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STATE OF MICHIGAN 

COURT OF APPEALS 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellee, 

UNPUBLISHED 

March 22, 2016 

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