                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     March 22, 2016
                Plaintiff-Appellee,

v                                                                    No. 324311
                                                                     Macomb Circuit Court
ADAM HOWARD REAM,                                                    LC No. 2014-001991-FH

                Defendant-Appellant.


Before: GLEICHER, P.J., and JANSEN and SHAPIRO, JJ.

PER CURIAM.

        Defendant appeals by leave granted1 his no-contest plea to three counts of third-degree
criminal sexual conduct, MCL 750.520d(1), and one count of fourth-degree criminal sexual
conduct, MCL 750.520e(1). Defendant was sentenced to 95 months to 15 years’ imprisonment
for his third-degree criminal sexual conduct convictions, and one to two years’ imprisonment for
his fourth-degree criminal sexual conduct conviction. For the reasons stated in this opinion, we
affirm.

       This case arose from allegations that defendant sexually assaulted his two step-daughters.
While speaking to the police, defendant admitted sexual contact with the older girl, but denied it
with respect to the younger girl. Defendant pleaded guilty pursuant to a Cobbs2 agreement under
which defendant would be sentenced to the lower third of the recommended sentencing
guidelines range. After accepting defendant’s plea, the trial court stated that if it could not abide
by the Cobbs agreement after reading the presentence report it would give defendant the
opportunity to withdraw his plea.

        Defendant’s sentencing guidelines range was 57 to 95 months. Contrary to the Cobbs
agreement, instead of imposing a sentence within the lower third of the recommended guidelines
range, the trial court sentenced defendant to a minimum of 95 months’ imprisonment. Further,
contrary to the requirements of MCR 6.310(B)(2)(b), the trial court did not give defendant an


1
  People v Ream, unpublished order of the Court of Appeals, entered December 17, 2014
(Docket No. 324311).
2
    People v Cobbs, 443 Mich 276; 505 NW2d 208 (1993).



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opportunity to withdraw his plea. MCR 6.310(B)(2)(b) provides that a defendant is entitled to
withdraw a plea if:

               (b) the plea involves a statement by the court that it will sentence to a
       specified term or within a specified range, and the court states that it is unable to
       sentence as stated; the trial court shall provide the defendant the opportunity to
       affirm or withdraw the plea, but shall not state the sentence it intends to impose.
       [emphasis added.]

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
court sentenced defendant contrary to the Cobbs agreement and did not affirmatively provide
defendant the opportunity to withdraw his plea, the trial court 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. Instead, in cases
were the trial court fails to comply with a Cobbs sentencing agreement, the court has an
affirmative duty to inquire whether the defendant wishes to withdraw his plea in light of the
court’s decision not to abide by the sentencing agreement.

        However, defendant may not raise this issue on appeal unless he has first done so in the
trial court. MCR 6.310(D) provides:

              (D) A defendant convicted on the basis of a plea may not raise on appeal
       any claim of noncompliance with the requirements of the rules in this subchapter,
       or any other claim that the plea was not an understanding, voluntary, or accurate
       one, unless the defendant has moved to withdraw the plea in the trial court,
       raising as a basis for withdrawal the claim sought to be raised on appeal.
       [emphasis added.]

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. See People v Armisted, 295 Mich App 32, 48; 811 NW2d 47 (2011). In this case,
defendant has done neither. Accordingly, we may not now rule on the issue. MCR 6.310(D);
Armisted, 295 Mich App at 48.3

        Defendant also argues that pursuant to People v Jackson, 483 Mich 271; 769 NW2d 630
(2009), he has a constitutional right to an ability-to-pay hearing before the trial court can enforce
its order mandating repayment of attorney fees. In Jackson, our Supreme Court held an ability-
to-pay assessment is only constitutionally necessary when the order to pay the fee is enforced
and a defendant contests his ability to pay. Id. at 292. Then, when a trial court attempts to
enforce its reimbursement order under MCL 769.1k, the defendant must be advised of this


3
 Although we are not permitted to rule on the question, we agree with the observations made by
our concurring colleague regarding the defects in the plea proceeding.



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enforcement action and be given an opportunity to contest the enforcement on the basis of his
existing indigency. Id. The trial court must then evaluate “whether a defendant is indigent and
unable to pay at that time or whether forced payment would work a manifest hardship on the
defendant at that time.” Id. at 293 (emphasis in original). Moreover, the Jackson Court stated:

                 MCL 769.1l inherently calculates a prisoner’s general ability to pay and,
         in effect, creates a statutory presumption of nonindigency. The provision only
         allows the garnishment of a prisoner’s account if the balance exceeds $50.
         Although this amount would be insufficient to sustain a defendant living among
         the general populace, it is uncontested that a prisoner’s ‘living expenses’ are nil,
         as the prisoner is clothed, sheltered, fed, and has all his medical needs provided
         by the state. The funds left to the prisoner on a monthly basis are more than
         adequate to cover the prisoner’s other minimal expenses and obligations without
         causing manifest hardship. Thus, we conclude that § 1l’s application makes a
         legitimate presumption that the prisoner is not indigent. [Id. at 295.]

The Court added, however, that because the presumption of nonindigency in MCL 7691l is not
based on a “full individualized analysis of a prisoner’s indigency,” a prisoner who believes “that
his unique individual financial circumstances rebut § 1l’s presumption of nonindigency” may
“petition the court to reduce or eliminate the amount that the remittance order requires him to
pay.” Id. at 296. Here, the order of remittance tracks the language of MCL 769.1l.4
Accordingly, there is a presumption that defendant is not indigent. Defendant has not petitioned
the court to appraise it of any financial circumstances unique to his case that would rebut that



4
    MCL 769.1l provides in pertinent part:

                 If a prisoner under the jurisdiction of the department of corrections has
         been ordered to pay any sum of money as described in section 1k and the
         department of corrections receives an order from the court on a form prescribed
         by the state court administrative office, the department of corrections shall deduct
         50% of the funds received by the prisoner in a month over $50.00 and promptly
         forward a payment to the court as provided in the order when the amount exceeds
         $100.00, or the entire amount if the prisoner is paroled, is transferred to
         community programs, or is discharged on the maximum sentence.

The order of remittance states the following:

                 2. For payment toward the obligation, the Department of Corrections shall
         collect 50% of all funds received by the defendant over $50.00 each month.

                3. If the amount withheld at any one time is $100.00 or less, the
         Department of Corrections shall continue collecting funds from the defendant’s
         prisoner account until the sum of the amounts collected exceeds $100.00, at which
         time the Department of Corrections shall remit that amount to this court[.]




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presumption. Accordingly, his appeal to this Court is premature and he is not entitled to an
ability-to-pay assessment at this time. See Jackson, 483 Mich at 296-297.

       Affirmed.



                                                        /s/ Elizabeth L. Gleicher
                                                        /s/ Douglas B. Shapiro




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