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### STATE OF MICHIGAN

COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN,

Plaintiff-Appellee, UNPUBLISHED May 12, 2015

v No. 321451 Oakland Circuit Court REGINALD FIDEL DANIELS, LC No. 2013-247909-FH

Defendant-Appellant.

Before: R IORDAN , P.J., and J ANSEN and F ORT H OOD , JJ.

P ER C URIAM

. Defendant appeals by leave gran ted his guilty plea conviction for use of a controlled substance, MCL 333.7404(2)(a). Def endant was sentenced to 79 d ays’ jail time, two years’ probation, and to write a 500-word essay on the dangers of usin g controlled substances. We affirm defendant’s conviction a nd sentence but remand for compl etion of the ministerial task of correcting defendant’s Presenten ce Investigation Report (PSIR).

Defendant was charged with possession of crack cocaine after a police officer witnessed defendant drop a small bag, whic h contained crack cocaine, in a n apartment complex parking lot. In exchange for a guilty plea, the prosecution offered defendan t the lesser charge of use of a controlled substance. Additiona lly, the trial court placed a Cobbs 1 agreement on the record, stating that if defendant were to plead guilty, the trial court would limit his sentence to time served. Defendant agreed, and the plea offer and Cobbs agreement were pl aced on the record.

At sentencing, defendant and the prosecution notified the tria l court that the PSIR did not contain the plea offer or Cobbs agreement. The trial court stated that it believed the PSIR sh ould contain that information but never ordered that the PSIR be ame nded. The trial court then indicated that it believed it n ecessary to sentence defendant t o two years’ probation and to write a 500-word essay on the dangers o f using illicit drugs in additio n to defendant’s tim e served in jail. Defendant urged the trial court to abide by the Cobbs agreement and limit the sentence to time served. The prosecution indicated that it believed that the tr ial court was free to add probation and an essay, believing the Cobbs agreement was silent on those issues and was only limited

1 People v Cobbs , 443 Mich 276; 505 NW2d 208 (1993).-2- with regard to the time of incarceration. The trial court agre ed with the prosecution and sentenced defendant to time serve d in jail, two years’ probatio n, and to write the aforementioned essay. Defendant was sentenced on February 6, 2014, and advise d of his right to file an appeal. In the trial court, defendant never moved to withdraw his guilt y plea. He filed a delayed application for leave t o appeal on April 23, 2014, and now appe als by leave granted. 2

Defendant first argues that the trial court was required to ei ther follow the Cobbs agreement or permit defendant to withdraw his guilty plea. We are precluded from considering this argument. MCR 6.310(D) states that, “[a] defendant convic ted on the basis of a plea may not raise on appeal any claim of noncompliance with the require ments of the rules in this subchapter . . . unle ss the defendant has moved to withdraw the plea in the trial court, raising as a basis for withdrawal the claim sought to be raised on appeal.” The facts clearly exhibit that defendant never moved to withdraw his plea before the trial cou rt. “Because defendant failed to file a motion to withdraw his plea in the circuit court, appell ate review of this issue is precluded.” People v Armisted , 295 Mich App 32, 48; 811 NW2d 47 (2011); People v Dixon

, 217 Mich App 400, 410; 552 NW2d 663 (1996). 3

Defendant also claims that the PSIR is incorrect, in that it s hould reflect the Cobbs and plea agreements placed on the record. The prosecution likewise concedes that the PSIR should be amended. We agree. “This Court reviews a trial court’s res ponse to a defendant’s challenge to the accuracy of a PSIR for an abuse of discretion.” People v Uphaus (On Remand) , 278 Mich App 174, 181; 748 NW2d 899 (2008).

MCL 771.14(6) and MCR 6.425(E)(2) explicitly require that a PS IR be corrected when determined to have incorrect i nformation. Further, our previou s decision in People v Norman

, 148 Mich App 273, 275; 384 NW2d 147 (1986), reflects the import ance of the Department of Corrections being properly informed via correct PSIRs. Because the PSIR was incorrect in that it did not reflect the plea offer or Cobbs agreement reached during the plea hearing, the trial court abused its discretion in not correcting the PSIR, and we remand for the ministerial act of correcting the PSIR. See MC L 771.14(6); MCR 6.425(E)(2).

2 People v Daniels , unpublished order of the Court of Appeals, entered June 12, 2 014 (Docket No. 321451).

3 We do note, however, that pursuant to Cobbs , 443 Mich at 283, “a defe ndant who pleads guilty or nolo contendere in reliance u pon a judge’s preliminary evalu ation with 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 evaluation.” The tria l court exceeded its preliminary evaluation by adding probation and an essay, and should have gi ven defendant an option to withdraw his plea. Barring the preclusion provided by MCR 6.31 0(D), we would have been required to vacate defendant’s sentence and remand to the trial court with directions that the trial court sentence defendant according to the Cobbs agreement or permit him the option of withdrawing his plea. Cobbs , 443 Mich at 283.-3- Remanded for the sole purpose of correcting the PSIR to reflec t the plea and Cobbs agreements, otherwise affirme d. We do not retai n jurisdiction.

/s/ Michael J. Riordan /s/ Kathleen Jansen /s/ Karen M. Fort Hood