By Ben Solis
Gongwer News Service
The armed robbery convictions of a man who pleaded guilty to aiding in the theft of a Biggby Coffee location – but later attempted withdraw that plea – were reversed Tuesday by a 2-1 decision of the Michigan Court of Appeals.
In an unpublished per curiam opinion released Wednesday, the majority in People v. Rembert (COA Docket No 362785) agreed with the defendant's assertion that he had ineffective counsel and reversed the convictions. The majority included Judge Noah Hood and Judge Allie Greenleaf Maldonado.
Judge James Redford dissented and would have affirmed the convictions and sentence.
The case involved the robbery of a Biggby in which the defendant drove the vehicle that dropped off the co-defendants who committed the robbery. The two co-defendants robbed the store at gun point, and the defendant in the case drove them away from the scene. The defendant claimed throughout the proceedings that he did not know they were armed and they asked him to assist them with a scam.
The court record shows he was told and believed a person wanted to purchase drugs from them for $300, and the plan was to just take the money without providing the drugs requested. He did not know they were armed with a gun until after they returned from robbing the store and entered the vehicle.
Although he helped them flee the scene, he claimed he was not aware a robbery occurred until he was confronted by police.
The defendant pleaded guilty, but the record remained shaky at the hearing because he maintained he did not know a robbery was going to occur. The court accepted the plea because he, at the very least, knew someone was going to be robbed, regardless of whom.
He sought to withdraw his guilty plea, arguing the factual basis was inadequate. The motion was denied, he appealed to the Court of Appeals but was denied, and the Supreme Court directed the appellate panel to rehear the case on leave granted.
On Tuesday, Hood and Maldonado wrote that they agreed with the defendant that he had ineffective counsel, which resulted in a plea that was involuntary and unknowingly issued.
"The defendant has described an intent to aid and abet a larceny, and there does not appear to be any authority suggesting as a matter of law that armed robbery inherently is a natural and probable consequence of larceny. We believe that the proper approach is to examine the intended crime, examine the actual crime, and then determine whether the actual crime was a natural and probable consequence of the intended crime," the majority wrote. "When viewed in this light, robbing a coffee shop at gunpoint clearly is not a natural and probable consequence of swindling a would-be drug buyer. If the codefendants had truly exited the defendant's car unarmed with the intention of entering the apartment building and running off with $300, there is no world in which they instead would have wound up in a Biggby, with a gun in people's faces, demanding money."
The prosecution argued without citation to any legal authority, the majority wrote, that drug deals were so inherently dangerous that anyone involved should foresee the outbreak of violence.
"This is a broad generalization that is highly susceptible to sharp rebuttal. The prosecution also argues that, in this particular case, the defendant could have foreseen that violence could have broken out if the would-be drug purchaser forcefully resisted the codefendants' attempt to steal from him and that a dangerous weapon could have become involved. While defendant would most likely be criminally liable if that had occurred, the prosecution is wading deep into hypotheticals," the majority wrote. "It could be difficult to convince a jury to hold the defendant responsible for the armed robbery of a coffee shop on the basis of the possibility that an imaginary drug deal could have escalated into an imaginary struggle involving an imaginary weapon."
The majority found that if a jury believed the defendant was credible, it would be highly likely that the jury would acquit him.
"Trial counsel advised the defendant to accept the … agreement because he did not believe the defendant could succeed at trial. Trial counsel testified that his only option at trial would be 'to probably argue some sort of jury nullification.' Trial counsel was asked to explain why 'jury nullification' would be necessary if the defendant 'didn't share the same intent with' his codefendants," the majority wrote. "Even the trial court acknowledged that trial counsel 'gave an incorrect recitation of the law on aiding and abetting while testifying at the hearing.'"
The attorney for the defendant also advised him that he could not prevail at trial due to a misunderstanding of the law. That showed the majority that the defendant received ineffective assistance.
Redford disagreed with his colleagues.
"I do not see the same chasm in the natural and probable consequences between the larceny against a would-be drug buyer and the armed robbery of the Biggby. As described by the defendant, defendant agreed to act as a get-away driver in a plan to deceive a would-be drug buyer into handing over funds without providing drugs in return," Redford wrote. "Contrary to the majority's assertion, common sense counsels that drug dealing is an inherently dangerous enterprise in which both buyer and seller would be reasonably expected to carry a firearm to protect themselves or the product. This plan could have easily escalated into a violent affray in which a codefendant brandishes a weapon on his own or in response to the victim's attempt to prevent the larceny."
Redford said the robbery of a Biggby as opposed to a nearby drug-buyer didn't remove the case from the "natural and probable consequences of the intended crime."
"The defendant drove his codefendants to a specific location with the intent of stealing money from someone," Redford wrote. "That his codefendants would shift the focus of that theft from a would-be drug buyer to nearby cashiers to demand money is of little difference."
As to the attorney's misunderstanding of the law, Redford said the defendant was made sufficiently aware of the tenets of the plea deal and that his attorney secured him a sentence below the minimum sentence guidelines.
"Although the defendant may have been misinformed about this piece of his plea amounting to a difference of 15 months in the minimum sentence until the plea hearing, this misinformation was dispensed with at the plea hearing before he entered the plea," Redford wrote. "Therefore, I cannot conclude that defendant's plea was rendered unknowing and involuntary."
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