                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   FOR PUBLICATION
                                                                   October 23, 2014
              Plaintiff-Appellee,                                  9:20 a.m.

v                                                                  No. 315579
                                                                   Oakland Circuit Court
RICKEY WHITE                                                       LC No. 2012-242010-FH

              Defendant-Appellant.


Before: BOONSTRA, P.J., and MARKEY and K. F. KELLY, JJ.

BOONSTRA, P.J.

        Defendant appeals by delayed leave granted1 his guilty plea convictions of two counts of
obtaining money by false pretenses with intent to defraud, $1,000 or more but less than $20,000,
MCL 750.218(4), and one count of conducting a criminal enterprise, MCL 750.159i(1). The trial
court sentenced defendant as a habitual offender (fourth offense), MCL 769.12, to concurrent
prison terms of 280 months to 40 years for the criminal enterprise conviction, and 3 months to 30
years each for the false pretenses convictions. Defendant was also ordered to pay restitution in
the amount of $283,245. We affirm.

                  I. PERTINENT FACTS AND PROCEDURAL HISTORY

       Between 2009 and 2011, defendant, through a company identified as Braunstein &
Associates, represented that he could assist struggling homeowners with mortgage modification.
Defendant charged an upfront fee and promised a full money-back guarantee. Defendant
allegedly represented that there were attorneys on staff to review and assist in preparing loan
modification proposals to banks.        Apparently, defendant employed no attorneys, and
modification proposals were either incomplete or never submitted to the banks.

       The Attorney General initiated an investigation of defendant’s activities and negotiated
with defendant for nearly a year. Before charges were formally filed, defendant and the Attorney
General’s office reached an agreement whereby defendant would pay $2,000 per week in


1
 People v White, unpublished order of the Court of Appeals, issued January 9, 2014 (Docket No.
315579).


                                               -1-
restitution. Pursuant to this agreement, defendant paid approximately $10,000 in restitution, but
then stopped making the required payments. As a result, defendant was formally charged with
one count of operating a criminal enterprise and two counts of false pretenses, $1,000 or more
but less than $20,000.

         Defendant pleaded guilty to the charged offenses and received a sentence evaluation from
the trial court pursuant to People v Cobbs, 443 Mich 276; 505 NW2d 208 (1993). The trial court
agreed to delay sentencing for 60 days; if defendant paid partial restitution in the amount of
$20,000, the trial court would further delay sentencing for an additional 90 days, and if defendant
paid an additional $20,000 in restitution during that time period, the trial court stated that it
would continue to delay the sentence up to the statutory maximum of 11 months, and, if
defendant met all criteria imposed by the court, it would sentence defendant to a minimum
sentence that would not exceed the bottom third of the recommended guidelines range.

        Defendant failed to make the first $20,000 payment. At the time of sentencing, the trial
court declined to sentence defendant in accordance with the Cobbs evaluation and imposed a
higher sentence. The court found that it was not bound by the preliminary sentence evaluation in
light of defendant’s failure to make the agree-upon restitution payment. The court further
rejected defendant’s claim that he should be permitted to withdraw his plea because he was
denied the effective assistance of counsel and his plea was not voluntarily made. The trial court
also denied defendant’s request for an evidentiary hearing. We find no errors requiring reversal.

                 II. DENIAL OF REQUEST FOR EVIDENTIARY HEARING

        For his first claim of error, defendant argues that the trial court abused its discretion when
it denied his request for an evidentiary hearing regarding the voluntariness of his plea and the
effectiveness of his trial counsel. We are precluded from granting defendant any relief in this
regard. In an order dated May 14, 2014, a panel of this Court, considering the same issues,
denied defendant’s motion to remand.2 That decision is now the law of the case. People v
Hayden, 132 Mich App 273, 297; 348 NW2d 672 (1984). If defendant disagreed with the
motion panel’s decision, he should have filed a motion for rehearing before that panel or an
application for leave to appeal that decision to the Supreme Court. People v Douglas, 122 Mich
App 526, 529; 332 NW2d 521 (1983).

        Even if we were to consider this issue, however, we would conclude that the trial court
did not abuse its discretion when it denied defendant’s request for an evidentiary hearing. A trial
court’s denial of a request for an evidentiary hearing is reviewed for an abuse of discretion.
People v Unger, 278 Mich App 210, 216; 749 NW2d 272 (2008). An abuse of discretion occurs
when a court chooses an outcome that falls outside the range of reasonable and principled
outcomes. People v Mahone, 294 Mich App 208, 212; 816 NW2d 436 (2011).




2
 People v White, unpublished order of the Court of Appeal, entered March 14, 2014 (Docket No.
315579)(emphasis added).


                                                 -2-
        In support of his request for an evidentiary hearing, defendant provided his own affidavit
and that of his aunt and uncle. The affidavits essentially state that defendant’s counsel pressured
defendant into entering a plea, that counsel was unprepared, and that counsel did not advise
defendant of the charges against him or any possible defenses. At the time of the plea, however,
defendant was sworn and testified that he was satisfied with the advice given by his counsel.
The court also specifically explained the charges and the possible sentences. Defendant stated
that it was his own choice to plead guilty and that there were no promises, threats, or
inducements compelling him to tender the plea. Moreover, the fact that defendant had been
represented for nearly a year by prior counsel during pre-charge negotiations with the Attorney
General’s office, and that he had at one time begun restitution payments, belies any assertion that
he did not know the nature of the charges against him or any possible defenses. The statements
made in defendant’s affidavit directly contradict his testimony at the plea hearing. The trial court
denied defendant’s request for an evidentiary hearing because it found that, under the
circumstances, granting an evidentiary hearing where defendant presumably would provide
testimony inconsistent with his prior testimony would be against public policy. The trial court
noted: “After all, the Defendant swore under oath to this Court to a certain state of affairs, and to
now allow him to attack his own sworn testimony would allow him to benefit from perjury
(either at the plea or in his affidavit) as well as to countenance a fraud upon the Court.”

       In reaching its conclusion, the trial court relied on this Court’s decision in People v Serr,
73 Mich App 19, 25-26, 28; 250 NW2d 535 (1976). In that case, the defendant sought to
withdraw his guilty plea as not knowing and voluntary. This Court found that where a plea is
entered consistent with the applicable court rules, a trial court is barred from considering
testimony or affidavits inconsistent with statements made during the plea. This Court held:

               It is the opinion of this court that where a defendant has been found guilty
       by reason of his own statements as to all of the elements required to be inquired
       into by GCR 1963, 785.7, and his attorney has also confirmed the agreement and
       the defendant has been sentenced, neither he nor his attorney will be permitted
       thereafter to offer their own testimony to deny the truth of their statements made
       to induce the court to act. To do so would be to permit the use of its own process
       to create what amounts to a fraud upon the court. This is based on public policy
       designed to protect the judicial process. [Id. at 28.]

We conclude that because defendant’s offer of proof, i.e., his own affidavit, is inconsistent with
defendant’s own testimony during the plea hearing, the trial court did not abuse its discretion
when it denied defendant’s request for an evidentiary hearing.

                       III. INEFFECTIVE ASSISTANCE OF COUNSEL

        Defendant next argues that he should have been permitted to withdraw his guilty plea
because he was denied the effective assistance of counsel. Defendant argues that his trial
counsel failed to explain the nature of his charges and possible defenses, and that he pressured
defendant into accepting the plea. We disagree that defendant was denied the effective
assistance of counsel.
        When ineffective assistance of counsel is claimed in the context of a guilty plea, the
relevant inquiry is whether the defendant tendered the plea voluntarily and understandingly.

                                                -3-
People v Armisted, 295 Mich App 32, 48; 811 NW2d 47 (2011). Guilty pleas have been deemed
involuntary or unknowing where defense counsel fails to explain adequately the nature of the
charges. People v Corteway, 212 Mich App 442; 538 NW2d 60 (1995). Guilty pleas have also
been found to be involuntary where counsel fails to explain possible defenses to the charges.
People v Fonville, 291 Mich App 363; 804 NW2d 878 (2011). Under those circumstances, a
defendant has been denied the effective assistance of counsel because he has been deprived of
the ability to make an intelligent and informed decision regarding his options. Corteway, 212
Mich App at 445.

        Defendant testified at the plea proceeding that he fully understood the plea and the
sentencing evaluation, that he was satisfied with his legal advice, and that he was not under any
pressure to tender the guilty plea. Defendant’s contradictory affidavit is insufficient to contradict
his sworn testimony in open court. Armisted, 295 Mich App at 49. The record below indicates
that defendant knowingly and voluntarily accepted the plea agreement.

        Further, defendant has not established that he had a viable defense of which defense
counsel failed to advise him. Defendant devotes a great deal of his brief on appeal to explaining
that he operated a legitimate business that processed loan modification applications under the
Home Affordable Modification Program. Defendant represents that the banks and other lenders
as a whole did not live up to their obligations under the program. Thus, apparently, the defense
that defendant was deprived of asserting was that struggling homeowners suffered financial
losses simply because the financial institutions set up roadblocks for individuals seeking relief
under the program. We conclude that defendant has not articulated a viable defense. This
defense does not even address the charges that defendant misrepresented to his customers that he
had attorneys on staff to prepare and present modification proposals. This defense further does
not address the charge that the applications were incomplete or, indeed, never even submitted to
the program. Considering this, defendant has not established that his plea was unknowing and
involuntary because his counsel failed to advise him of a viable defense.

                   IV. SENTENCE IN EXCESS OF COBBS EVALUATION

       Finally, defendant argues that he was entitled to withdraw his plea because the sentence
imposed exceeded the court’s preliminary evaluation under Cobbs. We disagree. A decision on
a motion to withdraw a plea after sentencing is reviewed for an abuse of discretion. People v
Brown, 492 Mich 684, 688; 822 NW2d 208 (2012).

       Before the entry of his plea, the trial court provided a preliminary sentencing evaluation
pursuant to Cobbs. In Cobbs, the Supreme Court held that a trial court may participate in
sentencing discussions at the request of a party but not on the judge’s own initiative. Within
these parameters, “a judge may state on the record the length of sentence that, on the basis of the
information then available to the judge, appears to be appropriate for the charged offense.”
Cobbs, 443 Mich at 283 (emphasis in original). Defendant relies on the following language from
Cobbs in support of his assertion that he was entitled to withdraw his plea when the court
sentenced defendant inconsistent with the preliminary evaluation:

       However, a defendant who pleads guilty or nolo contendere in reliance upon a
       judge’s preliminary evaluation with regard to an appropriate sentence has an

                                                -4-
       absolute right to withdraw the plea if the judge later determines that the sentence
       must exceed the preliminary evaluation. [Id.]

Defendant’s reliance on this language is misplaced.
        In People v Kean, 204 Mich App 533; 516 NW2d 128 (1994), this Court held that the
defendant was not entitled to the benefit of a plea bargain that included a prosecutor’s sentencing
recommendation, and the trial court was not required to afford the defendant an opportunity to
withdraw his plea, where the defendant violated a specific condition of the plea agreement. Id. at
535-536. See also People v Abrams, 204 Mich App 667, 672; 516 NW2d 80 (1994), and People
v Garvin, 159 Mich App 38, 40; 406 NW2d 469 (1987). This Court reasoned that when the
defendant walked away from a treatment program and failed to turn himself in, he had violated
the plea agreement and was not entitled to the benefit of the bargain. Kean, 204 Mich App 535-
536. Although Kean involved a sentencing recommendation, not a Cobbs evaluation, the
rationale is equally applicable to cases involving a Cobbs plea.

        In this case, defendant violated a precondition of the plea and Cobbs evaluation: he
failed to timely make the agreed-upon $20,000 restitution payment. Thus, defendant is not
entitled to the benefit of his bargain. Further, the trial court was not bound by the preliminary
sentencing evaluation, and it was not required to afford defendant an opportunity to withdraw his
plea. Kean, 204 Mich App at 535-536.

        Perhaps in anticipation of this conclusion, defendant argues that making the restitution
payment was not a specific precondition of the sentencing evaluation. Defendant argues that the
only preconditions identified by the court were related to his compliance with the terms of his
bond. He further submits that his failure to make the restitution payment was, therefore, not a
violation of the sentencing agreement. Defendant then concludes that because the trial court
failed to sentence him in accordance with the sentencing evaluation, he had an absolute right to
withdraw his plea. However, defendant has selectively quoted from the court’s colloquy and has
taken statements out of context. Defendant relies on the following statements made by the court:

               THE COURT:         Do you understand that I’m making the Cobbs
       representation with regard to you subject to the pre-conditions that you abide by
       all the conditions and terms of your bond, that you timely appear for your
       presentence interview and your sentencing and your delay of sentencings [sic],
       and you do not test positive for drugs and you do not engage in criminal behavior
       prior to sentencing.

               MR. WHITE: Yes your Honor.

              THE COURT: And do you agree that if any of those preconditions to the
       Cobbs representation are violated that you waive the right to withdraw your plea
       and that I will not be bound by the Cobbs representation?

        Only mere seconds before the trial court made these statements, it made perfectly clear
that making the 20,000 restitution payment was a precondition of the Cobbs evaluation. The
court stated:

                                                -5-
               Okay. With regard to you as an individual, I have made a representation
       to you that pursuant to People v Cobbs that if you were to plead guilty today that I
       would agree to the following: that we would wait 60 days, approximately 60 days
       for your sentence in this case, and If you pay $20,000.00 of restitution at the time
       of sentencing I would then further delay the sentence for an additional 90 days. If
       you paid an additional $20,000.00 at that time I would continue the delayed
       sentence up to the statutory maximum of approximately 11 months, at which time
       I would sentence you. And if you meet those criteria up to the time of the delayed
       sentence and follow all the other conditions I impose on you in connection with
       the delay of sentence, than any sentence that you would receive would not exceed
       the bottom one-third of the guideline range.

         Reading the court’s statements in their entirety, it is clear that the timely making of the
initial $20,000 restitution payment was a specific precondition of the Cobbs evaluation. Because
defendant failed to comply with a precondition, the trial court was not bound by the preliminary
sentence evaluation, and defendant was not entitled to an opportunity to withdraw his plea.
Kean, 204 Mich App at 535-536.

       Affirmed.

                                                             /s/ Mark T. Boonstra
                                                             /s/ Jane E. Markey
                                                             /s/ Kirsten Frank Kelly




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