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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED June 22, 2017

v No. 330429 Oakland Circuit Court KENNETH JACKSON, LC No. 2015-253328-FH

Defendant-Appellant.

Before: F ORT H OOD , P.J., and C AVANAGH and R ONAYNE K RAUSE , JJ.

P ER C URIAM

. Defendant appeals as of right his jury convictions of carrying a concealed weapon (CCW), MCL 750.227; felon in possession of a firearm, MCL 750.2 24f; and possession of a firearm during the commission of a felony (felony-firearm), thi rd offense, MCL 750.227b(1). We affirm.

Defendant first argues that the trial court erred by denying h is motion to suppress evidence obtained from the wa rrantless patdow n search of his pe rson. We disagree.

“In considering a motion to suppress evidence, this Court rev iews a trial court’s factual findings to determine if they are clearly erroneous and reviews a trial court’s conclusions of law de novo.” People v Snider , 239 Mich App 393, 406; 608 NW2d 502 (2000). “A finding of fa ct is clearly erroneous if, after a review of the entire record, a n appellate court is left with a definite and firm conviction that a mistake has been made.” People v Roberts , 292 Mich App 492, 502; 808 NW2d 290 (2011) (citation omitted).

“The lawfulness of a search o r seizure depends on its reasona bleness.” Snider , 239 Mich App at 406. “Generally, a search conducted without a warrant i s unreasonable unless there exist both probable cause and a circums tance establishing an exceptio n to the warrant requirement.” Id . at 407 (quotation marks and citation omitted). However, “ ‘a police officer may in appropriate circumstances and inan appropriate manner approacha person for purposes of investigating possibly criminal behavior even though there is n o probable cause to make an arrest.’ ” People v Custer , 465 Mich 319, 326-327; 630 NW2d 870 (2001), quoting Terry v Ohio , 392 US 1, 22; 88 S Ct 1868; 20 L Ed 2d 889 (1968). “Police o fficers may make a valid investigatory stop if they possess ‘reasonable suspicion’ that crime is afoot.” People v Champion , 452 Mich 92, 98; 549 NW2d 849 (1996).-2- Furthermore, “[a] police officer may perform a limited patdown search for weapons if the officer has a reasonable suspici on that the individual is armed , and thus poses a danger to the officer or to other persons.” Custer , 465 Mich at 328. “The officer need not be absolutely certain that the individual is ar med; the issue is whether a re asonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Id . (quotation marks and citation omitted). “Reasonable suspicio n entails something more than an inchoate or unparticularized s uspicion or ‘hunch,’ but less than the level of suspicion required for probable cause.” Champion , 452 Mich at 98. “ Terry strictly limits the permissible scope of a patdown search to that reasonab ly designed to discover guns, kn ives, clubs, or other hidden instruments that could be used to assault an officer.” Id . at 99. “In order to demonstrate reasonable suspicion, an officer m ust have specific and articul able facts, which, taken together with rational inferences from t hose facts, reasonably warrant [ the] intrusion.” Custer , 465 Mich at 328 (quotation marks and citation omitted).

As an initial matter, Deputy Robert Smith was lawfully present on the premises and did not need a warrant. We have previously held that “going into a commercial place open to the public” is not a violation of an individual’s reasonable expect ation of privacy. Peterson Novelties, Inc v City of Berkley , 259 Mich App 1, 23; 672 NW2d 351 (2003). Here, it is undisputed that the door to the establishment was open to the p ublic, and the police officers could enter without violating defe ndant’s reason able expectatio n of privacy.

Further, the patdown search of defendant that resulted in disc overing the handgun did not violate defendant’s constitutional rights. Deputy Smith testif ied that after he walked into the building and defendant approached him, he immediately noticed t hat defendant’s jacket was hanging on the left side as if t here was a weighted object in d efendant’s jacket. Based on his 20 years of experience as a police officer, he believed that defen dant had a weapon. Deputy Smith then asked defendant if he had a weapon, and defendant admitted he had a gun. At this point, according to Deputy Smith, he had reason to believe there was c riminal activity, and he patted down defendant. A loaded handgun was discovered in defendant’s left coat pocket, and defendant did not produce a CPL. While defendant attempts to c ast the patdown as one that was justified after the fact by the discovery of the gun, this argu ment has no merit. Deputy Smith was not required to be certain about the type of weapon he woul d find before conducting the patdown, and he articulated speci fic facts that would lead a re asonably prudent person under the circumstances to conclude that de fendant posed a safety threat. See Custer , 465 Mich at 328. Therefore, the patdown search for weapons was permissible and d id not violate the Fourth Amendment. See id .; see also People v Taylor , 214 Mich App 167, 169-170; 542 NW2d 322 (1995).

Defendant’s argument on appeal essentially relies on treating his testimony and that of Jennifer Core as the more credible version of the events. Howe ver, Core’s testimony did not occur until trial, after the tri al court had already ruled on t he pretrial motion to suppress. Moreover, Core’s testimony substa ntially agreed with defendant’ s testimony and his version conflicted with the testimony of Deputy Smith. This Court has stated that when reviewing a trial court’s decision on a motion to suppress, “[i]f resolution of adisputed factual question turns on the credibility of witnesses or the weight of the evidence, we will defer to the trial court, which had a superior opportunity to evaluate these matters.” Roberts , 292 Mich App at 503-504 (quotation marks and citation om itted). Clearly, the trial court determined that Deputy Smith’s-3- testimony—that he saw what appeared to be a weapon in defendant ’s pocket and then conducted a patdown for weapons—was credible and we defer to that finding on appeal. Accordingly, the trial court properly denied de fendant’s motion to suppress.

Next, defendant raises several issues in his Standard 4 brief. 1 We address each of defendant’s arguments in turn.

First, defendant appears to argue that he should have been per mitted to enter a conditional plea after the trial court denied his motion to sup press so that he could preserve his right to appeal that decision. See MCR 6.301(C)(2). This issu e is moot because, as discussed above, the trial court properly de nied defendant’s motion to su ppress. This Court does not decide moot issues. People v Sours , 315 Mich App 346, 352; 890 NW2d 401 (2016).

Next, defendant appears to argue that the trial court erred du ring the process of allowing him to withdraw his plea pursuant to a Cobbs 2 agreement because the court specified that defendant could either accept the recommendation of the probati on department or withdraw his plea. Because defendant did not object to the trial court’s st atement or to being allowed to withdraw his plea, this issue is unpreserved. See People v Metamora Water Serv, Inc , 276 Mich App 376, 382; 741 NW2d 61 (2007). We review unpreserved issues for plain error affecting substantial rights, i.e., error that affected the outcome of th e proceedings. People v Carines , 460 Mich 750, 763-764; 597 NW2d 130 (1999).

In People v Cobbs , 443 Mich 276; 505 NW2d 208 (1993), our Supreme Court held tha t

[a]t the request of a party, and not on the judge’s own initiat ive, a judge may state on the record the length of sentence that, on the basis of the information t hen available to the judge, appears to be appropriate for the charg ed offense.

To avoid the potential for coercion, a judge must not state or imply alternative sentencing possibilities on the basis of future pro cedural choices, such as an exercise of the defendant ’s right to trial by jury or by the court.

The judge’s preliminary evaluation of the case does not bind t he judge’s sentencing discretion, since additional facts may emerge during later proceedings, in the presentence report, thr ough the allocution afforded to t he prosecutor and the victim, or from other sources. However, a defendant who pleads guilty or nolo contendere in reliance upon a j udge’s preliminary evaluation wi th regard to an appropriate sentence has an absol ute right to withdraw the plea if the judge later determines that the sentence must exceed the preliminary evalua tion. [ Id . at 283 (footnote omitted).]

1 See Michigan Supreme Court Ad ministrative Order 2004-6, Standa rd 4.

2 People v Cobbs , 443 Mich 276; 505 NW2d 208 (1993).-4- In People v Williams , 464 Mich 174, 180; 626 W2d 899 (2001), the Court clarified “t hat in informing a defendant that the sentence will not be in accordan ce with the Cobbs agreement, the trial judge is not to specify the actual sentence that would be imposed if the plea is allowed to stand.” See also MCR 6.310(B)(2)(b).

Here, the trial court indicated that it could not follow the Cobbs agreement and properly gave defendant the opportunityto withdraw his plea. See Cobbs , 443 Mich at 283; see also MCR 6.310(B)(2)(b). However, the trial court plainly erred by stating “My position is he accepts the recommendation of the probation department or he wi thdraws the plea.” The trial court essentially informed defendant of its intended sentence i f defendant maintained his guilty plea, i.e., the same sentence that the probation department had recommended in the presentence investigation report (PSIR). See id .; Williams , 464 Mich at 180. However, defendant has failed to show that this error affected his substantial rights. He ex ercised his right to withdraw his plea when the trial court indicated that it would not follow the Cobbs agreement. Thus, the trial court’s error of indi cating its intended se ntence did not induc e defendant to plead guilty and waive his right to a trial. In other words, the error did not implicate the concern for improper coercion on the part of the trial court, which is the purpose b ehind the rule prohibiting the trial court from indicating its intended sentence when it determines that it cannot follow the Cobbs agreement. See id . at 170; Cobbs , 443 Mich at 283. Accordingly, defendant has failed to establish plain erro r requiring reversal on this ground. See Carines , 460 Mich at 763.

Next, defendant argues that the trial court erred by denying h is motion to quash that was predicated on the prosecutor’s amendment of the information to change defendant’s charge on the felony-firearm count from a second offense to a third offen se. We disagree.

“[A] trial court’s decision on a motion to quash an informatio n [is] reviewed for an abuse of discretion.” People v Dowdy , 489 Mich 373, 379; 802 NW2d 239 (2011). “A trial court abuses its discretion when its decision falls outside the range of reasonable and principled outcomes.” People v Waterstone , 296 Mich App 121, 131-132; 818 NW2d 432 (2012). Questions of statutory interpretation are reviewed de novo, and “[t]o the extent that a lower court’s decision on a motion to quash the information is based on an interpretation of the law, appellate review of the in terpretation is de novo.” People v March , 499 Mich 389, 397; 886 NW2d 396 (2016) (quotation marks and citations omitted).

The felony-firearm statute, MCL 750.227b, provides different p unishments for repeated violations of the statute, stating in relevant part:

(1) A person who carries or has in his or her possession a fir earm when he or she commits or attempts to commit a felony, except a violati on of section 223, 227, 227a, or 230, is guilty of a f elony and shall be punished by imprisonment for 2 years. Upon a second convictio n under this subsection, the p erson shall be punished by imprisonment for 5 years. Upon a third or subseque nt conviction under this subsection, the pers on shall be punished by imprison ment for 10 years.

The Michigan Supreme Court has stated that the felony-firearm statute only “requires proof beyond a reasonable doubt that a defendant carried a fire arm during the commission or attempted commission of a felony and nothing more” and that “wh ether a defendant was a first-,-5- second-, or third-time offender under the felony-firearm act af fects only the duration of the defendant’s sentence.” People v Miles , 454 Mich 90, 99-100; 559 NW2d 299 (1997). “Due process protections afforded def endants subject t o such sentenc e enhancement provisions are less than those afforded defendants for the substantive offense, bec ause the enhancement is not a separate element that must be proved beyond a reasonable doubt. ” Id . at 100.

In People v Williams , 215 Mich App 234, 235; 544 NW2d 480 (1996), the defendant argued on appeal that his five-year term of imprisonment as a s econd-time felony-firearm offender was erroneous as a matter of law. He argued that “he was denied due process because he was not charged as a second offender under the felony-firear m statute, and he did not plead guilty of being a second-time felony-firearm offender.” Id . The Williams Court held that “[w]henever sentence enhancement is authorized, due process doe s not require that the prosecution separately charge the defendant as a second-time of fender, nor is the defendant entitled to an adversarial hearing before the prior convictions are used for sentencing purposes.” Id . at 236. There is a distincti on between sentence-enhancement statutes, such as the felonyfirearm statute, and the habitual offender statutes. 3 Id . “[D]ue process is satisfied as long as the sentence is based on accurate information and the defendant has a reasonable opportunity at sentencing to challenge that information.” Id

. Here, the prosecution was not required to separately charge de fendant as a third-time offender of the felony-firearm statute. See id . And defendant has never contested the accuracy of his prior felony-firearm convictions although he had a reaso nable opportunity to make such challenges. “The court before, during, or after trial may perm it the prosecutor to amend the information or the notice of int ent to seek enhanced sentence u nless the proposed amendment would unfairly surprise or prej udice the defendant.” MCR 6.112 (H). There is nothing unfair or prejudicial about putti ng defendant on notice of his status as a third-time felony firearm offender in such a way that gives him the reasonable opportunity to chal lenge the accuracy of his prior convictions. Defendant’s prior felony-firearm convictions were not an element of the instant felony-firearm offense. See Miles , 454 Mich at 100. Therefore, the applicable due process requirements were satisfied. See Williams , 215 Mich App at 236. Defendant essentially attempts to treat the felony-firearm sentence enhancement as re quiring procedures analogous to habitual offender sentencing enhancements, but our Supreme Cour t has drawn a clear distinction between the two and has indicate d that subsequent offenders und er the same statute are not entitled to early notice of the enhancement. People v Eason , 435 Mich 228, 232; 458 NW2d 17 (1990).

While defendant cites to MCR 6.112, there is nothing in this c ourt rule requiring any kind of notice with respect to a sentencing enhancement under the fe lony-firearm statute. Again, the habitual offender provisions are inapplicable to the felony-fir earm sentence enhancements. Williams , 215 Mich App at 235-236. Additionally, defendant complains t hat the information was not signed by the prosecutor as required by MCR 6.112(D). However, defendant did not object to the lack of a signature, and has not explained how he was allegedly prejudiced by this

3 See MCL 769.10 through MCL 769.13.-6- omission. There is no reason to r everse defendant’s convictionon this ground. See MCL 767.76; People v McGee , 258 Mich App 683, 687; 672 NW2d 191 (2003). In summary, the trial court did not abuse its disc retion by denying defendant’s motio n to quash. See Dowdy , 489 Mich at 379.

Finally, defendant argues that he was denied the effective ass istance of counsel with regard to his decision to withdraw his plea because defense cou nsel told him that he could not receive a longer prison term than what was recommended in the P SIR but, after he withdrew his plea, his mandatory felony-firearm sentence was doubled when th e information was amended to charge him with felony-firearm, third offense. We disagree. B ecause defendant did not seek a new trial or evidentiary hearing in the trial court, we review this unpreserved issue for errors apparent on the record. People v Sabin (On Second Remand) , 242 Mich App 656, 658-659; 620 NW2d 19 (2000).

To establish a claim of ineffective assistance of counsel a de fendant must show that: (1) counsel’s performance was below an objective standard of reason ableness, (2) there is a reasonable probability that, but f or counsel’s error, the resul t of the proceedings would have been different, and (3) the resultantproceedings were fundamentallyunfair or unreliable. People v Toma , 462 Mich 281, 302; 613 NW2d 694 (2000); Sabin (On Second Remand) , 242 Mich App at 659. “Effective assistance of c ounsel is presumed,” and “[t]he defendant bears a heavy burden of proving otherwise.” People v Rockey , 237 Mich App 74, 76; 601 NW2d 887 (1999).

Defendant’s ineffective assist ance of counsel claim fails. Ev en if his counse l should have been aware of the potential for the amended charge, defendant c annot establish that he was prejudiced by his counsel’s failure to advise him of that possi bility. That is so because a trial court may modify and enhance a defendant’s sentence after sente ncing under the felony-firearm statute based on the repeat offense provision if the trial cour t was unaware of the defendant’s prior felony-firearm conviction a t the time of the original sen tencing. See Miles , 454 Mich at 96- 101. “Although the auth ority of the court over a defendant typ ically ends when a valid sentence is pronounced, the court may corr ect an invalid sentence after sentencing.” Id . at 96. “A sentence may be invalid no matter whom the error benefits becau se sentencing must not only be tailored to each defendant, but also satisfy society’s need for protection and its interest in maximizing the offender’s rehabilitative potential[.]” Id . at 98 (quotation marks and citation omitted).

In Miles , the defendant was convicted of armed robbery and felony-firea rm and received a two-year consecutive sentence for the felony-firearm convicti on because the PSIR did not show that the defendant had a prior felony-firearm conviction. Id . at 92. After sentencing, the trial court was informed that the defendant had a prior felony- firearm conviction and entered an amended judgment of sentence or dering the defendant to serve a five-year prison term for the felony-firearm conviction, without giving notice to either part y and without holding a resentencing hearing. Id . at 92-94. The Michigan Supreme Court held: “Because of the importance of accuracy in sentencing we find that the original felony-firearm sentence was invalid and subject to modification by the trial court under MC R 6.429(A).” Id . at 98. And the new sentence was affirmed because the defendant admitted the ac curacy of the prior felonyfirearm conviction and because the trial court was bound by the enhancement provision of MCL 750.227b(1). Id . at 101.-7- Likewise, here, defendant does not contest the accuracy of his prior felony-firearm convictions and thus would have been subject to having his sent ence corrected to reflect his third-offender status even if he had maintained his guilty plea and been originally sentenced to a five-year term as a second-time felony-firearm offender. See id . at 98, 101. In other words, even if defense counsel performed below an objective standard of rea sonableness, defendant has not satisfied the prejudice prong of the test because he does not h ave a right to receive an invalid sentence. Accordingly, defendant cannot establish that he rece ived ineffective assistance of counsel.

Affirmed.

/s/ Karen M. Fort Hood /s/ Mark J. Cavanagh /s/ Amy Ronayne Krause