Defendant
was charged with felonious assault and weapons offenses arising out of a
dispute with his neighbor. At trial, rather than read aloud the jury
instructions on the elements of those crimes, the trial judge gave the jurors a
written copy of the elements. With regard to the crime of possession of a
firearm during commission of a felony (felony-firearm), the written packet
contained the elements of felony-firearm and set forth the definition of
possession. At defense counsel’s request, the judge supplemented the written
packet with verbal instructions on felony-firearm, which were still inaccurate.
Nonetheless, defense counsel expressed satisfaction with the instructions. The
Court of Appeals reversed in a split published opinion, holding that the trial
judge’s failure to read all of the jury instructions aloud constituted plain
error affecting defendant’s substantial rights. The majority also remanded for
an evidentiary hearing on defendant’s claim of ineffective assistance of
counsel due to counsel’s alleged failure to advise defendant properly about
whether to withdraw his guilty plea and proceed to trial. The dissenting judge
reasoned that defendant waived any instructional error and that defendant had
failed to establish the factual predicate for his claim of ineffective
assistance of counsel. The Supreme Court has directed oral argument on the
prosecuting attorney’s application for leave to appeal to address: (1) whether
the trial court erred by providing written instructions to the jury on the
elements of the charged offenses but not reading those instructions aloud to
the jury; (2) whether the trial court’s instructions on the charge of
felony-firearm fairly presented the issues to be tried and adequately protected
the defendant’s rights; (3) whether the defendant waived any instructional
errors when his attorney expressed satisfaction with the instructions as given,
see People v Kowalski, 489 Mich 488 (2011); (4) what standard of review this
Court should employ in reviewing the Court of Appeals decision to order an
evidentiary hearing on the ineffective assistance of counsel claim; and (5)
whether the Court of Appeals erred under the applicable standard when it
ordered an evidentiary hearing for defendant to establish the factual predicate
for his claim that his trial counsel was ineffective for failing to properly advise
him of the potential consequences of withdrawing his guilty plea. See MCR
7.211(C)(1)(a)(ii) and People v Ginther, 390 Mich 436, 445 (1973).