                            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PEOPLE OF THE STATE OF MICHIGAN,                                      UNPUBLISHED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.

JANSEN, J. (concurring).

        I agree with the majority’s conclusion that MCR 6.310(D) required defendant to move to
withdraw his plea in the trial court before raising a claim of noncompliance on appeal, and I also
agree with the majority’s determination that defendant is not entitled to an ability-to-pay
assessment at this time. However, I write separately to emphasize that the trial court, defense
counsel, and the prosecutor all had a responsibility to inform defendant of his option to withdraw
his plea once the trial court determined that it was unable to sentence defendant in accordance
with the Cobbs1 agreement.

       The trial court was responsible for informing defendant that it would be unable to
sentence him as provided in the Cobbs agreement and to give defendant the opportunity to
withdraw his plea. MCR 3.610(B)(2) provides that a defendant is entitled to withdraw his plea
if:

                (a) the plea involves an agreement for a sentence for a specified term or
         within a specified range, and the court states that it is unable to follow the
         agreement; the trial court shall then state the sentence it intends to impose, and
         provide the defendant the opportunity to affirm or withdraw the plea; or

                 (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



1
    People v Cobbs, 443 Mich 276; 505 NW2d 208 (1993).


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       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.

       It is uncontested that there was a Cobbs agreement providing that defendant would be
sentenced in the lower third of the guidelines range. The sentencing guidelines range was 57 to
95 months’ imprisonment. The court told defendant during the plea hearing that it would give
defendant the opportunity to withdraw his plea if the court found that it could not sentence him
pursuant to the Cobbs agreement once it received the presentence investigation report (PSIR).
However, the court then proceeded at sentencing to sentence defendant to a minimum sentence
of 95 months’ imprisonment without informing defendant beforehand that it would be unable to
sentence him pursuant to the Cobbs agreement and without giving defendant the opportunity to
withdraw his plea. Therefore, the trial court did not comply with its responsibilities under MCR
3.610(B)(2).

        Additionally, defense counsel’s failure to object at sentencing to the imposition of a
sentence above the lower third of the sentencing guidelines range arguably constitutes ineffective
assistance of counsel. A defendant has the right to the effective assistance of counsel. See
People v Trakhtenberg, 493 Mich 38, 51; 826 NW2d 136 (2012). “In order to obtain a new trial,
a defendant must show that (1) counsel’s performance fell below an objective standard of
reasonableness and (2) but for counsel’s deficient performance, there is a reasonable probability
that the outcome would have been different.” Id. There is a strong presumption that defense
counsel’s conduct constituted sound trial strategy. Id. at 52. In this case, however, there does
not appear to be any reasonable trial strategy that would account for defense counsel’s failure to
challenge the sentence or to inquire into whether defendant wished to affirm or withdraw his
plea. In addition, there is a reasonable probability that the trial court would have altered
defendant’s sentence or that defendant would have withdrawn his plea had defense counsel
challenged the court’s failure to abide by the Cobbs agreement and informed defendant that he
had the right to withdraw his plea as a result. Thus, I believe that defense counsel had a duty to
raise the issue in the trial court and properly inform defendant of his rights.

         Furthermore, the prosecutor had a responsibility to raise the issue during sentencing as
well. The prosecutor has a duty to seek justice as an officer of the court. See People v Dobek,
274 Mich App 58, 63; 732 NW2d 546 (2007). Thus, the prosecutor had a responsibility to
ensure that defendant received the benefit of his Cobbs agreement once the prosecutor and
defendant entered into the agreement. The prosecutor failed to do so by remaining silent when
the trial court sentenced defendant to a higher sentence than was provided in the Cobbs
agreement without giving defendant an opportunity to withdraw his plea. The prosecution’s
argument that defendant should have said something on his own behalf is specious. Instead, I
believe that the trial court, the prosecutor, and defense counsel all had a duty to raise the issue in
the trial court in order for defendant to have the opportunity to withdraw his plea.

        However, the only argument defendant raises in his brief on appeal with regard to the no
contest plea is that the trial court abused its discretion in failing to abide by the Cobbs agreement
and in failing to advise defendant that he had a right to withdraw his plea. Since MCR 6.310(D)
required defendant to move to withdraw his plea in the trial court in order to raise the issue on
appeal, I concur with the result reached by the majority. If MCR 6.310(D) did not require
defendant to move to withdraw his plea before raising the issue on appeal, however, I would

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remand the case to the trial court to give defendant an opportunity to withdraw his plea since I do
not believe that defendant should bear the consequence of the failure of the trial court, defense
counsel, and the prosecutor to raise the issue. Therefore, I respectfully concur.



                                                            /s/ Kathleen Jansen




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