             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PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   February 5, 2019
                Plaintiff-Appellee,

v                                                                  No. 340024
                                                                   Wayne Circuit Court
LATOYIA ALICIA MURRAY,                                             LC No. 16-009410-01-FC

                Defendant-Appellant.


Before: K. F. KELLY, P.J., and RIORDAN and GADOLA, JJ.

PER CURIAM.

       Following a jury trial, defendant was convicted and sentenced to concurrent terms of 3½
to 20 years for carjacking, MCL 750.529a; 2 to 20 years for extortion, MCL 750.213; one to five
years for receiving or concealing stolen property, MCL 750.535(7); and one to five years for
unlawfully driving away a motor vehicle, MCL 750.413. Defendant appeals as of right on the
ground that the trial court erred in vacating defendant’s earlier guilty plea. We affirm.

        On February 21, 2017, defendant pleaded guilty to extortion and receiving or concealing
stolen property in exchange for the prosecution’s dismissal of the charges for carjacking and
unlawfully driving away a motor vehicle. The plea bargain included a Cobbs1 agreement
providing that the trial court would sentence defendant to six months in jail and three years of
probation. During the plea hearing, defendant admitted on the record that she maliciously
threatened to damage the victim’s property with the intention of extorting money from the victim
or causing him to take action against his will. She also admitted that she received into her
possession and concealed a motor vehicle, which she knew to have been stolen from the victim.
Given these admissions, the trial court accepted her plea.

       On April 10, 2017, defendant appeared before the trial court for sentencing in accordance
with the plea agreement. Before delivering the sentence, the trial court asked defendant whether


1
    People v Cobbs, 443 Mich 276; 505 NW2d 208 (1993).
there was anything she would like to say. Defendant responded by stating that she would “never
put [her]self in a situation like this,” was “going to jail for nothing,” and did not commit the
criminal acts underlying the charges. When the trial court questioned defendant regarding her
guilty plea, defendant stated that her attorney and the prosecutor scared her into accepting the
plea agreement by telling her that she would be sentenced to 50 to 100 years in prison if she was
found guilty at trial. The trial court then discussed with defendant how she wished to proceed:

              The Court: So you have two – you have an option here. You can
       withdraw your plea and we can go to trial. Is that what you want to do, go to
       trial?

              Defendant: I’ll go to trial

                                                * * *

                The Court: So you want to – you can withdraw your plea and we’re going
       to trial. I’m not going to – based on this, I’m not going to have the Defendant –
       you already pled guilty. Basically, we’re going to have to tell the victim and
       admit responsibility, so I’ll allow you to withdraw your plea and go back to the
       status quo. Okay?

              Defendant: Okay.

                                                * * *

              The Court: Is that your intention, to withdraw your plea?

              Defendant: Yes. Can I say one thing?

              The Court: No, no. Is that your intention to withdraw your plea?

              Defendant: Yes.

                                                * * *

              The Court: All right. We’ll set a trial date[.] And you do understand that
       I’m not going to Cobb’s [sic] this. Whether you go to trial or not – I mean
       whether or not there is an agreement, I’m not going to give you a Cobb’s [sic] at
       all. Do you understand that?

              Defendant: Yes.

              The Court: And it’s your intention to go forward with your trial?

              Defendant: Yes, sir.

Defendant proceeded to trial, was found guilty on all four counts, and was sentenced as indicated
above.


                                               -2-
        On appeal, defendant argues that the trial court erred in vacating her plea agreement
absent a formal motion made by defendant and absent defendant’s informed and unequivocal
consent. We disagree. This Court reviews a trial court’s ruling on a motion to withdraw a plea
for an abuse of discretion. People v Brown, 492 Mich 684, 688; 822 NW2d 208 (2012). A trial
court abuses its discretion when it reaches a decision falling outside the range of reasonable and
principled outcomes. People v Dixon-Bey, 321 Mich App 490, 496; 909 NW2d 458 (2017).

        Under MCR 6.310(B), a plea may be withdrawn before sentencing “on the defendant’s
motion or with the defendant’s consent only in the interest of justice” and only if withdrawal
would not substantially prejudice the prosecutor. Withdrawal of a plea is in the interest of justice
when a defendant is able to provide “a fair and just reason” for the withdrawal. People v
Fonville, 291 Mich App 363, 378; 804 NW2d 878 (2011). “Fair and just reasons include reasons
like a claim of actual innocence or a valid defense to the charge,” but do not include
dissatisfaction with the sentence or incorrect advice from defense counsel. Id. However,
“[n]otwithstanding a defendant’s protestations of innocence, a trial court may not vacate sua
sponte an accepted plea absent the defendant’s consent.” People v Strong, 213 Mich App 107,
112; 539 NW2d 736 (1995).

        Defendant contends that she neither made a formal motion to withdraw her guilty plea
nor gave her informed, unequivocal consent to vacate the plea. Defendant’s position is clearly
contradicted by the record. Initially, defendant’s statements on the record may reasonably be
construed as an oral motion to withdraw her plea. The trial court informed defendant that she
had the option to withdraw her plea and proceed with trial. When the trial court asked if that is
how defendant wished to proceed, she responded in the affirmative with, “I’ll go to trial.” The
trial court then explained a second time that it would permit defendant to withdraw her plea and
proceed with trial, and defendant responded, “Okay.” Thus, defendant plainly indicated that she
wished to withdraw her plea.

        Even assuming that defendant did not make an oral motion to withdraw her plea, she
repeatedly gave her unequivocal consent to set aside the plea and proceed with trial. See id. at
111 (holding that under MRC 6.310(B), a trial court may set aside an accepted guilty plea “on its
own motion and with the consent of the defendant.”). In addition to defendant’s statements
discussed above, the trial court asked defendant no less than three times whether it was her
intention to withdraw her plea and go forward with trial. Each time, defendant responded
affirmatively. Defendant claims that this consent was uninformed, as she had no opportunity to
consult with her attorney regarding the consequences of her decision, including the loss of the
plea and Cobbs agreements. This argument is undercut by the record. The trial court
specifically informed defendant that, as a result of withdrawing the plea, she would not be
sentenced in accordance with the Cobbs agreement and further asked defendant whether she
understood. Defendant indicated her understanding and again affirmed that it was her intention
to go forward with trial. Moreover, defendant had ample opportunity to consult with her
attorney, as he was present during the sentencing hearing. However, at no point did defendant
avail herself of this opportunity by requesting a recess to discuss matters with counsel.
Accordingly, the record demonstrates that defendant knowingly and unequivocally consented to
withdrawal of her plea.



                                                -3-
        The trial court’s decision to vacate defendant’s guilty plea was also in the interest of
justice, as defendant’s claim of innocence amounted to a “fair and just reason.” See Fonville,
291 Mich App at 378. Defendant contends that her claim of innocence was not an assertion of
“actual innocence” but rather was premised on her “mistaken understanding of innocence.”
Again, the record undermines defendant’s position. Not only did defendant state that she would
“never put [her]self in a situation like this,” and was “going to jail for nothing,” but she also
denied having committed the criminal acts charged. Specifically, defendant claimed that the
victim somehow tricked her, explaining, “[The victim] know[s] I didn’t drive his car and
understand about the extortion. He told me to come over there to meet up so he going to give me
[$]250. He took my money.” Given the fact that defendant denied the very conduct on which
the criminal charges were premised,2 and further maintained at trial that she “never committed
any of these crimes against [the victim],” there could be no mistake that she was asserting her
actual innocence. Finally, defendant argues that her explanation for pleading guilty – that her
attorney and the prosecutor scared her into doing so – does not constitute a fair and just reason
justifying withdrawal of her plea because she previously waived any claim that the plea was the
product of coercion or threats. This argument is unavailing. Although defendant offered this
background to explain why she initially pleaded guilty, the basis for withdrawing her plea was
her claimed innocence.

        It is noteworthy that defendant did not raise any objection to the withdrawal of her plea
until after she was convicted and sentenced on all four charges, suggesting buyer’s remorse
rather than any actual error. We decline to vacate defendant’s withdrawal of her plea merely
because she is now dissatisfied with the results following trial. We thus conclude that the trial
court did not abuse its discretion in vacating defendant’s plea before sentencing.

       Affirmed.



                                                           /s/ Kirsten Frank Kelly
                                                           /s/ Michael J. Riordan
                                                           /s/ Michael F. Gadola




2
  Defendant was accused of organizing an attack against the victim, a property manager, to
recover her payment to him of a $250 deposit for a rental property. While the victim was
speaking with defendant regarding the deposit, three men attacked him and stole his money and
car. Defendant allegedly contacted the victim to arrange a meeting to return his car if he
returned defendant’s deposit money. Defendant and her cohorts were apprehended at the
planned meeting place, where police also recovered the victim’s car.


                                               -4-
