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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Plaintiff-Appellee, UNPUBLISHED March 22, 2016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: G LEICHER , P.J., and J ANSEN and S HAPIRO , JJ.

J ANSEN , J. ( concurring ).

I agree with the majority’s conclusion that MCR 6.310(D) requi red 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 e ntitled to an ability-to-pay assessment at this time. However , I write separately to emphas ize 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 Cobbs 1 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 i s entitled to withdraw his plea if:

(a) the plea involves an agreement for a sentence for a specif ied term or within a specified range, and th e court states that it is unabl e to follow the agreement; the trial court shall then state the sentence it int ends to impose, and provide the defendant the opportu nity to affirm or withdraw the plea; or

(b) the plea involves a statement by the court that it will se ntence to a specified term or within a specified range, and the court state s that it is unable to

1 People v Cobbs , 443 Mich 276; 505 NW2d 208 (1993).-2- sentence as stated; the trial c ourt shall provide the defendant the opportunity to affirm or withdraw the plea, but s hall not state the sentence i t 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 sent encing guidelines range was 57 to 95 months’ imprisonment. The court told defendant during the p lea hearing that it would give defendant the opportunity to withdraw his plea if the court fou nd 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 def endant to a minimum sentence of 95 months’ imprisonment without informing defendant beforeha nd 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 w ith its responsibilities under MCR 3.610(B)(2).

Additionally, defense counsel’s failure to object at sentencin g to the imposition of a sentence above the lower third o f the sentencing guidelines ran ge arguably constitutes ineffective assistance of counsel. A defendant has the right to the effect ive 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 c ounsel’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 constitute d sound trial strategy. Id . at 52. In this case, however, there does not appear to be any reasonable trial strategy that would accou nt for defense counsel’s failure to challenge the sentence or to inqu ire into whether defendant wis hed to affirm or withdraw his plea. In addition, there is a r easonable probability that the trial court would have altered defendant’s sentence or that defe ndant 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 believ e that defense counsel had a duty to raise the issue in the trial c ourt and properly inform defendan t 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 w as provided in the Cobbs agreement without giving defenda nt an opportunity to withdraw h is plea. The prosecution’s argument that defendant should have said something on his own b ehalf is specious. Instead, I believe that the trial court, the prosecutor, and defense couns el all had a duty to raise the issue in the trial court in order for de fendant to have the opportunity to withdraw his plea.

However, the only argument defendant raises in his brief on ap peal with regard to the no contest plea is that the trial court abused its discretion in f ailing to abide by the Cobbs agreement and in failing to advise defendant that he had a right to withd raw his plea. Since MCR 6.310(D) required defendant to move to with draw his plea in the trial co urt in order to raise the issue on appeal, I concur with the result reached by the majority. If M CR 6.310(D) did not require defendant to move to withdraw his plea before raising the issue on appeal, however, I would-3- remand the case to the trial cour t to give defe ndant an opportu nity to withdraw his plea since I do not believe that defendant should bear the consequence of the f ailure of the trial court, defense counsel, and the prosecutor to r aise the issue. Therefore, I r espectfully concur.

/s/ Kathleen Jansen