Background
Jeffrey Wayne Tomes was charged with multiple offenses after receiving a package containing 447.9 grams of methamphetamine. The charges included two counts of possession with intent to deliver methamphetamine and four counts of felony-firearm based on his possession of two pistols and two rifles.
While urging Tomes to accept a plea offer, trial counsel advised him that each felony-firearm count carried a mandatory two-year sentence consecutive to everything else, exposing him to eight mandatory years before sentences on the drug charges. After unsuccessfully seeking new counsel, Tomes pleaded guilty to one methamphetamine-delivery count in exchange for dismissal of the remaining charges and received 6 to 20 years in prison. He later moved to withdraw the plea, arguing that counsel’s incorrect sentencing advice rendered it involuntary, but the trial court denied relief.
The Court’s Holding
The Court of Appeals held that trial counsel performed deficiently by advising Tomes that his four felony-firearm sentences could run consecutively to one another. Under MCL 750.227b(3) and Michigan precedent, felony-firearm sentences run consecutively only to their predicate felonies; multiple felony-firearm sentences are not themselves consecutive. The trial court therefore legally erred in concluding that four consecutive two-year terms were possible.
The court also found a reasonable probability that Tomes would have insisted on going to trial if properly advised. He had repeatedly resisted the plea, sought substitute counsel, accepted the offer only after facing an imminent deadline, and later pursued withdrawal through several attorneys. The prosecutor’s description of a two-year consecutive penalty did not cure counsel’s misinformation because no one expressly told Tomes that the four felony-firearm sentences would run concurrently. The court held that the ineffective assistance rendered the plea involuntary, vacated the order denying withdrawal, and remanded for further proceedings.
Key Takeaways
- Multiple felony-firearm sentences do not run consecutively to one another; each runs consecutively only to its predicate felony.
- Materially inaccurate advice about sentencing exposure can constitute ineffective assistance and render a guilty plea involuntary.
- Ambiguous or incomplete statements during plea proceedings do not cure counsel’s misinformation unless the error is affirmatively corrected.
Why It Matters
The decision underscores counsel’s duty to give accurate sentencing advice during plea negotiations. Overstating mandatory exposure by fourfold can prevent a defendant from making an informed choice, particularly when counsel uses that mistaken exposure to urge acceptance of a plea.
It also signals that courts reviewing plea-withdrawal motions must examine the full record—including a defendant’s resistance to pleading, the circumstances of acceptance, and later efforts to withdraw—when determining whether correct advice likely would have changed the plea decision.