                           STATE OF MICHIGAN

                            COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                     UNPUBLISHED
                                                                     December 23, 2014
               Plaintiff-Appellee,

v                                                                    No. 317883
                                                                     Wayne Circuit Court
JONATHAN APONTE,                                                     LC No. 12-010690-FC

               Defendant-Appellant.


Before: O’CONNELL, P.J., and BORRELLO and GLEICHER, JJ.

PER CURIAM.

        Defendant appeals by delayed leave granted his guilty plea convictions of two counts of
assault with intent to do great bodily harm less than murder, MCL 750.84. Pursuant to a plea
agreement, defendant was sentenced to 6 to 10 years’ imprisonment for both convictions. We
affirm.

        It is clear from the lower court record—and defendant does not dispute on appeal—that
defendant understood and voluntarily accepted a plea offer that included a sentence agreement.
The settlement offer signed by the prosecutor, defense counsel, and defendant clearly indicated
that the plea agreement included a sentence agreement of 6 to 10 years’ imprisonment.
Likewise, before defendant pleaded guilty, the prosecutor and trial court expressly stated on the
record that the settlement offer included a sentence agreement, and defense counsel confirmed
that he had explained the agreement to defendant. Furthermore, defendant’s answers to the trial
court’s questions confirmed that his plea was voluntary, that he reviewed the plea with his
attorney, and that he signed the plea agreement. “[A] defendant waives appellate review of a
sentence that exceeds the guidelines by understandingly and voluntarily entering into a plea
agreement to accept that specific sentence.” People v Wiley, 472 Mich 153, 154; 693 NW2d 800
(2005). Thus, because there is no indication that the plea agreement—which expressly included
the sentences imposed by the trial court—was invalid, defendant has waived review of his
sentences on appeal.

         Moreover, we find no error in the sentences imposed by the trial court. Defendant first
argues that the trial court erred because it failed to articulate a substantial and compelling reason
for its departure from the sentencing guidelines. However, in Wiley, our Supreme Court held:

       a sentence that exceeds the sentencing guidelines satisfies the requirements of
       MCL 769.34(3) when the record confirms that the sentence was imposed as part
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       of a valid plea agreement. Under such circumstances, the statute does not require
       the specific articulation of additional “substantial and compelling” reasons by the
       sentencing court. [Id.]

Accordingly, because the trial court imposed defendant’s sentences as part of a valid plea
agreement, the trial court was not required to articulate additional substantial and compelling
reasons for its departure from the sentencing guidelines.

       Next, defendant argues that the trial court violated the doctrine of proportionality and
abused its discretion by imposing sentences that exceeded the sentencing guidelines. However,
in Wiley, our Supreme Court stated that “a defendant who pleads guilty with knowledge of the
sentence will not be entitled to appellate relief on the basis that the sentence is disproportionate.”
Id. Further, in People v Cobbs, 443 Mich 276; 505 NW2d 208 (1993), our Supreme Court
provided the following rationale for denying appellate relief to a defendant who pleaded guilty:

       [W]e caution that a defendant who pleads guilty . . . with knowledge of the
       sentence, and who later seeks appellate sentence relief under People v Milbourn,
       435 Mich 630, 461 NW2d 1 (1990), must expect to be denied relief on the ground
       that the plea demonstrates the defendant’s agreement that the sentence is
       proportionate to the offense and offender. [Cobbs, 443 Mich at 285 (emphasis
       added).]

As such, defendant is not entitled to appellate relief on the basis that his sentence in
disproportionate.

        Finally, defendant argues that the trial court erred because it failed to advise defendant
that the sentence to be imposed was an upward departure from the sentencing guidelines.
Further, defendant argues that the trial court failed to justify its departure by explaining that an
offense characteristic was given inadequate or disproportionate weight. When a defendant
pleads guilty, the trial court is required to make sure that the defendant understands “the
maximum possible prison sentence for the offense and any mandatory minimum sentence
required by law.” MCR 6.302(B)(2). However, “automatic reversal is not required for a failure
to give advice concerning the mandatory minimum and maximum sentences if the defendant is
sentenced pursuant to a sentencing agreement.” People v Brown, 492 Mich 684, 695 n 36; 822
NW2d 208 (2012). Moreover, the trial court imposed the sentence of 6 to 10 years’
imprisonment pursuant to a sentence agreement. Consequently, the trial court had no obligation
to explain whether it believed a particular offense characteristic was given inadequate or
disproportionate weight because the sole reason for the departure was based on the sentence
agreement that defendant accepted on the record.

       Affirmed.

                                                              /s/ Peter D. O’Connell
                                                              /s/ Stephen L. Borrello
                                                              /s/ Elizabeth L. Gleicher




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