             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PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   August 27, 2020
                Plaintiff-Appellee,

v                                                                  No. 349008
                                                                   Oakland Circuit Court
AURELIO LIONEL HARRIS,                                             LC No. 2018-266404-FH

                Defendant-Appellant.


Before: REDFORD, P.J., and METER and O’BRIEN, JJ.

PER CURIAM.

        Defendant appeals by leave granted1 his guilty plea for possession with intent to deliver
less than 5 kilograms of marijuana, MCL 333.7401(2)(d)(iii). The trial court sentenced defendant
as a fourth-offense habitual offender, MCL 769.12, to 2 to 15 years’ imprisonment. We vacate
defendant’s sentence and remand to the trial court.

                                       I. BACKGROUND

        Defendant was arrested for attempting to sell 4 grams of marijuana in Oak Park. At all
times relevant to this case, defendant possessed a valid medical marijuana card. After his arrest,
defendant was released on bond with one condition being that he was prohibited from using
“alcohol or any other illegal controlled substance.” The box requiring drug testing as a condition
of bond was left unchecked. Eventually, pursuant to a Cobbs2 agreement, defendant pleaded guilty
and the trial court agreed to sentence defendant to one year in jail and three years’ probation.

        Before sentencing, a presentence investigation report (PSIR) noted that defendant had been
instructed to complete a drug test (though it did not explain who instructed him or why), and that
defendant had attended his testing appointment but did not have money to complete the test. The


1
 People v Harris, unpublished order of the Court of Appeals, entered July 30, 2019, (Docket No.
349008).
2
    People v Cobbs, 443 Mich 276; 505 NW2d 208 (1993).


                                               -1-
PSIR further noted that defendant admitted to using marijuana and told the testing-center staff that
he would likely test positive for marijuana.

        At sentencing, defendant admitted that he had not successfully completed a drug test and
that he had continued to use marijuana during his pretrial release. The trial court determined that
both acts violated defendant’s bond conditions, so it was not bound to sentence defendant pursuant
to the Cobbs agreement. Accordingly, the court sentenced defendant to 2 to 15 years’
imprisonment.

         Defendant obtained appellate counsel and filed a motion for resentencing or, in the
alternative, to withdraw his guilty plea. Defendant offered a Michigan Department of Licensing
and Registration certification that he had a valid medical marijuana card during his entire pretrial
release.3 Nonetheless, the trial court denied defendant’s motion, believing that defendant’s use of
marijuana—medical or not—violated the condition of his bond prohibiting him from using illegal
controlled substances. The court further reasoned that, regardless of defendant’s marijuana use,
his failure to complete a drug test was a violation of the conditions of his bond and independently
justified the court’s decision to disregard the Cobbs agreement. Defendant now appeals.

                                  II. STANDARD OF REVIEW

       “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 necessarily
abuses its discretion when it makes an error of law.” People v Duncan, 494 Mich 713, 723; 835
NW2d 399 (2013). “The interpretation of court rules is a question of law that this Court reviews
de novo.” People v Walters, 266 Mich App 341, 346; 700 NW2d 424 (2005).

        To the extent that defendant argues that the trial court’s decision to disregard his plea
agreement raises constitutional concerns, see People v Gallego, 430 Mich 443, 449; 424 NW2d
470 (1988), our review is de novo, People v LeBlanc, 465 Mich 575, 579; 640 NW2d 246 (2002).
Our review of a trial court’s interpretation of the terms of a sentencing agreement is analogous to
our review of a trial court’s interpretation of a contract, see People v Swirles, 218 Mich App 133,
135; 553 NW2d 357 (1996), so our review is de novo, see Kloian v Domino’s Pizza LLC, 273
Mich App 449, 452; 733 NW2d 766 (2006).

                                    III. COBBS AGREEMENT

        Under People v Cobbs, 443 Mich 276; 505 NW2d 208 (1993), a trial judge “may state on
the record the length of sentence that, on the basis of the information then available to the judge,
appears to be appropriate for the charged offense,” but the judge is not bound by that preliminary
evaluation “since additional facts may emerge during later proceedings.” Thus, the trial court
clearly had the discretion under Cobbs to disregard the agreement in this case. Despite this,
defendant argues that the court’s decision to do so was an abuse of discretion or otherwise violated
the law because it did not allow him to withdraw his guilty plea. We agree.



3
    Defendant’s PSIR also noted that he had a medical marijuana card.


                                                -2-
       Cobbs provides that “a defendant who pleads guilty or nolo contendere in reliance upon a
judge’s preliminary evaluation with regard to an appropriate sentence has an absolute right to
withdraw the plea if the judge later determines that the sentence must exceed the preliminary
evaluation.” Id. This rule is embodied in MCR 6.310(B)(2)(b), which states that

       the defendant is entitled to withdraw the plea if

                                               * * *

               (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
       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.

MCR 6.310(B)(3), however, provides an exception to this rule:

                Except as allowed by the trial court for good cause, a defendant is not
       entitled to withdraw a plea under subsection (2)(a) or (2)(b) if the defendant
       commits misconduct after the plea is accepted but before sentencing. For purposes
       of this rule, misconduct is defined to include, but is not limited to: absconding or
       failing to appear for sentencing, violating terms of conditions on bond or the terms
       of any sentencing or plea agreement, or otherwise failing to comply with an order
       of the court pending sentencing. [Emphasis added.]

        It is uncontested that while defendant was out on bond pending his sentencing hearing, he
used marijuana and failed to complete a drug test. The trial court concluded that these were
violations of the conditions of defendant’s bond, so it disregarded the Cobbs agreement without
allowing defendant to withdraw his plea, as provided in MCR 6.310(B)(3).

        First addressing defendant’s failure to complete a drug test, this was not a violation of the
conditions of his bond. The conditional release order setting defendant’s bond conditions did not
check condition “h. Participate in a substance abuse testing or monitoring program.” The trial
court’s interpretation of defendant’s bond conditions as requiring him to drug test was an error of
law, and the court could not use defendant’s failure to drug test as a reason to not allow defendant
to withdraw his plea under MCR 6.310(B)(3).

        The closer question is whether the trial court correctly interpreted defendant’s bond
condition that defendant “not use alcohol or any other illegal controlled substance” as prohibiting
his medical use of marijuana. MCL 333.26424(a) of the Michigan Medical Marijuana Act
(MMMA) provides, “A qualifying patient who has been issued and possesses a registry
identification card is not subject to arrest, prosecution, or penalty in any manner, or denied any
right or privilege . . . for the medical use of marihuana in accordance with this act . . . .” Neither
this Court nor our Supreme Court has decided whether prohibiting the medical use of marijuana
as a condition of bond violates the MMMA, and we decline to resolve that issue today.

      Rather, we assume for purposes of this appeal that such a bond condition would not violate
the MMMA, and address whether the trial court correctly interpreted defendant’s medical use of



                                                 -3-
marijuana as violating the condition of his bond that he “not use alcohol or any other illegal
controlled substance.” This provision did not explicitly prohibit the medical use of marijuana.

        In People v Stanley, 207 Mich App 300, 307; 523 NW2d 892 (1994), this Court stated that
“due process requires that a probationer be given prior notice of the conditions of probation before
a court may revoke probation for failure to meet those conditions.” We think that this rule applies
analogously to bond conditions. That is, due process requires that a defendant have prior notice
of the conditions of his bond before a court may punish him for a bond violation.

         The condition of defendant’s bond that he not use “illegal controlled substances” was, at
best, ambiguous as applied to the medical use of marijuana; under the MMMA, the medical use of
marijuana is not necessarily illegal, see MCL 333.26427(a) (“The medical use of marihuana is
allowed under state law to the extent that it is carried out in accordance with the provisions of this
act.”), despite that marijuana is still a controlled substance, see MCL 333.7212. Due to this
ambiguity, defendant did not have sufficient notice that his medical use of marijuana in accordance
with the MMMA4 violated a condition of his bond. Consequently, regardless of whether
defendant’s bond condition that he not use “illegal controlled substances” is interpreted as
encompassing the medical use of marijuana or not, the result is the same. Either (1) the bond
condition encompassed the medical use of marijuana, in which case the condition’s failure to
explicitly state as much left defendant without sufficient notice that his medical use of marijuana
in accordance with the MMMA violated the conditions of his bond, and punishing him for a bond
violation of which he did not have sufficient notice violated due process, or (2) the bond condition
did not encompass the medical use of marijuana in accordance with the MMMA, so defendant’s
medical use of marijuana did not violate the conditions of his bond. Under either interpretation,
the trial court should not have proceeded under MCR 6.310(B)(3). Rather, if the court declined to
follow the Cobbs agreement because of defendant’s medical use of marijuana, it should have
proceeded under MCR 6.310(B)(2)(b) and allowed defendant “the opportunity to affirm or
withdraw” his plea.5

       Accordingly, we vacate defendant’s sentence and remand for the trial court to either
enforce the Cobbs agreement or, if it decides to not follow the Cobbs agreement, allow defendant
the opportunity to withdraw his guilty plea. We do not retain jurisdiction.



                                                              /s/ James Robert Redford
                                                              /s/ Patrick M. Meter
                                                              /s/ Colleen A. O’Brien




4
  Defendant had a valid medical marijuana card at all times relevant to this case, and nothing in
the record suggests that defendant’s personal use of marijuana violated the MMMA.
5
    Based on this conclusion, we decline to address defendant’s other arguments on appeal.


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