             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    PEOPLE OF THE STATE OF MICHIGAN,                                UNPUBLISHED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 20, 2020
                 Plaintiff-Appellee,

    v                                                               Nos. 346047; 346050; 346052
                                                                    Calhoun Circuit Court
    EDWARD LEBRON GRIFFIN,                                          LC Nos. 2016-000232-FH;
                                                                            2016-000233-FH;
                                                                            2016-000234-FH
                 Defendant-Appellant.


Before: BORRELLO, P.J., and METER and RIORDAN, JJ.

PER CURIAM.

        Defendant, Edward Lebron Griffin, appeals by leave granted1 his no-contest plea to two
charges of delivery of methamphetamine, MCL 333.7401(2)(b)(i) and one charge of delivery of
less than 50 grams of cocaine, MCL 333.7401(2)(a)(iv). Defendant pleaded pursuant to a Cobbs2
agreement that he would receive a minimum sentence of not more than six years’ imprisonment
and his sentences would be concurrent. In accord with the agreement, the trial court sentenced
defendant as a third-offense habitual offender, MCL 769.11, to serve concurrent terms of 72 to
480 months’ imprisonment for each delivery of methamphetamine conviction and 34 to 480
months’ imprisonment for the delivery of cocaine conviction, with credit for 433 days served. For
the reasons set forth in this opinion, we affirm.

                                        I. BACKGROUND

       Undercover Battle Creek Southwest Enforcement Team (SWET) detectives met with
defendant on September 1, 2015, and they purchased 0.25 grams of methamphetamine for $100
from defendant. On September 14, 2015, SWET detectives purchased from defendant 0.47 grams
of cocaine for $120. Finally, on September 23, 2015, SWET detectives purchased from defendant


1
 People v Griffin, unpublished order of the Court of Appeals, entered January 4, 2019 (Docket
Nos. 346047; 346050; 346052).
2
    People v Cobbs, 443 Mich 276; 505 NW2d 208 (1993).


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0.7 grams of methamphetamine for $200. The prosecution alleged that defendant was a third-
offense habitual offender on the basis of defendant’s previous convictions of assault with a
dangerous weapon and assault with the intent to commit an armed robbery.

         On the date set for trial in this matter, the trial court agreed to a Cobbs agreement, which
provided that defendant’s sentences would not exceed the minimum sentencing guidelines range
and would be concurrent, rather than consecutive, if defendant pleaded to the three charges in these
cases. During the plea hearing, defense counsel indicated that the anticipated minimum sentencing
guidelines range was 36 to 90 months’ imprisonment. Following a question by defendant’s trial
counsel, the trial court reiterated that it would agree “to six as a cap.” Because there had been a
misunderstanding by defense counsel as to whether the trial court would place the minimum at 60
months or 6 years, following the trial court’s clarification that it would sentence defendant to six
years, not sixty months, defense counsel stated to defendant: “Mr. Griffin I do need your attention
at this point. And so addressing the issue first with Cobb's there would be one sentence or at least
all of the sentences that arise out of these cases would run concurrently and it would be no more
than six years on the minimum with the Department of Corrections.” Defendant indicated that he
would offer a plea if he was not sentenced as a habitual offender and if “the Court could come
down to three years.” The trial court indicated that it was within the prosecution’s discretion to
remove the habitual offender sentence enhancement. The trial court also indicated that it would
not agree to sentence defendant to no more than three years’ imprisonment on the basis of the three
felony charges in these cases, defendant’s criminal history, and defendant’s previous assault
convictions.

        After being provided an opportunity to consider the plea offer, defendant pleaded no
contest to delivery of methamphetamine (lower court number 2016-000232-FH), delivery of less
than 50 grams of cocaine (lower court number 2016-000233-FH), and delivery of
methamphetamine (lower court number 2016-000234-FH) pursuant to the Cobbs agreement. The
trial court determined that the facts provided in the felony information in each case satisfied the
elements of each offense. The trial court determined that defendant made his no-contest plea
freely, understandingly, and voluntarily and accepted defendant’s plea to the charges in each case.

        Defendant filed a motion to withdraw his plea and argued that he did not understand that
the Cobbs agreement referred to a six-year maximum of his minimum sentence but rather that he
believed it was a six-year total maximum sentence. Defendant also argued that defense counsel
was ineffective. The trial court stated that “it [was] very clear on the record that based upon the
statement of his attorney and the fact that he was told to pay attention that this was a minimum.”
The trial court also indicated that defendant confirmed on the record that he understood the terms
of the Cobbs agreement. The trial court determined that defendant had effective assistance of
counsel and that he had the information necessary to make an informed decision regarding his
plea, and the trial court denied defendant’s motion to withdraw his plea.

        Defendant filed a second motion to withdraw his plea and argued that he was not properly
informed of his enhanced maximum sentence. Defendant also requested to withdraw his plea on
the basis of ineffective assistance of counsel and first-appointed appellate counsel for failing to
correct the error regarding defendant’s possible maximum sentence. The trial court indicated that
defendant was informed that his status as a third-offense habitual offender increased the potential
maximum sentence to 40 years’ imprisonment on all charges. The trial court also indicated that

                                                -2-
defendant stated that he understood the charges during the plea hearing. The trial court concluded
that defendant was informed that there was at least one charge that had a penalty of up to 40 years’
imprisonment and that his sentences would be concurrent. The trial court further concluded that
any error in informing defendant of his maximum sentences for the delivery of methamphetamine
charges was harmless, and the trial court denied defendant’s motion to withdraw his plea. This
appeal then ensued.

                                           II. ANALYSIS

        On appeal, defendant contends that the trial court abused its discretion by denying
defendant’s motion to withdraw his plea. Defendant states that he did not understand his plea
because he believed that the Cobbs agreement related to a six-year maximum sentence, rather than
a six-year minimum of his possible maximum sentence. Defendant also argues that the trial court
did not properly inform him of his possible maximum sentence with the habitual offender sentence
enhancement. As a result of this error defendant argues, he was prejudiced because his actual
maximum sentences are far greater than what was told to him by the trial court.

        The State contends that the trial court did not abuse its discretion by denying defendant’s
motion to withdraw his plea because there was no error regarding the Cobbs agreement. Further,
the State argues, defendant was made aware of his maximum sentence and his waiver of rights
prior to pleading no contest. Additionally, the State argues, defendant cannot demonstrate that he
suffered prejudice because the trial court informed him of his maximum possible penalty.

        “We review for an 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. See
People v Johnson, 502 Mich 541, 564; 918 NW2d 676 (2018).

       “ ‘There is no absolute right to withdraw a guilty plea once the trial court has accepted it.’ ”
People v Al-Shara, 311 Mich App 560, 567; 876 NW2d 826 (2015) (citation omitted). A defendant
may file a motion to withdraw a plea within six months after the trial court imposes the defendant’s
sentence. MCR 6.310(C)(1). If more than six months elapsed after the defendant’s sentencing,
“the defendant may seek relief only in accordance with the procedure set forth in subchapter
6.500.” MCR 6.310(C)(3). “A defendant seeking to withdraw his or her plea after sentencing
must demonstrate a defect in the plea-taking process.” People v Brown, 492 Mich 684, 693; 822
NW2d 208 (2012).

         MCR 6.302 relates to no-contest-plea and guilty-plea proceedings. MCR 6.302(A)
provides that a plea must be understanding, voluntary, and accurate. See Pointer-Bey, 321 Mich
App at 616. “In order for a plea to be voluntary and understanding, the defendant ‘must be fully
aware of the direct consequences of the plea.’ ” People v Blanton, 317 Mich App 107, 118; 894
NW2d 613 (2016) (citation omitted). A direct consequence of a plea includes the penalty to be
imposed by the trial court. Id. The trial court must inform a defendant of the “the maximum
possible prison sentence for the offense and any mandatory minimum sentence required by
law . . . .” MCR 6.302(B)(2). Additionally, the trial court must establish a factual basis for the
plea to ensure that the plea is accurate. MCR 6.302(D); see also People v Plumaj, 284 Mich App
645, 648 n 2; 773 NW2d 763 (2009). “[A] misstatement of the maximum possible sentence does

                                                 -3-
not require reversal if no prejudice is shown.” People v Winters, 320 Mich App 506, 510; 604
NW2d 899 (2017), affirmed in part and vacated in part ___ Mich ___, ___; ___ NW2d ___ (2018)
(Docket No. 156388); slip op at 3 (agreeing with this Court that reversal is not required for a
misstatement of the maximum possible sentence if a defendant does not show prejudice).

         Here, review of the record leads us to conclude that defendant was made aware of his
maximum sentences and that defendant was informed that the six-year sentence was a maximum
minimum that the trial court would sentence defendant to under his Cobbs agreement. The trial
court and the parties discussed the Cobbs agreement with defendant at two separate hearings, with
the trial court repeatedly referring to a “six-year cap.”3

        As previously indicated, following the trial court’s clarification that the cap it was referring
to was six years, not sixty months, defense counsel addressed defendant, informing him that his
sentences: “would be no more than six years on the minimum with the Department of Corrections.”
After defendant asked whether 60 months equated to five years, defense counsel again clarified
that he misspoke and that the proper sentence would be no more than six years. The trial court
again stated that it agreed to a “cap at six years.” The trial court restated the Cobbs agreement
before defendant pleaded and indicated that it would “cap any incarceration at six years.” The trial
court asked defendant if its description of the Cobbs agreement was defendant’s understanding of
the agreement to which defendant responded affirmatively. Viewing the discussions of the Cobbs
agreement in their entirety, we conclude that the trial court and defense counsel made defendant
aware that the trial court would impose a minimum sentence of no more than six years’
imprisonment if defendant offered a plea, and defendant confirmed that he understood that
agreement.

        Regarding defendant’s maximum sentence, the trial court erroneously stated that
defendant’s maximum sentences for the delivery of methamphetamine offenses with the habitual
offender sentence enhancement were 4- and 20-years’ imprisonment. See MCL 333.7401(2)(b)(i);
MCL 769.11(1)(a).4 However, the trial court correctly stated that defendant’s possible maximum
sentence for the delivery of cocaine offense was 40 years’ imprisonment. See MCL
333.7401(2)(a)(iv); MCL 769.11(1)(a). Accordingly, the trial court advised defendant of his
maximum possible prison sentence pursuant to MCR 6.302(B)(2). After being so informed,
defendant told the trial court that he understood both the charges and the possible penalties. On
this record, we cannot conclude that there was a defect in the plea proceedings. See Brown, 492
Mich at 693. Furthermore, defendant did not demonstrate that he was prejudiced by the trial


3
  We have little doubt that the trial court’s repeated reference to six years as a “cap” formed the
basis on which this Court granted leave to appeal. Whereas the trial court may have understood
the term “cap” to apply only to the maximum minimum, it never conveyed that understanding to
defendant. Rather, it was defendant’s trial counsel who clarified for defendant that the six year
“cap” pertained only to the maximum minimum. As will be discussed infra, the trial court did,
albeit with some error, during the course of taking defendant’s plea, inform defendant as to the
statutory maximum.
4
  The trial court declared that the “four” was likely a transcription error “because four and forty
are close.”

                                                  -4-
court’s misstatement of the maximum possible sentence for the delivery of methamphetamine
offenses because the trial court properly advised defendant of his 40-year maximum sentence for
the delivery of cocaine offense and that his sentences would be concurrent. See Winters, 320 Mich
App at 510. In short, defendant was informed by the trial court that he faced a maximum possible
sentence of 40 years. Thus, defendant was informed that if he pled guilty, his maximum minimum
would be six years and that he faced the possibility of up to 40 years in prison. Accordingly, the
trial court did not abuse its discretion in denying defendant’s motions to withdraw his plea. See
Pointer-Bey, 321 Mich App at 615.

        Defendant next argues on appeal that defense counsel was ineffective for failing to correct
the trial court regarding the possible maximum sentences and that defendant’s first-appointed
appellate counsel was ineffective for failing to raise this issue. Defendant asks this Court to
remand the matter to the trial court so that defendant may have an opportunity to withdraw his
plea.

        Generally, “[t]he question whether defense counsel performed ineffectively is a mixed
question of law and fact; this Court reviews for clear error the trial court’s findings of fact and
reviews de novo questions of constitutional law.” People v Trakhtenberg, 493 Mich 38, 47; 826
NW2d 136 (2012). Our review of defendant’s ineffective assistance of counsel claim is limited to
mistakes apparent on the lower court record because defendant failed to move for a new trial or
file a motion for an evidentiary hearing. See People v Payne, 285 Mich App 181, 188; 774 NW2d
714 (2009).

        “Effective assistance of counsel is presumed, and the defendant bears the heavy burden of
proving otherwise.” People v Solmonson, 261 Mich App 657, 663; 683 NW2d 761 (2004). In
order to overcome this presumption, a defendant must show that: (1) defense counsel’s
performance did not meet an objective standard of reasonableness under the circumstances and
according to prevailing professional norms and (2) there was a reasonable probability that, but for
defense counsel’s errors, the results of the proceeding would be different. Strickland v
Washington, 466 US 668, 687-688; 104 S Ct 2052; 80 L Ed 2d 674 (1984); People v Pickens, 446
Mich 298, 312-313; 521 NW2d 797 (1994). Additionally, a defendant must show that the result
that occurred was fundamentally unfair or unreliable. People v Lockett, 295 Mich App 165, 187;
814 NW2d 295 (2012). To establish a claim of ineffective assistance of appellate counsel, a
defendant must show that counsel’s performance was deficient under an objective standard of
reasonableness and that the deficiency prejudiced the defendant’s appeal. See People v Uphaus
(On Remand), 278 Mich App 174, 186; 748 NW2d 899 (2008).

        “Defense counsel must be afforded broad discretion in the handling of cases.” Pickens,
446 Mich at 325. Trial counsel is not ineffective for failing to raise an objection or a motion that
lacks merit. People v Fonville, 291 Mich App 363, 384; 804 NW2d 878 (2011). Regarding plea
bargains, defense counsel must inform a defendant of the direct consequences of his or her plea.
Id. at 384-385. To establish prejudice as a result of the plea-bargaining process, “ the ‘defendant
must show the outcome of the plea process would have been different with competent advice.’ ”
People v Douglas, 496 Mich 557, 592; 852 NW2d 587 (2014) (citation omitted).

       In this case, we glean no error by trial counsel from the record. Defendant’s plea was
understanding and voluntary. Nothing in the record reveals that trial counsel forced defendant into

                                                -5-
accepting a plea agreement, or that defendant was innocent of the charges. In fact, defendant
admitted his guilt to the trial court but tried to engage the trial court in plea discussions with the
trial court while on the record. The record reveals that trial counsel pursued those discussions on
behalf of defendant. The record further reveals that trial counsel informed defendant of the
specifics of the Cobbs plea, namely the six-year maximum minimum. Hence, we cannot find in
the record any evidence to demonstrate that defense counsel failed to inform defendant of the direct
consequences of his plea. See Fonville, 291 Mich App at 384-385. Because defense counsel
informed defendant of the consequences of his plea and defendant chose to plead no contest,
defendant cannot demonstrate that the result of the plea proceeding would have been different.
See Douglas, 496 Mich at 592; Pickens, 446 Mich at 312-313.

        We note that trial counsel did not correct the trial court when it made misstatements
regarding the maximum sentence with the habitual offender sentence enhancement for the delivery
of methamphetamine offenses. However, as previously noted, the trial court did inform defendant
as to the correct minimum, forty years, in another charge to which he pled that was to run
concurrently with the other charges where the maximum sentences were misstated by the trial
court. We have concluded that by doing so the trial court complied with MCR 6.302(B)(2). Hence,
even if we were to find trial counsel’s actions relative to him not correcting the trial court’s
misstatements about maximum sentences fell below an objective standard of reasonableness, we
cannot find that that defendant suffered any prejudice as a result. Strickland, 466 US at 687-688.

        As to allegations that defendant’s first appellate counsel was also ineffective, we cannot
glean error from the record. As discussed above, defendant pleaded understandingly and
voluntarily. Nonetheless, first-appointed appellate counsel challenged whether defendant pleaded
understandingly by filing a motion to withdraw defendant’s plea. Although first-appointed
appellate counsel did not challenge the trial court’s misstatements regarding the maximum
sentence with the habitual offender sentence enhancement for the delivery of methamphetamine
offenses, as we have already concluded, the trial court complied with MCR 6.302(B)(2) when it
informed defendant of his 40-year maximum sentence for the delivery of cocaine offense and that
his sentences would be concurrent. Therefore, first-appointed appellate counsel was not
ineffective for failing to challenge the trial court’s misstatement when such an objection or
challenge lacked merit. See Fonville, 291 Mich App at 384; Uphaus, 278 Mich App at 186-187.
Accordingly, defendant is not entitled to relief. See Douglas, 496 Mich at 592; Uphaus, 278 Mich
App at 186; Solmonson, 261 Mich App at 663.

       Affirmed.

                                                              /s/ Stephen L. Borrello
                                                              /s/ Patrick M. Meter
                                                              /s/ Michael J. Riordan




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