            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,                                    FOR PUBLICATION
                                                                    February 14, 2019
               Plaintiff-Appellee,                                  9:00 a.m.

v                                                                   No. 342419
                                                                    Macomb Circuit Court
PETER THOMAS BRINKEY,                                               LC No. 2016-004316-FH

               Defendant-Appellant.


Before: SWARTZLE, P.J., and MARKEY and RONAYNE KRAUSE JJ.


SWARTZLE, P.J.

        For a valid plea agreement, it is axiomatic that there must be an actual agreement on the
essential features of the plea. When there are multiple proposed plea agreements and hearings,
as here, reference to a “prior plea” will likely be ambiguous and require some clarification on the
record, unlike as here. Defendant, Peter Thomas Brinkey, pleaded guilty to several driving-
related offenses, but the record confirms a lack of clarity with regard to essential sentencing
features. As explained below, we reverse and remand for further proceedings.

                                       I. BACKGROUND



        Defendant appeals by leave granted1 his guilty plea convictions of operating while
intoxicated (OWI), third offense, MCL 257.625(1); driving while license suspended (DWLS),
second offense, MCL 257.904(1); and unlawful use of a license plate, MCL 257.256. The trial
court sentenced defendant, as a fourth-offense habitual offender, MCL 769.12, to 2 to 25 years of




1
 People v Brinkey, unpublished order of the Court of Appeals, entered April 9, 2018 (Docket
No. 342419).
imprisonment for the OWI conviction and one day, time served, for the DWLS and unlawful use
of a license plate convictions.

        Defendant does not contest any aspect of his first guilty plea on January 4, 2017, and at
the first plea hearing both defendant’s attorney and the prosecution stated that they believed all
the requirements of MCR 6.302 had been met. At the first plea hearing, defendant pleaded guilty
and the trial court told defendant that if the court was not going to comply with the sentence
recommendation in his presentence investigation report (PSIR), the court would permit
defendant to withdraw his guilty plea (the original agreement). After informing defendant that it
would not comply with the sentence recommendation in his PSIR, the trial court permitted
defendant to withdraw his guilty plea at the first sentencing hearing on April 20, 2017.

        At the May 10, 2017 pretrial hearing, the trial court stated that the parties and the trial
court had agreed to a Cobbs2 agreement that the trial court referred to as a “Cobbs cap.” The
trial court informed defendant that the Cobbs cap would prevent defendant’s minimum sentence
from exceeding two years. Defendant then pleaded guilty at the second plea hearing on June 7,
2017. At the second plea hearing, however, the trial court simply asked defendant if he
“want[ed] to reinstate [his] prior plea.” Defendant responded, “Yes, with the understanding that
I could get an updated PSI” and the trial court agreed that defendant could get a new PSIR. At
no point after the first plea hearing did the trial court ever inform defendant of his rights again
and, importantly, at the second plea hearing the phrase “prior plea” was never defined. There
was also no discussion at the second plea hearing about the Cobbs cap.

       At the second sentencing hearing on June 27, 2017, as soon as the trial court issued
defendant’s sentence, defendant stated that he wanted to withdraw his plea because the trial court
“didn’t agree with the sentence, with the recommendation.” When the trial court stated that
defendant requested a two-year Cobbs agreement, defendant replied that he “never pled guilty to
this.” The trial court disagreed and denied defendant’s subsequent motion to withdraw. This
appeal followed.

                                         II. ANALYSIS

        On appeal, defendant argues that the trial court abused its discretion by denying his
motion to withdraw his guilty plea. This Court reviews for abuse of discretion a trial court’s
ruling on a motion to withdraw a plea. People v Pointer-Bey, 321 Mich App 609, 615; 909
NW2d 523 (2017). “A trial court abuses its discretion when its decision falls outside the range
of reasonable and principled outcomes.” Id. (cleaned up). Furthermore, this Court reviews the
interpretation of court rules de novo. People v Blanton, 317 Mich App 107, 117; 894 NW2d 613
(2016).




2
    People v Cobbs, 443 Mich 276; 505 NW2d 208 (1993).


                                                -2-
                                   A. PLEA AGREEMENTS

        While there is “no absolute right to withdraw a guilty plea once the trial court has
accepted it,” a defendant, “may move to have his or her plea set aside on the basis of an error in
the plea proceedings.” Pointer-Bey, 321 Mich App at 615 (cleaned up). “[A] motion to
withdraw a guilty plea after sentencing is governed by MCR 6.310(C).” Blanton, 317 Mich App
at 118. In relevant part, MCR 6.310(C)(4) states:

               If the trial court determines that there was an error in the plea proceeding
       that would entitle the defendant to have the plea set aside, the court must give the
       advice or make the inquiries necessary to rectify the error and then give the
       defendant the opportunity to elect to allow the plea and sentence to stand or to
       withdraw the plea. If the defendant elects to allow the plea and sentence to stand,
       the additional advice given and inquiries made become part of the plea proceeding
       for the purposes of further proceedings, including appeals.

“In other words, under MCR 6.310(C), a defendant seeking to withdraw his or her plea after
sentencing must demonstrate a defect in the plea-taking process.” Blanton, 317 Mich App at 118
(cleaned up).

       “Guilty- and no-contest-plea proceedings are governed by MCR 6.302.” People v Cole,
491 Mich 325, 330; 817 NW2d 497 (2012). Strict compliance with MCR 6.302 is not essential.
People v Plumaj, 284 Mich App 645, 649; 773 NW2d 763 (2009). Our Supreme Court has
adopted a doctrine of substantial compliance, and whether a particular departure from the
requirements of MCR 6.302 justifies or requires reversal depends on the nature of the
noncompliance. Id. Automatic invalidation of a plea due to a violation of MCR 6.302 is only
required if the defendant establishes “that the waiver was neither understandingly nor voluntarily
made, not merely that the trial court failed to strictly comply with MCR 6.402(B).” Id. at 651
(cleaned up).

               To ensure that a guilty plea is accurate, the trial court must establish a
       factual basis for the plea. In order for a plea to be voluntary and understanding,
       the defendant must be fully aware of the direct consequences of the plea. The
       penalty to be imposed is the most obvious direct consequence of a conviction.
       Therefore, MCR 6.302(B)(2) requires the trial court to advise a defendant, prior to
       the defendant’s entering a plea, of the maximum possible sentence for the offense
       and any mandatory minimum sentence required by law. [Pointer-Bey, 321 Mich
       App at 616 (cleaned up).]

“[B]ecause the understanding, voluntary, and accurate components of MCR 6.302(A) are
premised on the requirements of constitutional due process, a trial court may, in certain
circumstances, be required to inform a defendant about facts not explicitly required by MCR
6.302.” Blanton, 317 Mich App at 119 (cleaned up). Furthermore, “[w]hen a defendant is not
fully informed about the penalties to be imposed, there is a clear defect in the plea proceedings
because the defendant is unable to make an understanding plea under MCR 6.302(B).” Id.
(cleaned up). Finally, “[a] plea that is not voluntary and understanding violates the state and
federal Due Process Clauses.” Id. (cleaned up).

                                               -3-
       Cobbs agreements, when made, are related to guilty pleas. A Cobbs agreement is an
agreement in which a defendant agrees to plead guilty in reliance on the trial court’s preliminary
evaluation of the sentence to be imposed. Cobbs, 443 Mich at 283. Under a Cobbs agreement a
defendant is permitted to withdraw his or her guilty plea “in the event that the trial court
determines that it must exceed the preliminary evaluation.” People v Fonville, 291 Mich App
363, 369 n 3; 804 NW2d 878 (2011). MCR 6.302 is silent on Cobbs agreements. See MCR
6.302.

         In Plumaj, 284 Mich App at 649, this Court established that strict compliance with MCR
6.302 is not essential. Specifically, Plumaj dealt with a defendant who pleaded guilty and nolo
contendere to multiple offenses. Id. at 646-647. At the plea hearing, the trial court did not place
the defendant under oath. Relying on this error, the defendant moved to withdraw his pleas. Id.
at 647. The trial court granted the defendant’s motion and set aside his pleas because the
defendant was not placed under oath at his plea hearing. Id. at 647. This Court reversed, holding
that strict compliance with MCR 6.302 is not essential to ensure the validity of a plea and that,
while the oath requirement is an aspect of MCR 6.302, the analysis of whether a plea should be
set aside should instead hinge on “the nature of the noncompliance” and on whether the
defendant’s plea was “understandingly, knowingly, voluntarily, and accurately made.” Id. at
649, 651-652. Thus, in Plumaj, this Court held that, although strict compliance with MCR 6.302
is not essential, a defendant’s plea must always be understanding, voluntary, and accurate.

        In People v Kosecki, 73 Mich App 293; 251 NW2d 283 (1977), the defendant pleaded
guilty on March 7, 1975, and was subsequently permitted to withdraw his guilty plea on the day
of sentencing, March 21, 1975. Id. at 294. The defendant withdrew his guilty plea because the
defendant’s attorney had doubts that a factual basis to support the defendant’s plea had been
established at the original plea taking. Id. Later that same day, however, the defendant
requested to reinstate his guilty plea. Id. On appeal, the defendant sought to withdraw his
second guilty plea, arguing that he was not properly informed of his constitutional rights when he
made his second guilty plea. Id. at 297. This Court noted, however, that the defendant admitted
and the record confirmed that the defendant was properly informed of his constitutional rights
when he made his first guilty plea on March 7, 1975. Id. Importantly, while the trial court “did
not again go through the rights waived before accepting defendant’s retendered plea, defendant’s
counsel stated, with defendant’s agreement, that he had gone over these rights a number of times
with defendant.” Id. Because only two weeks had passed between the defendant’s first and
second guilty pleas, there was “no indication that defendant offered his original plea in ignorance
of its consequences.” Id. at 298. Accordingly, this Court affirmed the defendant’s plea-based
conviction. Id.

                     B. CONFUSION APPARENT FROM THE RECORD

        As in both Plumaj and Kosecki, defendant initially pleaded guilty before the trial court
permitted him to withdraw his guilty plea. Unlike Plumaj and Kosecki, however, defendant’s
first guilty plea was controlled by the original plea agreement while, at least in the trial court’s
opinion, his second guilty plea was controlled by the Cobbs agreement. Although the trial court
clarified the terms of the Cobbs agreement when defendant chose to reinstate his “prior plea” at
the second plea hearing, what defendant and the trial court each meant by the phrase “prior plea”
was never addressed. Furthermore, at the second plea hearing the trial court also failed to inform

                                                -4-
defendant of his rights, as it had properly done at the first plea hearing. Thus, like in Plumaj, the
trial court failed to comply strictly with the requirements of MCR 6.302. Because strict
compliance with MCR 6.302 is not essential, however, whether defendant’s second guilty plea
should be set aside hinges on the nature of the trial court’s noncompliance with the requirements
of the court rule and whether defendant’s second guilty plea was understandingly, knowingly,
voluntarily, and accurately made. See Plumaj, 284 Mich App at 649-652.

        While Kosecki can provide guidance here, it differs in one crucial aspect from this case.
In Kosecki the sentencing conditions to which the defendant agreed did not change between his
first and second guilty pleas. In contrast, when defendant in this case initially pleaded guilty it
was under the original agreement; when defendant pleaded guilty the second time, the trial
court’s understanding was that the original agreement had no effect on defendant’s second guilty
plea and that the Cobbs cap controlled the terms of defendant’s second guilty plea. The trial
court failed to ensure that defendant knew that the Cobbs cap, not the original agreement,
controlled his sentence after his second guilty plea. Thus, this case differs from Kosecki because,
while in Kosecki the defendant argued that he did not know the rights he was waiving by
pleading guilty, here defendant argues that he did not know the conditions under which he
pleaded guilty.

        Defendant’s confusion concerning the conditions under which he pleaded guilty is
apparent from a review of the record. While the trial court clearly outlined the circumstances of
the Cobbs cap at the pretrial hearing, no such clarity was provided at the second plea hearing. At
the second plea hearing, the trial court simply asked defendant if he wished to reinstate his “prior
plea.” Although the trial court never explained what it meant by “prior plea,” defendant’s
understanding of “prior plea” is apparent from his response. As soon as the trial court issued
defendant’s sentence, defendant stated that he wanted to withdraw his plea because the trial court
“didn’t agree with the sentence, with the recommendation.” When the trial court stated that
defendant requested the Cobbs cap, defendant replied that he “never pled guilty to this.” Thus, it
does not appear that defendant was fully aware of the direct consequences of his second guilty
plea and, therefore, defendant’s second guilty plea was not understandingly, knowingly,
voluntarily, and accurately made. See Pointer-Bey, 321 Mich App at 616. Furthermore, the
nature of the trial court’s noncompliance is serious in nature in this case because it appears from
the record before us that the trial court made no effort to ensure that defendant actually knew and
understood that he was pleading guilty under the conditions established by the Cobbs cap instead
of the conditions of the original agreement. See Plumaj, 284 Mich App at 649. Because
defendant’s second guilty plea was not understandingly, knowingly, voluntarily, and accurately
made the trial court abused its discretion by denying defendant’s motion to withdraw his guilty
plea.




                                                 -5-
                                     III. CONCLUSION

       The record in this case shows a lack of clarity with respect to essential features of the
plea agreement, specifically the sentencing parameters. The trial court abused its discretion by
denying defendant’s motion to withdraw and, accordingly, we reverse and remand for
proceedings consistent with this opinion. We do not retain jurisdiction.



                                                           /s/ Brock A. Swartzle
                                                           /s/ Jane E. Markey
                                                           /s/ Amy Ronayne Krause




                                              -6-
