People of Michigan v. Zouelfikar Mahmoud Nehmeh ( 2018 )

STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED
December 13, 2018
Plaintiff-Appellee,
v No. 341247
Wayne Circuit Court
ZOUELFIKAR MAHMOUD NEHMEH, LC Nos. 05-010832-01-FH;
08-003200-01-FC;
Defendant-Appellant. 08-003209-01-FC
Before: M. J. KELLY, P.J., and METER and O’BRIEN, JJ.
PER CURIAM.
Defendant, Zouelfikar Nehmeh, appeals by delayed leave granted1 his no-contest pleas
and sentences in three separate cases. For the reasons stated in this opinion, we affirm in part,
vacate in part, and remand for further proceedings.
I. BASIC FACTS
In Docket No. 05-010832-01-FH (the 2005 case) Nehmeh pleaded no contest to one
count of fourth-degree criminal sexual conduct (CSC-IV), MCL 750.520e, and was sentenced in
April 2006 to two years’ probation. In 2008, Nehmeh pleaded no contest in two additional cases.
Specifically, he pleaded no contest to two counts of second-degree criminal sexual conduct
(CSC-II), MCL 750.520c, in Docket No. 08-003200-01-FC, and to one count of CSC-II in LC
No. 08-003209-01-FC (collectively the 2008 cases). He also pleaded no contest to violating his
probation in the 2005 case. On June 20, 2008, the trial court sentenced Nehmeh to prison terms
of 8 to 15 years for each CSC-II conviction in the 2008 cases, and to 211 days to 15 years in the
2005 case. On March 17, 2009, the trial court sua sponte amended the judgments of sentence in
the 2008 cases to state that the sentences are “consecutive to parole” and that Nehmeh was
subject to “lifetime electronic monitoring.”
In 2014, Nehmeh filed an application for leave to appeal an order by the trial court
denying his motion for relief from judgment. This Court, in lieu of granting the application,
1
People v Nehmeh, unpublished order of the Court of Appeals, entered January 30, 2018
(Docket No. 341247).
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remanded the case to the trial court for correction of Nehmeh’s presentence report, but denied
leave to appeal in all other respects “for lack of merit in the grounds presented.” People v
Nehmeh, unpublished order of the Court of Appeals, entered March 12, 2015 (Docket No.
324096). Thereafter, our Supreme Court determined that Nehmeh had earlier lost his right to
direct review of his convictions and sentences through no fault of his own, and accordingly,
remanded the case to the trial court for appointment of a substitute appellate lawyer, who was
permitted to file an application for leave to appeal in this Court for consideration under the
standards for direct appeals. People v Nehmeh, 501 Mich 882, 882 (2017). After an appellate
lawyer was appointed, Nehmeh filed a delayed application for leave to appeal with this Court,
asserting that his no-contest pleas were not voluntarily and understandingly made because they
were the product of his trial lawyer’s coercion and ineffective assistance, and because the trial
court failed to advise him of the consequences of lifetime electronic monitoring.
II. NEHMEH’S RIGHT TO CHALLENGE THE VALIDITY OF PLEA
Preliminarily, the prosecution argues that Nehmeh should be foreclosed from challenging
the validity of his pleas because he did not seek relief from his pleas in a timely filed motion to
withdraw the pleas in the trial court. See MCR 6.310(C) and (D). However, our Supreme Court
determined that Nehmeh’s prior appointed appellate lawyer failed to act on Nehmeh’s behalf
within the time for direct appeal. Accordingly, the Court remanded the case to the trial court
because
through no fault of the defendant, he lost the right to direct review of his
convictions and sentences. On remand, substitute appellate counsel, once
appointed, may file an application for leave to appeal in the Court of Appeals for
consideration under the standard for direct appeals, and/or any appropriate
postconviction motions in the circuit court, within six months of the date of the
circuit court’s order appointing or reappointing counsel. [Nehmeh, 501 Mich at
883.]
On remand, the appointed substitute appellate lawyer filed an application for leave to appeal with
this Court, and this Court granted the application. Notwithstanding any limitations in MCR
6.310(C), in light of the Supreme Court’s order, we shall consider the merits of Nehmeh’s appeal
under the standard for direct appeals. See Augustine v Allstate Ins Co, 292 Mich App 408, 425;
807 NW2d 77 (2011).
III. PLEA WITHDRAWAL
A. STANDARD OF REVIEW
Nehmeh argues that he is entitled to withdraw his no-contest pleas in the 2008 cases
because the trial court did not advise him that he would be subject to lifetime electronic
monitoring. He also argues that he should be allowed to withdraw his pleas because his trial
lawyer provided ineffective assistance. “A trial court’s decision on a motion to withdraw a
guilty plea made after sentencing will not be disturbed on appeal unless there is a clear abuse of
discretion.” People v Seadorf, 322 Mich App 105, 109; 910 NW2d 703 (2017). “An abuse of
discretion occurs when the decision results in an outcome falling outside the range of principled
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outcomes.” Id. (quotation marks and citation omitted). “Whether a defendant has been denied
the effective assistance of counsel is a mixed question of fact and constitutional law.” People v
Solloway, 316 Mich App 174, 187; 891 NW2d 255 (2016). Any findings of fact by the trial
court are reviewed for clear error. Id. at 188.
B. ANALYSIS
Nehmeh was convicted of three counts of CSC-II under MCL 750.520c for sexually
abusing the complainants, who were under the age of 13 at the time of the abuse. Nehmeh was
an adult at the time of the offenses. MCL 752.520n(1) provides that “[a] person convicted under
section . . . 520c for criminal sexual conduct committed by an individual 17 years old or older
against an individual less than 13 years of age shall be sentenced to lifetime electronic
monitoring . . . .” See also MCL 750.520c(2)(b). The parties do not dispute that Nehmeh was
subject to lifetime electronic monitoring. In People v Cole, 491 Mich 325, 338; 817 NW2d 497
(2012), our Supreme Court held “that mandatory lifetime electronic monitoring for convictions
of CSC-I and CSC-II is part of the sentence itself and is therefore a direct consequence of a
defendant’s guilty or no-contest plea.” Consequently, “at the time a defendant enters a guilty or
no-contest plea, the trial court must inform the defendant if he or she will be subject to lifetime
electronic monitoring.” Id.Here, Nehmeh was not advised of the requirement of lifetime electronic monitoring at the
time he entered his no-contest pleas. However, the trial court did not impose any requirement of
lifetime electronic monitoring when it originally sentenced defendant on June 20, 2008. This
requirement was first added when the trial court sua sponte issued the amended judgments of
sentence on March 17, 2009. Under these circumstances, the prosecution argues, and we agree,
that the appropriate remedy is not to remand to the trial court to allow Nehmeh to withdraw his
pleas, but to vacate the amended judgments of sentence on the ground that the trial court lacked
the authority to sua sponte amend the judgments.
In People v Comer, 500 Mich 278; 901 NW2d 553 (2017), our Supreme Court concluded
that the defendant’s original sentence was invalid because it did not include the required
imposition of electronic monitoring. Id. at 283. The Court concluded, however, that pursuant to
MCR 6.435 and MCR 6.429, “the trial court’s authority to correct an invalid sentence on its own
initiative ends upon entry of the judgment of sentence.” Comer, 500 Mich at 297. “Under these
rules, a party must move to correct an invalid sentence; a court cannot do so on its own accord
after entry of judgment.” Id. at 299. The Court vacated the trial court’s corrected judgment of
sentence, and remanded the case to the trial court to reinstate the previous judgment of sentence
that omitted the requirement of electronic monitoring. Id. at 300-301.
The Court’s decision in Comer was based on MCR 6.429(A), which then provided:
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A motion to correct an invalid sentence may be filed by either party. The
court may correct an invalid sentence, but the court may not modify a valid
sentence after it has been imposed except as provided by law.[2]
Thus, pursuant to Comer, the trial court lacked the authority to sua sponte amend Nehmeh’s
judgments of sentence to impose electronic monitoring. We therefore vacate his amended
judgments of sentence in Docket Nos. 08-003200-01-FC and 08-003209-01-FC, and remand for
reinstatement of the original judgments of sentence entered on June 20, 2008, which did not
include the requirement of lifetime electronic monitoring.
Nehmeh also argues that he should be allowed to withdraw his plea because his trial
lawyer failed to provide adequate assistance. In support, he notes that one of the complainants
has recanted her allegations of sexual abuse, and because of misconduct by the prosecutor and
the investigating detective. To establish ineffective assistance, a defendant must show that his
lawyer’s performance was deficient, i.e., “it fell below an objective standard of reasonableness,”
and but for his lawyer’s error, “there is a reasonable probability that the outcome of the
defendant’s trial could have been different.” Id. The defendant “bears the burden of establishing
the factual predicate for his claim.” People v Putman, 309 Mich App 240, 248; 870 NW2d 593
(2015) (quotation marks and citation omitted). In the context of a guilty plea, claims of
ineffective assistance pertain to “whether the defendant tendered the plea voluntarily and
understandingly.” People v White, 307 Mich App 425, 431; 862 NW2d 1 (2014).
Nehmeh averred in an affidavit that he was coerced into entering his pleas because his
lawyer refused to represent him at trial unless he paid an additional $100,000 fee. This claim is
directly contradicted by Nehmeh’s statements at the plea hearing. Before the trial court accepted
his pleas, it questioned him under oath to determine if the pleas were knowingly, voluntarily, and
understandingly made. Nehmeh stated that no one had threatened, coerced, or pressured him
into pleading no contest, and that he was doing so freely, voluntarily, knowingly, and
intelligently. Nehmeh also expressed his satisfaction with his lawyer’s assistance, and agreed
that his lawyer was acting in his best interests. Nehmeh’s “contradictory affidavit is insufficient
to contradict his sworn testimony in open court.” Id. at 432. Thus, Nehmeh is not entitled to
plea withdrawal on this basis.
2
MCR 6.429(A) has since been amended, effective September 1, 2018. It now provides:
The court may correct an invalid sentence, on its own initiative after
giving the parties an opportunity to be heard, or on motion by either party. But
the court may not modify a valid sentence after it has been imposed except as
provided by law. Any correction of an invalid sentence on the court’s own
initiative must occur within 6 months of the entry of the judgment of conviction
and sentence. [Emphasis added.]
This amendment does not apply in this case, in which the trial court amended Nehmeh’s
judgments of sentence in 2009, well before the effective date of the court rule amendment.
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Nehmeh further contends that his lawyer was ineffective by failing to interview witnesses
and failing to file potentially successful motions. However, Nehmeh has not identified any
witnesses he believes should have been interviewed, and he does not specify what motions he
believes his lawyer should have filed or that could have provided a viable defense. Thus,
Nehmeh has not established a factual predicate for these claims. Putman, 309 Mich App at 248.
Nehmeh also asserts that one of the complainants, AW, recanted her allegations to her
mother. Nehmeh’s only evidence of recantation is the mother’s affidavit stating that AW told
her that Nehmeh did not abuse her, and Nehmeh’s own affidavit referencing the mother’s
statements. These affidavits are not competent evidence of recantation because they are based
on inadmissible hearsay. MRE 801(c); MRE 802. As the trial court observed, Nehmeh did not
submit any affidavit from AW herself either recanting or otherwise denying the allegations.
Finally, Nehmeh asserts that the detective who investigated this case and the
complainants’ father collaborated to coach the complainants to fabricate the allegations. He also
accuses the detective of threatening and intimidating Nehmeh’s wife and mother of the
complainants, and Nehmeh and his wife’s sons. He further alleges that the complainants’ father
told the prosecutor that the complainants did not want to testify because they did not want to give
false testimony against defendant. Again, Nehmeh has failed to present competent evidence to
support these allegations. Although Nehmeh asserts that the detective threatened and intimidated
his sons, he does not specify how the detective allegedly threatened or intimidated them, and he
has not provided any affidavits from his sons regarding any allegedly threatening or intimidating
conduct. Nehmeh’s wife merely asserted in her affidavit that she told AW that the detective
“kept [her] out of court.” She did not indicate how or why, and she too did not otherwise
identify any allegedly threatening or intimidating conduct by the detective. Nehmeh’s claim that
the complainants’ father told the prosecutor that the complainants did not want to offer false
testimony against Nehmeh is based on a statement allegedly made by AW to her mother. But
defendant did not provide any affidavit from AW to support that she heard any such statement,
nor did the mother refer to any such statement by AW in her own affidavit. Given these
deficiencies, the trial court did not abuse its discretion by denying Nehmeh’s motion to withdraw
his no-contest pleas.
Affirmed in part, vacated in part, and remanded for further proceedings consistent with
this opinion. We do not retain jurisdiction.
/s/ Michael J. Kelly
/s/ Patrick M. Meter
/s/ Colleen A. O'Brien
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