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STATE OF MICHIGAN 

COURT OF APPEALS 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

UNPUBLISHED 

March 16, 2017 

v No. 330849 

St. Clair Circuit Court 

DAVID LARONE WILLIAMS, LC No. 15-000694-FH 

 Defendant-Appellant. 

Before: RIORDAN, P.J., and METER and FORT HOOD, JJ. 

PER CURIAM. 

 Defendant pleaded guilty to possession with intent to deliver a schedule 4 controlled 

substance (Alprazolam, commonly known as Xanax), MCL 333.7401(2)(c). The trial court 

sentenced him to 14 to 48 months in prison. Defendant appeals by delayed leave granted.1 We 

affirm. 

I. FACTUAL BACKGROUND 

 Defendant was originally charged with possession with intent to deliver Alprazolam, a 

schedule 4 controlled substance, MCL 333.7401(2)(c), possession of marijuana, MCL 

333.7403(2)(d), and operating a vehicle with a suspended license, second offense, MCL 

257.904(3)(b). He also was charged with being a second or subsequent controlled substance 

offender, MCL 333.7413, which exposed him to twice the authorized punishment for drug 

offense convictions, and with being a fourth habitual offender, MCL 769.12. 

Pursuant to a plea agreement, defendant pleaded guilty to the possession with intent to 

deliver Alprazolam charge in exchange for the dismissal of the remaining charges and the 

dismissal of the habitual offender and repeat drug offender notices. During the plea hearing, the 

prosecutor and defense counsel both stated that they had scored the sentencing guidelines for the 

proposed conviction under the plea agreement and agreed that the minimum sentencing 

 

1 People v Williams, unpublished order of the Court of Appeals, entered February 3, 2016 

(Docket No. 330849). 
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guidelines range was 5 to 23 months. After questioning defendant on the record, the trial court 

accepted the plea. 

 At sentencing, the parties informed the trial court that defendant had a more substantial 

criminal record than the parties had realized at the plea hearing, resulting in an increased score 

for defendant’s prior record variables (“PRVs”) and a corrected minimum guidelines range of 10 

to 23 months. Before the trial court imposed defendant’s sentence, defendant requested to 

withdraw his plea so that he could “figure this out,” meaning figure out for himself which 

offenses were considered in the scoring of the PRVs. The trial court denied defendant’s request 

and sentenced him to 14 to 48 months’ imprisonment. 

II. MOTION TO WITHDRAW PLEA 

 Defendant first argues that the trial court erred in denying his motion to withdraw his 

guilty plea. We disagree. 

A. STANDARD OF REVIEW 

“We review a trial court’s decision on a motion to withdraw a plea for an abuse of 

discretion.” People v Billings, 283 Mich App 538, 549; 770 NW2d 893 (2009). “An abuse of 

discretion occurs when the trial court chooses an outcome that falls outside the range of 

principled outcomes.” People v March, 499 Mich 389, 397; 886 NW2d 396 (2016) (quotation 

marks and citation omitted). Issues concerning the interpretation and application of the court 

rules are reviewed de novo. People v Lee, 489 Mich 289, 295; 803 NW2d 165 (2011). 

B. ANALYSIS 

“There is no absolute right to withdraw a guilty plea once it has been accepted.” People v 

Gomer, 206 Mich App 55, 56; 520 NW2d 360 (1994). MCR 6.310(B) governs the withdrawal of 

a guilty plea after acceptance but before sentencing. The rule provides, in pertinent part: 

 (1) a plea may be withdrawn on the defendant’s motion or with the 

defendant’s consent only in the interest of justice, and may not be withdrawn if 

withdrawal of the plea would substantially prejudice the prosecutor because of 

reliance on the plea. If the defendant’s motion is based on an error in the plea 

proceeding, the court must permit the defendant to withdraw the plea if it would 

be required by subrule (C). 

 (2) the defendant is entitled to withdraw the 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 
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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. 

MCR 6.310(B)(1) states that “a plea may be withdrawn on the defendant’s motion or with 

the defendant’s consent” where withdrawal is in the interest of justice and withdrawal would not 

substantially prejudice the prosecution. (Emphasis added.) “The use of the term ‘may’ indicates 

discretionary, rather than mandatory, action.” Ronnisch Constr Group, Inc v Lofts on the Nine, 

LLC, 499 Mich 544, 567 n 73; 886 NW2d 113 (2016); see also People v Bell, 276 Mich App 

342, 347; 741 NW2d 57 (2007) (“The use of the term ‘shall’ rather than ‘may’ indicates 

mandatory rather than discretionary action.”) (quotation marks and citation omitted). In contrast, 

MCR 6.310(B)(2) provides that the defendant “is entitled to withdraw the plea” under the stated 

circumstances. (Emphasis added.) Thus, where the stated circumstances exist, the defendant has 

a legal right to withdraw the plea. Cf. In re Jajuga Estate, 312 Mich App 706, 718; 881 NW2d 

487 (2015) (finding that the use of “entitled” in the statute applicable to that case denoted a 

party’s legal right to something).2

 

 First, defendant was not entitled to withdraw his guilty plea under MCR 6.310(B)(2)(a) 

or (b). Based on the parties’ description of the plea at the hearing, it is apparent that the plea was 

not expressly tied to a specified sentencing term or range.3

 At the plea hearing, the parties 

announced, before defendant entered the plea, that they were in agreement that the minimum 

range calculated under the sentencing guidelines for the conviction was 5 to 23 months. Later, at 

the sentencing hearing, the prosecutor, defense counsel, and the trial court agreed, based on 

clarification of defendant’s prior criminal record, that the correct minimum range under the 

guidelines was 10 to 23 months, which is a subset of the originally stated range. The trial court 

never expressed an intent to sentence defendant within the lesser 5- to 10-month portion of the 

original range, and the sentence that it imposed was within the original range that was discussed 

at the plea hearing. Accordingly, even if we assume, arguendo, that the attorneys’ statements on 

the record indicated that the plea was based on a specified sentence term or range, defendant did 

not have a legal right to withdraw his plea under MCR 6.310(B)(2)(a) or (b) because the trial 

court did, in fact, sentence defendant within the range discussed at the plea hearing. 

 Furthermore, the trial court did not abuse its discretion by refusing to allow defendant to 

withdraw his guilty plea under MCR 6.310(B)(1). Defendant argues that the trial court should 

have allowed him to withdraw his plea because his request “was not frivolously based on a 

concern for sentencing,” but, instead, was based on his “substantial concerns regarding the 

scoring of his prior record variables . . . .” In support of his position, defendant relies on cases 

decided under the former court rule, MCR 6.101(F)(6)(b), and the “great liberality” standard set 

forth in People v Bencheck, 360 Mich 430; 104 NW2d 191 (1960), and its progeny. See People 

 

2

 Use of the word “shall” in MCR 6.310(B)(2)(a) and (b) with regard to the actions that a trial 

court must take, which include providing the defendant an opportunity to affirm or withdraw the 

plea, further demonstrates that a defendant has a legal right to withdraw his plea if any of the 

circumstances listed in MCR 6.310(B)(2) are present. See Bell, 276 Mich App at 347. 

3

 A written plea agreement is not in the lower court record received on appeal. 
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v Lewis, 176 Mich App 690; 440 NW2d 12 (1989); People v Camargo, 163 Mich App 581; 415 

NW2d 211 (1987). This standard is no longer followed after the Michigan Supreme Court’s 

promulgation of MCR 6.310(B),4 Gomer, 206 Mich App at 56-57, and defendant has not 

demonstrated that the trial court abused its discretion under the standard set forth in the current 

rule. The corrected guidelines range used at sentencing did not expose defendant to greater peril. 

Defendant agreed to plead guilty knowing that the guidelines range discussed at the plea hearing 

permitted the court to impose a minimum sentence as high as 23 months, which was also the 

upper limit of the modified guidelines range used at sentencing. Moreover, given defendant’s 

lengthy criminal record, it would have been unreasonable for defendant to expect a sentence at 

the low end of the initial 5-to-23-months range. 

Defendant argues that his concern about the PRV scoring was a legitimate reason to 

withdraw his guilty plea, but he does not identify on appeal any errors in the scoring of the 

PRVs. In addition, despite the fact that defendant had a more serious criminal record than the 

parties had realized at the plea hearing, the trial court never expressed an intention to deviate 

from the original guidelines range discussed at the plea hearing. Again, the adjusted guidelines 

range used at sentencing was fully within the original range calculated by the parties, with regard 

to which defendant agreed to plead guilty. Under these circumstances, the court was not 

compelled to permit defendant to withdraw his guilty plea in the interest of justice. See MCR 

6.310(B)(1). Therefore, because the trial court’s denial of defendant’s motion to withdraw his 

plea was within the range of principled outcomes, its decision did not constitute an abuse of 

discretion. See March, 499 Mich at 397; Billings, 283 Mich App at 549. 

 Defendant also contends that he is entitled to “specific performance” of the plea 

agreement. He correctly observes that “once a trial court accepts a plea which was induced by [a 

plea] agreement [between the defendant and the prosecution], the terms of that agreement must 

be fulfilled.” People v Nixten, 183 Mich App 95, 97; 454 NW2d 160 (1990), citing Santobello v 

New York, 404 US 257, 262; 92 S Ct 495; 30 L Ed 2d 427 (1971); see also People v Arriaga, 199 

Mich App 166, 168; 501 NW2d 200 (1993) (stating same). Accordingly, “[w]here [a plea] 

agreement is subsequently breached, a reviewing court has discretion to choose between vacating 

the plea or ordering specific performance, with defendant’s choice of remedy accorded 

considerable weight.” Nixten, 183 Mich App at 97.5

 

 

4

 Further, even if the “great liberality” standard were still in effect, Lewis and Camargo both 

considered cases where a defendant asserted his innocence as a basis for withdrawing his guilty 

plea. Lewis, 176 Mich App at 693-694; Camargo, 163 Mich App at 584-585. Defendant makes 

no such claim in this case. 

5

 In the interest of completeness, it is important to note the following: 

Santobello does not propose specific performance by a trial court or by any actor 

not making the promise at issue. Under Michigan law, the trial judge is not 

required to enforce a sentence agreement reached by the parties with which the 

judge does not agree. Thus, the judge may reject the agreement, i.e., allow the 

parties to withdraw. In a system increasingly driven by the exigencies of plea 
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The sentence imposed by the trial court did not violate the plea agreement in this case. It 

imposed a minimum sentence of 14 months, which is squarely within the range of 5 to 23 months 

discussed at the plea hearing. The plea agreement did not promise a sentence within the lower 

portion of the 5-to-23-month range. Thus, there was no breach of the plea agreement for which 

the remedy of specific performance may be applied. 

III. INEFFECTIVE ASSISTANCE OF COUNSEL 

 Defendant argues that defense counsel provided ineffective assistance when she failed to 

obtain accurate information about his prior criminal record before advising him on the 

sentencing guidelines range at the plea hearing. We disagree. 

A. STANDARD OF REVIEW AND APPLICABLE LAW 

Defendant did not raise a claim of ineffective assistance of counsel or request a Ginther6

hearing in the trial court. Accordingly, review of this issue is limited to mistakes apparent from 

the record. People v Sabin (On Second Remand), 242 Mich App 656, 659; 620 NW2d 19 

(2000). “To demonstrate ineffective assistance of counsel, a defendant must show that his or her 

attorney’s performance fell below an objective standard of reasonableness under prevailing 

professional norms and that this performance caused him or her prejudice.” People v Nix, 301 

Mich App 195, 207; 836 NW2d 224 (2013). “To demonstrate prejudice, a defendant must show 

the probability that, but for counsel’s errors, the result of the proceedings would have been 

different.” Id. 

B. ANALYSIS 

 The record does not disclose the extent to which defense counsel investigated defendant’s 

criminal record before the plea hearing. It is possible that counsel failed to adequately 

investigate defendant’s criminal record, but she also may have conducted a reasonable 

investigation and unknowingly received inaccurate or incomplete information from another 

source, or from defendant. The fact that the prosecutor also was unaware of the full extent of 

defendant’s criminal record at the time of the plea hearing tends to negate any suggestion that 

defense counsel’s investigation was deficient. In short, it is not apparent from the available 

record that defense counsel’s investigation of defendant’s criminal record fell below an objective 

standard of reasonableness. See Nix, 301 Mich App at 207; Sabin, 242 Mich App at 659. 

 Further, defendant is unable to establish the requisite prejudice to prevail on this 

ineffective assistance of counsel claim. See Nix, 301 Mich App at 207. As previously discussed, 

the updated information presented at sentencing did not increase the upper end of the guidelines 

range that was discussed at the plea hearing, and the corrected guidelines range was completely 

subsumed within the original range. In addition, the trial court’s decision to sentence defendant 

to a minimum term of 14 months, in excess of the low end of the corrected sentencing range, 

bargaining, it is imperative that the trial judge retain this historic discretion. 

[People v Siebert, 450 Mich 500, 518; 537 NW2d 891 (1995).] 

6 People v Ginther, 390 Mich 436; 212 NW 2d 922 (1973). 
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indicates that the court was not disposed to sentence defendant to fewer than 10 months even if 

the minimum range had remained at 5 to 23 months. Moreover, defendant does not assert that he 

would have rejected the plea offer if he had known that the correct guidelines range would be 10 

to 23 months instead of 5 to 23 months. Therefore, defendant has not established a reasonable 

probability that the outcome would have been different if defense counsel and defendant had 

been aware at the plea hearing that defendant’s criminal record would result in a minimum 

guidelines range of 10 to 23 months instead of 5 to 23 months. See id. 

IV. CONCLUSION 

Defendant has failed to establish that his claims warrant relief. 

 Affirmed. 

/s/ Michael J. Riordan 

/s/ Patrick M. Meter 

/s/ Karen M. Fort Hood