Court: Michigan Court of Appeals ( Unpublished Opinion )
Judges: Per Curiam - Gleicher and Shapiro; Concurrence - Jansen
Sentencing pursuant to a plea agreement; People v. Cobbs; MCR 6.310(B)(2)(b), (C), & (D); People v. Armisted; Order mandating the repayment of attorney fees; People v. Jackson; MCL 769.1l
The court concluded that the trial court did not comply with the requirements of MCR 6.310(B)(2)(b) when it sentenced the defendant contrary to the terms of a Cobbsagreement and did not give him an opportunity to withdraw his plea. However, he could not raise the issue on appeal because he failed to first do so in the trial court as required by MCR 6.310(D). His appeal as to the order mandating the repayment of attorney fees was premature and he was “not entitled to an ability-to-pay assessment at this time.” He entered a no-contest plea to CSC III and IV pursuant to a Cobbs agreement that provided he “would be sentenced to the lower third of the recommended sentencing guidelines range.” His guidelines range was 57 to 95 months. The trial court sentenced him to a minimum of 95 months. The court noted that the “plain language of the court rule mandates that the trial court give a defendant the opportunity to affirm or withdraw his or her plea if the trial court made a sentencing agreement and then stated that it was unable to sentence the defendant according to that agreement.” Thus, when the trial court “sentenced defendant contrary to the Cobbs agreement and did not affirmatively provide” him the opportunity to withdraw his plea, it “did not comply with the mandates of the court rule.
Contrary to the prosecution’s argument, the opportunity provided under MCR 6.310(B)(2)(b) is not merely the right to object to actions of the trial court.” Rather, in cases where the trial court fails to comply with a Cobbs sentencing agreement, it has “an affirmative duty to inquire whether the defendant wishes to withdraw his plea in light of” its decision not to abide by the sentencing agreement. Under MCR 6.310(C), “a defendant may move to withdraw his plea within six months after sentencing or move for relief from judgment according to the procedures set forth in MCR 6.500 et seq.” Defendant did neither. Thus, the court could “not now rule on the issue.”