            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                             COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   March 21, 2019
               Plaintiff-Appellee,

v                                                                  No. 340195
                                                                   Ogemaw Circuit Court
ROBERT CECIL BURR II,                                              LC No. 15-004517-FH

               Defendant-Appellant.


Before: M. J. KELLY, P.J., and SERVITTO and BOONSTRA, JJ.

BOONSTRA, J. (dissenting).

       I respectfully dissent. In my view, the trial court correctly denied defendant’s motion to
withdraw his plea because defendant received the benefit of his bargain and, like the defendant in
People v Wiley, waived appellate review of his sentence. People v Wiley, 472 Mich 153, 154;
693 NW2d 800 (2005).

        At the plea hearing, the parties stipulated that defendant would be sentenced to a
minimum sentence in the range of 78 to 130 months. He stated at sentencing that he did not have
any challenges to the assessing of the guidelines, and he was sentenced within the agreed-upon
guidelines range. I see nothing in the record to indicate that defendant agreed, explicitly or
implicitly, to be sentenced “within an accurately scored guidelines range,” as the majority holds.
Rather, defendant agreed to be sentenced within a specified range, in return for certain
considerations, including the dismissal of a third habitual offender notice and the dismissal of a
charge in another case. Defendant received those considerations and was sentenced within the
specified range to which he had agreed. See People v Killebrew, 416 Mich 189, 200; 330 NW2d
834 (1982). He therefore waived appellate review of his sentence. Wiley, 472 Mich at 154.1



1
 Defendant has therefore also waived his challenges to the scoring of offense variables and the
accuracy of the information relied upon by the trial court, as well as his challenge to the
proportionality of his sentence. Wiley, 472 Mich at 154.



                                               -1-
         Moreover, I find both People v Smith, 319 Mich App 1; 900 NW2d 108 (2017), (on
which the majority relies) and People v Price, 477 Mich 1, 3-6; 723 NW2d 201 (2006), (on
which Smith relied) to be distinguishable. Although in Smith there appears to have been an
initial agreement regarding the applicable guidelines range, it was later determined that the range
was inconsistent with the sentencing information report (SIR) on which defendant’s sentence
was based. That is, the prosecution, defense counsel, and the trial court all were operating based
upon misinformation, the genesis of which was never explained.2

        It was in that context that the Smith Court explicitly noted that the parties’ had referred to
the plea agreement as a “guidelines sentencing agreement” calling for a sentence “on the low end
of the guidelines.” It additionally noted that the prosecutor who appeared for the sentencing
denied that there was any “stipulation to the low end of the guidelines” (agreeing only “that it is
a guideline sentence agreement”) but that defense counsel had responded that “there was an
agreement that it would be the low end of the guidelines.” See Smith, 319 Mich App at 4. The
Smith Court concluded under those circumstances that “[i]n this case, defendant did not agree to
a specific sentence.”3 That is not the case here; in this case, defendant agreed to a specific
guidelines range (which was supported by the SIR) and was sentenced within it as agreed.

       Moreover, Smith and Price (unlike this case) both involved Cobbs4 agreements. A Cobbs
agreement is one in which a defendant enters a plea agreement in reliance on statements from the
sentencing court; that is, the court “may state on the record the length of the sentence that, on the
basis of the information then available to the judge, appears to be appropriate for the charged
offense.” People v Cobbs, 443 Mich 276, 283; 505 NW2d 208 (2001). If the court, in the
exercise of its sentencing discretion, later determines that it cannot abide by its initial
determination in sentencing defendant, the court must then give the defendant an opportunity to
withdraw his plea. Id. at 283.




2
  The prosecution and defense counsel in Smith initially agreed that the applicable guidelines
range was 126 to 210 months’ imprisonment. The trial court accordingly sentenced the
defendant to a minimum prison term of 126 months. Subsequently, defendant moved for
resentencing based on the fact that the SIR reflected a guidelines range of 81 to 135 months’
imprisonment (and arguing that the trial court had failed to ask him before sentencing whether he
was given an opportunity to review the presentence investigation report). The trial court denied
defendant’s motion for resentencing, indicating that the minimum sentence imposed (126
months) fell within the guidelines range (of 126 to 210 months) that it had calculated, but it
failed to explain how it had calculated that apparently errant guidelines range. Smith, 319 Mich
App at 4-5.
3
  Similarly in Price, there was no agreement to a specific sentence; rather, the trial court agreed
to sentence defendant “within the appropriate statutory guidelines range” if he pleaded guilty.
See Price, 477 Mich at 3.
4
    People v Cobbs, 443 Mich 276, 505 NW2d 208 (1993).


                                                 -2-
       Here, there was no Cobbs agreement; nor did the trial court make any preliminary
sentencing determinations that it later declined to follow. Rather, the trial court merely accepted
the sentencing agreement of the parties and sentenced defendant according to that agreement.
See People v Killebrew, 416 Mich 189, 205; 330 NW2d 834 (1982). I would hold that defendant
received the benefit of his bargain, notwithstanding his later apparent dissatisfaction with it, and
I would therefore affirm the trial court’s denial of defendant’s motion to withdraw his plea. See
Wiley, 472 Mich at 154.5

       For these reasons, I would affirm.



                                                             /s/ Mark T. Boonstra




5
  Additionally, I would hold that defendant’s argument concerning the trial court’s alleged failure
to appoint appellate counsel is moot because defendant has been appointed appellate counsel and
has appealed his resentencing. See People v Cathey, 261 Mich App 506, 510; 681 NW2d 661
(2004) (“An issue is moot when an event occurs that renders it impossible for the reviewing
court to fashion a remedy to the controversy.”) Moreover, to the extent that defendant argues
that he was denied appointed counsel at his motion for resentencing, the record is clear that
defendant chose to waive his right to counsel rather than adjourn the proceedings so that counsel
could be appointed, and I would not grant defendant any relief on that basis. See
MCR 6.005(D).




                                                -3-
