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STATE OF MICHIGAN 

COURT OF APPEALS 

PEOPLE OF THE STATE OF MICHIGAN, 

 Plaintiff-Appellant, 

UNPUBLISHED 

November 22, 2016 

v No. 328323 

Washtenaw Circuit Court 

AVANTIS DOMINIQUE PARKER, LC No. 13-000157-FC 

 Defendant-Appellant. 

Before: RONAYNE KRAUSE, P.J., and O’CONNELL and GLEICHER, JJ. 

PER CURIAM. 

 The prosecution dismissed several charges against defendant and agreed to a sentence of 

121⁄2 to 15 years despite defendant’s admission that he aided and abetted a murder. The trial 

court later determined that defendant’s extensive cooperation with the prosecutor merited an 

even lower sentence. Although the court had discretion to reject the sentencing agreement, it 

was required to advise the prosecution of the sentence it intended to impose and allow the 

prosecution an opportunity to withdraw the plea agreement. The court failed to do so. 

Accordingly, we reverse and remand for further proceedings. 

I. BACKGROUND 

 On September 16, 2013, defendant pleaded guilty to interfering or tampering with a 

witness and second-degree murder for his role in the killing of Charles Brandon. At the plea 

hearing, Washtenaw County assistant prosecuting attorney Dianna Collins advised the court that 

the parties had reached a plea agreement. In exchange for defendant’s promise to truthfully 

testify against various accomplices, the prosecution promised to dismiss five other charges. 

They also reached a sentence agreement of 121⁄2 to 15 years’ imprisonment. 

 Over the next several months, defendant testified against other individuals involved in 

Brandon’s murder. He also implicated a fellow witness for perjury and assisted the Wayne 

County prosecutor in a related case. In preparation for his February 11, 2015 sentencing hearing, 

defendant filed a memorandum seeking a lesser penalty than negotiated with the prosecutor. 

Defendant emphasized the peril he and his family had faced as a result of his cooperation and 

contended he went above and beyond what was originally asked by the prosecutor. 

 At sentencing, defendant indicated that counsel gave prosecutor Collins a draft of the 

sentencing memorandum before filing and incorporated the prosecutor’s suggested revisions. 
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Defendant acknowledged the 121⁄2-to-15-year sentencing agreement and that he “kn[e]w the 

People would call for that sentence today,” but cited People v Brontkowski, unpublished opinion 

of the Court of Appeals, issued March 25, 2014 (Docket No. 313002), for the proposition that a 

court may deviate from a sentencing agreement after the defendant has completed his or her end 

of the bargain. Defendant urged the court to deviate from the agreement under the 

circumstances. Defendant concluded, “And I think that the People, while they call for the 

sentence to be imposed that was agreed to, agreed the Court has that authority, that that won’t 

disturb the convictions of the other people and the Court has that authority.” 

 Prosecutor Collins conceded that she had received defendant’s memorandum and made a 

“factual review.” She requested revisions, which the defense had incorporated. Collins 

emphasized that defendant’s actual sentencing guidelines range was 30 to 100 years’ 

imprisonment. She contended that the factors cited by defendant in support of further leniency 

were already considered during negotiations. Collins acknowledged that some new 

circumstances had arisen and noted she “frankly disagree[d] with very little, if anything, that 

[defense counsel] has said.” She requested, however, that the court abide by the sentence 

agreement. 

 Ultimately, the court determined that it had “some limited discretion with regard to a 

sentence agreement entered into by the parties.” The court sentenced defendant to concurrent 

terms of 10 to 15 years for each conviction. At the conclusion of the hearing, prosecutor Collins 

indicated that she would dismiss the remaining five charges. The court entered the judgment of 

sentence on February 20, 2015. 

 Fifteen days after the sentencing hearing and six days after entry of the judgment of 

sentence, the prosecution, through replacement counsel, filed a “motion to correct an invalid 

sentence.” Citing People v Siebert, 450 Mich 500; 537 NW2d 891 (1995), the prosecutor 

contended that the trial court was not permitted to deviate from the sentencing agreement without 

allowing the prosecution the opportunity to withdraw the plea agreement. The prosecutor further 

asserted that the court was required to notify the state in advance “that it was contemplating a 

more lenient sentence.” Prosecutor Collin’s request to follow the sentencing agreement, the 

prosecutor argued, was sufficient to preserve the prosecution’s objection and request to withdraw 

the plea agreement. 

 Defendant retorted that the prosecutor’s comments at sentencing did not equate with a 

request to withdraw the plea agreement and therefore the prosecution waived its challenge. 

Similarly, defendant contended that he purposefully approached the prosecutor before filing his 

sentencing memorandum to ensure her cooperation and that prosecutor Collins “orally confirmed 

that she was not going to object to our request.” The prosecutor then failed to file a response to 

the sentencing memorandum, impliedly accepting the facts and law recited therein. Defendant 

continued that his sentence was valid, precluding any modification. Defendant noted that he had 

complied with his end of the bargain, as evidenced by the prosecutor’s dismissal of the other five 

charges levied against him. Finally, defendant asserted, double jeopardy principles precluded the 

court from now imposing a harsher penalty for his offenses. 

 The trial court denied the prosecutor’s motion, finding that prosecutor Collins “did not 

object to the Court relying on the Brontkowski case to impose a lower sentence tha[n] was 
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reached in the sentence agreement and did not request the Court to allow the [prosecutor] to 

withdraw from the plea/sentence agreement and proceed to trial.” This was insufficient to 

preserve a challenge under Siebert and therefore the sentence imposed was valid. 

 The prosecution thereafter filed an application for leave to appeal, which this Court 

granted. People v Parker, unpublished order of the Court of Appeals, entered September 14, 

2015 (Docket No. 328323). 

II. ANALYSIS 

 As noted by our Supreme Court, plea bargaining is “a permanent feature” of criminal 

proceedings. Siebert, 450 Mich at 509. 

Plea bargains, however, are more than contracts between two parties. As the 

judicial representative of the public interest, the trial judge is an impartial party 

whose duties and interests are separate from and independent of the interests of 

the prosecutor and defendant. The court’s interest is in seeing that justice is done. 

In the context of plea and sentence agreements, the court’s interest in imposing a 

just sentence is protected by its right to reject any agreement, except that which 

invades the prosecutor’s charging authority. A trial court . . . may protect its 

sentencing discretion by rejecting sentence agreements. In this sense, neither the 

prosecutor nor the defendant can dictate the sentence. [Id. at 509-510.] 

 A trial court may not reject a sentencing agreement out of hand, however. 

[A] prosecutor, like a defendant, is entitled to learn that the judge does not intend 

to impose the agreed-upon sentence, to be advised regarding what the sentence 

would be, and given an opportunity to withdraw from the plea agreement. The 

procedures outlined in [People v Killebrew, 416 Mich 189; 330 NW2d 834 

(1982),] provide that the defendant may withdraw his plea when a sentence 

agreement or recommendation will not be satisfied in order to protect the 

defendant’s right “to make a knowing and intelligent waiver of his right to trial 

and its companion rights.” Id. at 210. The prosecution has an equal, though 

different, constitutional interest at stake insofar as it is constitutionally entrusted 

with authority to charge defendants. . . . In a case where the prosecutor has 

lowered the charges against the defendant—reducing either the number of counts 

charged or the level of those charges—with the understanding of a certain 

minimum sentence, the agreement is conditioned upon imposition of the specified 

sentence. Were a court allowed to maintain its acceptance of the plea over the 

prosecutor’s objection, it would effectively assume the prosecutor’s constitutional 

authority to determine the charge or charges a defendant will face. . . . 

 Therefore, the trial court’s exclusive authority to impose sentence does not 

allow it to enforce only parts of a bargain. A court may not keep the prosecutor’s 

concession by accepting a guilty plea to reduced charges, and yet impose a lower 

sentence than the one for which the prosecutor and the defendant bargained. 

Accepting a plea to a lesser charge over the prosecutor’s objection impermissibly 
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invades the constitutional authority of the prosecutor. . . . When a court receives 

information that in its judgment dictates a lower sentence, it must alert the 

prosecutor of the sentence it intends to impose and allow the prosecutor to 

withdraw from the plea. [Id. at 510-511 (emphasis added).] 

Siebert demands that when a trial court determines to impose a more lenient sentence than that 

agreed to by the prosecutor and defendant, the court must “hear[] from the parties” first. Id. at 

515-516. “If the court decides to reject the agreement, the prosecution should be informed of the 

intended sentence before it must decide whether to object and withdraw.” Id. at 516. 

 The trial court did not follow Siebert’s mandatory procedure in this case. Specifically, 

the court did not inform the prosecution of its intended sentence before imposing it. The court 

heard defendant’s argument that a more lenient sentence was in order. The court also considered 

the prosecutor’s rebuttal. However, the court did not inform the parties of the intended sentences 

and then allow the prosecutor to decide whether to withdraw the plea agreement. Instead, the 

court imposed the concurrent 10-to-15-year sentences at the conclusion of its ruling and 

immediately notified defendant of his appellate rights. The court did not allow the prosecutor an 

opportunity to withdraw the plea agreement before imposing sentence. This interfered with the 

prosecutor’s constitutional charging authority. 

 This Court’s opinion in Brontkowski does not change this result. First, Brontkowski is 

unpublished and therefore is not binding precedent. MCR 7.215(C)(1). Second, Brontkowski

does not give trial courts free reign to ignore sentencing agreements. Rather, Brontkowski

addressed a defendant’s due process and confrontation clause challenge when a witness was later 

given a more lenient sentence than divulged to the jury at the defendant’s trial. Id., unpub op at 

1. As the witness’s sentence reduction did not create a constitutional deficiency in the 

underlying trial, the court’s action was not prohibited. But Brontkowski does not control the 

procedure to be followed at the subject witness’s sentencing hearing. Neither does this Court’s 

opinion in Brontkowski’s co-defendant’s case control, contrary to the trial court’s reasoning. 

See People v Bosca, 310 Mich App 1, 33; 871 NW2d 307 (2015) (holding “[a]lthough defendant 

contends that the trial court ultimately imposed on [the witness] a more lenient sentence,” the 

prosecutor “made the requisite disclosure” at the defendant’s trial and did not engage in 

misconduct). 

 And contrary to defendant’s contentions, the prosecutor did not waive her right to 

withdraw the plea agreement. Forfeiture and waiver should not be conflated. Forfeiture is the 

failure to assert a right while waiver “is the intentional relinquishment or abandonment of a 

known right.” People v Vaughn, 491 Mich 642, 663; 821 NW2d 288 (2012) (quotation marks 

and citation omitted). Waiver extinguishes the error, leaving nothing for review; forfeiture does 

not. Id. Here, the prosecutor vigorously argued against the trial court’s imposition of a more 

lenient sentence. She did not specifically request to withdraw the plea agreement, but neither did 

she raise and intentionally relinquish the right to pursue that remedy. Accordingly, we may at 

least review the court’s action for plain error, People v Carines, 460 Mich 750, 763-764; 597 

NW2d 130 (1999), and such error clearly occurred at defendant’s sentencing. 

 The question then becomes what remedy is available. MCR 6.429(A) limits a court to 

correcting “an invalid sentence.” A sentence is not invalid merely because the court does not 
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follow the sentencing agreement. People v Pool, 183 Mich App 191, 192-193; 454 NW2d 121 

(1989). But a sentence in defiance of a sentencing agreement is deemed invalid if the court does 

not follow the procedure outlined in Siebert. Siebert, 450 Mich at 515, 519. It is settled law that 

remand for resentencing in the face of an invalid sentence does not violate double jeopardy 

principles. See US Const, Ams V and XIV; Const 1963, art 1, § 15; Siebert, 450 Mich at 511 n 

6, 515-516; People v Siebert, 201 Mich App 402, 418-426; 507 NW2d 211 (1993). 

 On remand, defendant may elect to “reaffirm” his plea agreement, ask the trial court for 

specific performance of the sentencing agreement, and accept a sentence of 121⁄2 to 15 years. See 

People v Killebrew, 416 Mich 189, 209-210; 330 NW2d 834 (1982). Alternatively, the 

prosecution may accede to the sentence imposed, essentially entering into a new sentencing 

agreement. Should the prosecutor persist, defendant or the trial court may decline to abide by the 

sentence agreement. The court must then allow the prosecution an opportunity to withdraw the 

plea agreement. Id. at 510. If the agreement is withdrawn, “the case may proceed to trial on any 

charges that had been brought or that could have been brought against the defendant if the plea 

had not been entered.” MCR 6.312. 

 We reverse and remand for further proceedings consistent with this opinion. We do not 

retain jurisdiction. 

/s/ Peter D. O'Connell 

/s/ Elizabeth L. Gleicher