out, People v Johnson, 413 Mich 487, 490; 320 NW2d 876 (1982),
stated that the former court rule did not require trial courts to inform a defendant of “other
potential sentence consequences such as consecutive sentencing.” I recognize, however,
that this statement is dicta. Further, in my view, Johnson is distinguishable because it did
not address a defendant’s “maximum possible prison sentence” for any particular offense,
but only a lack of parole eligibility for that offense. Parole eligibility does not relate to a
“maximum possible prison sentence”; indeed, a paroled prisoner has necessarily not served
a “maximum possible prison sentence.” I also agree with the majority that People v
Blanton, 317 Mich App 107, 119; 894 NW2d 613 (2016), “relied upon the ‘mandatory
minimum sentence’ language of MCR 6.302(B)(2) and not the ‘maximum possible prison
sentence’ language of the rule” and is thus not on point.
16 Though not binding, federal precedent may be persuasive when interpreting analogous
text. See, e.g., Tobin v Mich Civil Serv Comm, 416 Mich 661, 671; 331 NW2d 184 (1982)
(reasoning that the Michigan Freedom of Information Act, MCL 15.231 et seq., was
patterned after the federal law and, thus, “decisions under the federal law are often
instructive and, in this instance, persuasive”); Gumma v D & T Constr Co, 235 Mich App
210, 223-224; 597 NW2d 207 (1999) (noting that, because the Natural Resources and
Environmental Protection Act, MCL 324.101 et seq., and its federal counterpart are similar,
“it is appropriate to examine federal case law interpreting similar issues”).

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8
penalty.” In United States v General,17 the United States Court of Appeals for the Fourth
Circuit held, “Rule 11 . . . does not require a district court to inform the defendant of
mandatory consecutive sentencing.” Other federal cases have concluded the same. 18
The majority supports its construction of MCR 6.302(B)(2) with an interpretive
court rule commonly known as the “number canon” of construction, which provides that
“[w]ords used in the singular also apply to the plural, where appropriate.” 19 This principle
is also codified in Michigan law20 and has common-law roots.21 But this canon of
construction does not alter my understanding of this court rule.
Applying the number canon to MCR 6.302(B), the rule would read:
(1) the name[s] of the offense[s] to which the defendant is pleading;
the court is not obliged to explain the elements of the offense[s], or possible
defenses;
(2) the maximum possible prison sentence[s] for the offense[s] and
any mandatory minimum sentence[s] required by law, including a
requirement for mandatory lifetime electronic monitoring under MCL
750.520b or 750.520c[.]
17 United States v General, 278 F3d 389, 395 (CA 4, 2002).
18 See United States v Henry, 702 F3d 377, 381 (CA 7, 2012) (“[Th]e district court was not
required to advise Henry that his federal sentence might be imposed to run consecutive to
his undischarged state sentence.”); United States v Ospina, 18 F3d 1332, 1334 (CA 6,
1994) (“[T]here is no requirement in [FR Crim P 11] that the court explicitly admonish a
defendant that a sentence may be imposed consecutively.”).
19 MCR 1.107. The majority refers to this rule as the “singular/plural canon.”
20 MCL 8.3b.
21 See Scalia & Garner, Reading Law: The Interpretation of Legal Texts (St. Paul:
Thomson/West, 2012), pp 129-130.

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9
Consistent application of the number canon supports the conclusion that the trial
court is not required to inform defendant of the possibility of consecutive sentences. Here,
defendant pleaded guilty to two offenses and, consistent with the number canon, was
advised of the maximum possible prison sentences for each of those two offenses. But the
majority does not apply the number canon in a consistent manner throughout the court rule.
Rather, the majority reaches its conclusion by using the number canon to make plural every
term that is shown in brackets above, except the word “sentence” in the phrase “the
maximum possible prison sentence.” But the number canon should apply to each noun in
MCR 6.302(B). As stated, the canon dictates that singular nouns may be made plural
“where appropriate,”22 and I see no textual reason why it is inappropriate to read “sentence”
as “sentences” when applying the canon to read “offense” as “offenses.” Instead of using
“common sense and everyday linguistic experience”23 to apply the number canon, the
majority’s usage drastically changes the meaning of the very object it purports to interpret.
This application of the number canon introduces an entirely new concept—“the maximum
possible [aggregate] prison sentence”—in order to advance a policy goal.
The majority attempts to justify its application of the number canon on the basis that
a defendant must not only understand the maximum possible “sentence” for
each separate offense, but also that for the range of “offenses” of which he
or she has been convicted, some of which may be viewed by the law as
interconnected in a way that carries independent sentencing consequences.
Then, and only then, can a defendant fully apprehend the true maximum term
of incarceration that he or she faces . . . .
22 MCR 1.107.
23 Reading Law, p 130.

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10
This may well be a laudable aim, but it is not a ground upon which to base the application
of a canon of construction.
The majority opinion also states:
Even, however, if we read “sentence” in the plural as the dissent
would have us do, we reach the same conclusion. That is, if a defendant must
be apprised of the “maximum possible prison sentences for the offenses,” the
trial court would still be required to inform the defendant of the court’s
discretionary consecutive-sentencing authority because where “sentences”
are imposed, and indeed only where “sentences” are imposed, the possibility
of a consecutive sentence becomes a possibility affecting the defendant’s
“maximum possible prison sentence” on such multiple “sentences.” And
thus to ensure the defendant’s full understanding of the plea, he or she must
be apprised of the court’s discretionary consecutive-sentencing authority.
But this alternative construction of MCR 6.302 imposes on trial courts an obligation
that is not expressed in the court rule: the extrapolation of a maximum possible aggregate
prison sentence when a defendant pleads guilty or no contest to multiple offenses. Further,
in positing its alternative analysis, the majority fails to consider the entire context of MCR
6.302(B). The phrase—as construed using the number canon—“maximum possible prison
sentence[s] for the offense[s]” within MCR 6.302(B)(2) does not stand alone and, in
context, must be considered along with MCR 6.302(B)(1), which, when likewise construed
using the number canon, speaks to “name[s] of the offense[s].” As stated, just as
Subsection (1) requires a trial court to inform a defendant of each name of each offense, so
Subsection (2) requires a trial court to inform a defendant of each maximum possible
sentence, not the maximum possible aggregate sentence.
I will not dispute the notion that information in regard to consecutive sentences is
“critical to a pleading individual” and “integral to a fully understanding plea.” Nor do I
dismiss the majority’s assertion that a “defendant’s [consecutive] sentences are neither

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11
viewed nor imposed in isolation, and for the defendant personally, understanding fully the
consequences and implications of a plea is not some academic exercise but an intensely
practical and life-altering exercise by which he or she might reasonably compare the
wisdom of a guilty or no-contest plea with the merits of proceeding to trial.” These
concerns may justify amending the court rules to require a trial court to advise a defendant
under MCR 6.302(B) of:
(2) the maximum possible prison sentence for the offense[, including,
if applicable, whether the law permits or requires consecutive sentences,] and
any mandatory minimum sentence required by law, including a requirement
for mandatory lifetime electronic monitoring under MCL 750.520b or
750.520c.
But the current language of MCR 6.302(B) does not require that a trial court advise
a defendant of the possibility that the sentence for the offense may be imposed
consecutively to another sentence. Defendant’s supplemental brief and the amicus briefs
presented on defendant’s behalf all but concede the point. Defendant’s supplemental brief
does not rely on the actual text of MCR 6.302(B) to support his interpretation. Rather, he
only argues under caselaw that he was “not advised of [the] ‘true sentence’ he could
receive.” 24 The amicus brief of the Criminal Defense Attorneys of Michigan admits that
“the Michigan Rules of Court do not require a warning on consecutive sentencing during
the plea hearing . . . .” Our Attorney General has taken the very unusual position of filing
an amicus brief against the position of her office. In so doing, she does not argue that MCR
24 In support of this argument, defendant cites People v Brown, 492 Mich 684, 702; 822
NW2d 208 (2012). The majority opinion does not embrace defendant’s position,
concluding instead that “[o]ur interpretation of MCR 6.302(B)(2) is . . . consistent with this
Court’s decision in Brown[.]”

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6.302(B) requires a trial court to extrapolate the maximum possible sentence that can be
imposed when a defendant pleads guilty or no contest to multiple offenses. Instead she
argues that due process requires us to amend our court rule.
Last, the language mentioned above as a suggestion to amending MCR 6.302(B) is
the exact language that this Court declined to adopt in 1985.25 As the prosecution
highlights, this Court has twice before considered amending the court rules to expressly
provide that trial courts advise defendants of the possible effect on the maximum aggregate
sentence resulting from the imposition of consecutive sentences, but the Court has declined
to do so. First, in the early 1970s this Court created the Supreme Court Guilty Plea
Standards Committee. 26 The Court offered Suggested Guilty Plea Taking Guidelines as a
starting point for the committee’s work and suggested that the new rule require trial courts
to “personally inform defendant of the maximum sentence prescribed by law and, if there
is a mandatory minimum sentence, the minimum sentence prescribed by law . . . [.]” 27 Yet,
in a footnote attached to that suggested rule, this Court drew the committee’s attention to
Section 1.4(c)(i) of the American Bar Association (ABA) Standards Relating to Pleas of
Guilty, which provided that the trial court must inform the defendant “of the maximum
possible sentence on the charge including that possible from consecutive sentences[.]” 28
25 Proposed Rules of Criminal Procedure, 422A Mich 1, 113 (1985).
26 People v Williams, 386 Mich 277, 293-295; 192 NW2d 466 (1971).
27 Id. at 303.
28 Id. at 303 n 9 (emphasis added).

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Several months later, the committee proposed a rule that required the trial court to
inform the defendant of “the maximum sentence and the mandatory minimum sentence, if
any, for the offense to which the plea is offered[.]” 29 Missing from the committee’s
proposal was the ABA’s consecutive-sentence language that the Court highlighted for the
committee. The Court adopted the committee’s proposed rule without change.30
Then, on November 4, 1981, the Court issued a proposed amendment to the court
rules that would require that trial courts inform defendants of “the maximum possible
prison sentence for the offense, including that possible from consecutive sentences[.]”31
This Court never adopted the proposed additional language.
In addition, as highlighted by amicus Prosecuting Attorneys Association of
Michigan, a Criminal Procedure Rules Committee submitted Proposed Rules of Criminal
Procedure on August 5, 1985, which were published for comment by the Court.32 The
version of MCR 6.302(A)(2) drafted by the committee required that when taking a plea the
trial court inform the defendant of “the mandatory minimum penalty, if any, and the
maximum possible penalty for the offense, including, if applicable, whether the law
permits or requires consecutive sentences or precludes probation or parole.”33 The Court,
29 In the Matter of the Amendment of GCR 1963, 785, unpublished order of the Michigan
Supreme Court, entered May 15, 1972, p 3 (publishing proposal for public comment).
30 GCR 1963, 785, 389 Mich lv (promulgating revised court rule).
31 Proposed amendment to GCR 1963, 785, unpublished order of the Michigan Supreme
Court, entered November 4, 1981, p 1.
32 422A Mich at 115.
33 Id. (emphasis added).

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however, in adopting and modifying the committee proposals, removed the provision that
a defendant pleading guilty be advised of the consecutive-sentence ramifications of the
plea.34 While the crux of my analysis is based on the text of the court rule, that these
amendments were proposed and rejected provides further indication that the common
understanding of the court rule was that it did not require defendants to be notified of the
possibility of consecutive sentencing.
B. DUE PROCESS DOES NOT REQUIRE THAT TRIAL COURTS INFORM
DEFENDANTS OF POTENTIAL CONSECUTIVE SENTENCES
Both the Michigan Constitution and the United States Constitution preclude the
government from depriving a person of life, liberty, or property without due process of
law.35 Due process requires that a criminal defendant pleading guilty do so (1)
competently, (2) voluntarily, (3) knowingly, and (4) with the benefit of effective assistance
34 Perhaps one reason the Court declined to adopt these amendments is because it may be
difficult, as a practical matter, for the trial court to know at the time of the plea hearing that
a statute allowing for consecutive sentencing applies to the defendant. As the prosecution
explained in its brief, in some situations, such as if a second offense occurs in another
county, the trial court may not be aware that consecutive sentencing is a possibility at the
time the defendant pleads guilty. The growing number of statutes allowing for consecutive
sentences only makes it more difficult for a trial court to know at the plea hearing whether
such a statute applies. Yantus, Sentence Creep: Increasing Penalties in Michigan and the
Need for Sentencing Reform, 47 U Mich J L Reform 645, 681 (2014) (“Before 1990, there
were thirteen consecutive sentencing statutes in Michigan. From 1990 to 2013, the
Legislature added twenty-nine new consecutive sentencing provisions.”). Nevertheless, as
stated, I am open to considering amending the court rules to require that defendants be
informed of the possibility of consecutive sentences, but I believe that the administrative
process would be a better avenue through which to flesh out these kinds of practical
concerns.
35 US Const, Am XIV; Const 1963, art 1, § 17.

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of counsel.36 This Court has previously acknowledged that “the requirements of
constitutional due process . . . might not be entirely satisfied by compliance with subrules
(B) through (D) [of MCR 6.302].”37
Here, only the third constitutional requirement is at issue. To satisfy this
requirement, a defendant must have sufficient information to ensure that his or her decision
is an “intelligent choice among the alternative courses of action open to the defendant.”38
The defendant must also have some understanding of the option he or she is choosing. That
is, the defendant must be aware of “the true nature of the charge” against him or her39 as
well as “the direct consequences” of entering a guilty plea.40
Defendant first argues that the “possibility of consecutive sentencing violates Due
Process because consecutive sentencing is ‘part of the sentence itself,’ and would be a
‘direct’ rather than ‘collateral’ consequence.” Defendant relies on this Court’s decision in
People v Cole,41 which considered whether constitutional due process requires a trial court
to inform a defendant pleading guilty or no contest to first-degree criminal sexual conduct
36 See, e.g., Kercheval v United States, 274 US 220, 223; 47 S Ct 582; 71 L Ed 1009 (1927).
37 People v Cole, 491 Mich 325, 332; 817 NW2d 497 (2012).
38 North Carolina v Alford, 400 US 25, 31; 91 S Ct 160; 27 L Ed 2d 162 (1970).
39 Smith v O’Grady, 312 US 329, 334; 61 S Ct 572; 85 L Ed 859 (1941).
40 Brady v United States, 397 US 742, 755; 90 S Ct 146; 325 L Ed 2d 747 (1970) (quotation
marks and citation omitted).
41 Cole, 491 Mich 325.

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(CSC-I)42 or second-degree criminal sexual conduct (CSC-II)43 that he or she will be
sentenced to mandatory lifetime electronic monitoring (LEM).44 When Cole was decided,
MCR 6.302(B) did not explicitly mandate that the trial court notify a defendant that he or
she would be subject to mandatory LEM under MCL 750.520c(2)(b).45 Central to Cole’s
conclusion that due process required the trial court to inform a defendant of the LEM
requirement is that the “Legislature chose to include the mandatory [LEM] requirement in
the penalty sections of the CSC-I and CSC-II statutes, and that both statutes can be found
in the Michigan Penal Code, which describes criminal offenses and prescribes penalties.” 46
Further, the Cole Court noted that “both [LEM] provisions provide that ‘the court shall
sentence the defendant to [LEM] . . . .’ ” Last, the Cole Court observed that the CSC-II
statute provides that the sentence of [LEM] is “[i]n addition to the penalty specified in
subdivision (a),” MCL 750.520c(2)(b), and the CSC-I statute provides similarly that LEM
is “[i]n addition to any other penalty imposed under subdivision (a) or (b),” MCL
520b(2)(d).47 The Cole Court concluded that “the Legislature intended mandatory [LEM]
42 MCL 750.520b(2)(d).
43 MCL 750.520c(2)(b).
44 Cole, 491 Mich at 327.
45 See id. at 330 n 4.
46 Id. at 335.
47 Id. at 335-336.

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to be an additional punishment and part of the sentence itself when required by the CSC-I
or CSC-II statutes.” 48
Cole is simply inapplicable to the instant case because the provision allowing for
the imposition of a consecutive sentence, MCL 768.7b, is not part of the sentence itself.
Unlike the provision at issue in Cole, MCL 768.7b is not found in the statute setting forth
the crimes and the applicable penalty, MCL 257.625, but is found in the Code of Criminal
Procedure. Further, and more substantively, MCL 768.7b is not potential punishment that
relates to the offenses to which a defendant pleads guilty. MCL 768.7b is offense-neutral,
and it broadly applies “if a person who has been charged with a felony, pending the
disposition of the charge, commits a subsequent offense that is a felony.” In other words,
MCL 768.7b does not authorize additional punishment for conduct that gave rise to
offenses; it only authorizes punishment because a defendant brazenly committed a second
felony in the relatively short period of time during which a previous felony charge against
that defendant was pending. In contrast, the LEM requirement considered in Cole was
clearly intended by the Legislature to punish the defendant for the very offense to which
he pleaded guilty. In this sense, a potential consecutive sentence under MCL 768.7b is a
“collateral” consequence of pleading guilty to the offenses.
With that said, I will not dispute that the imposition of consecutive sentences is “a
particularly severe ‘penalty.’ ”49 But due process does not require that trial courts advise
48 Id. at 336.
49 Padilla v Kentucky, 559 US 356, 365; 130 S Ct 147; 3176 L Ed 2d 28 (2010) (citation
omitted).

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defendants in regard to all severe penalties.50 Rather, this advisory responsibility lies
primarily with defense counsel, whose effective assistance is guaranteed to all criminal
defendants by the United States and Michigan Constitutions.51
Defendant next argues that consecutive sentencing is a direct consequence because
the Legislature intended to impose punishment. Again, I will not dispute that the
imposition of consecutive sentences is “a particularly severe ‘penalty.’ ”52 Nor will I
dispute that the general purpose of consecutive sentencing is to “enhance the punishment
imposed upon those who have been found guilty of more serious crimes and who
repeatedly engage in criminal acts.”53 More specific to this case, I agree with defendant
that
[t]he intended effect of § 7b can best be seen by analyzing the deterrence
situation that exists before and after a felony has been charged. In general,
once a criminal defendant has been charged with a felony, the level of
deterrence against his commission of a second felony drops. Section 7b
restores the level of deterrence to its pre-charge plateau.[54]
The fact nonetheless remains that consecutive sentencing was merely a possibility
at the plea hearing. The discretionary authority to impose consecutive sentences does not
50 Id.
51 5 LaFave, Criminal Procedure (4th ed), § 21.4(d) (noting that a common thread among
the cases rejecting due-process challenges “is that defense counsel should be expected to
discuss with his client the range of risks attendant his plea”).
52 Padilla, 559 US at 365 (citation omitted).
53 People v Smith, 423 Mich 427, 445; 378 NW2d 384 (1995).
54 People v Williams, 89 Mich App 633, 637; 280 NW2d 617 (1979).

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represent a definite, immediate, or automatic effect because it depends on the trial court’s
later exercise of discretion.55 Only after the court considers the PSIR and the particular
circumstances of a defendant’s personal and criminal history can the court fashion an
individualized sentence that, in the court’s discretion, may merit consecutive sentences.
This is not an unusual practice. Many of the decisions a trial court makes following
a defendant’s entry of a guilty plea have a substantial influence on a defendant’s ultimate
sentence. For instance, a court’s sentencing guidelines scoring decisions later inform a
defendant’s ultimate sentence. Likewise, the trial court may exercise discretion by
sentencing a defendant within or perhaps outside the sentencing guidelines. In my view,
the possibility of consecutive sentences pursuant to MCL 768.7b is a “collateral”
consequence of defendant’s guilty pleas, not a “direct result” of the guilty pleas, because
the trial court had discretion whether to impose consecutive sentences.
IV. CONCLUSION
The plain language of MCR 6.302(B) does not support the conclusion that trial
courts must advise criminal defendants that sentences may potentially be imposed
consecutively to one another. Further, I disagree with the majority’s decision to add by
judicial construction that which this Court has repeatedly declined to add in drafting MCR
55 A solid majority of federal circuit courts agrees. See, e.g., United States v Ocasio-
Cancel, 727 F3d 85, 90 (CA 1, 2013); Wilson v McGinnis, 413 F3d 196, 200 (CA 2, 2005);
Paradiso v United States, 482 F2d 409, 415 (CA 3, 1973); United States v Fentress, 792
F2d 461, 465 (CA 4, 1986); United States v Saldana, 505 F2d 628, 629 (CA 5, 1974);
United States v Gaskin, 587 F Appx 290, 297-298 (CA 6, 2014); Faulisi v Daggett, 527
F2d 305, 309 (CA 7, 1975); Clemmons v United States, 721 F2d 235, 238 (CA 8, 1983);
United States v Rubalcaba, 811 F2d 491, 494 (CA 9, 1987); United States v Hurlich, 293
F3d 1223, 1231 (CA 10, 2002); United States v Humphrey, 164 F3d 585, 587-588 (CA 11,
1999).

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6.302(B). Lastly, the possibility of consecutive sentences pursuant to MCL 768.7b is a
“collateral” consequence of defendant’s guilty pleas, not a “direct result” of the guilty
pleas, because the trial court had discretion whether to impose consecutive sentences.
Accordingly, due process did not require that the trial court inform defendant that he was
subject to consecutive sentencing. I respectfully dissent.
Brian K. Zahra
David F. Viviano

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