Opinion
353209
01-13-2022
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v. JOSEPH LEE JONES, Defendant-Appellant.
UNPUBLISHED
Genesee Circuit Court LC No. 19-045059-FH
Before: Gleicher, C.J., and Borrello and Ronayne Krause, JJ.
Per Curiam.
Joseph Lee Jones pleaded guilty to charges levied against him in exchange for a sentence at "the bottom of the guidelines." Jones opines that this required the court to impose the lowest minimum sentence possible under the guidelines as preliminarily calculated by the parties at time of the plea taking. The court disagreed and imposed a minimum sentence at the lower end of the guidelines, both as preliminarily calculated and after officially calculated by the Department of Corrections (DOC). This comported with the plea agreement and Jones was not entitled to withdraw his plea on this basis. We affirm.
I. BACKGROUND
In January 2019, Jones and a codefendant forcibly stole a woman's purse in a store parking lot and then drove to a gas station where they used the woman's credit card to fill their tank. When the police came to his home to arrest him, Jones and his codefendant hid in a crawl space in the basement. Jones refused to exit and resisted the officers' attempts to extricate him. Officers deployed their tasers to force Jones's compliance.
Jones agreed to plead guilty to the charges against him-three counts of resisting or obstructing an officer, MCL 750.81(d)(1), and one count each of unarmed robbery, MCL 750.530, and stealing or retaining a financial transaction device without consent, MCL 750.157n(1)-in exchange for favorable sentencing (although as a fourth-offense habitual offender). At issue below and on appeal is exactly what the parties intended Jones's minimum sentence to be.
The day before trial was scheduled to begin, the court held a pretrial conference. The prosecutor and defense counsel preliminarily scored the guidelines and approximated the minimum guidelines range at 29 to 114 months. The prosecutor agreed that if Jones pleaded guilty, he would not object to a sentence at "the bottom of the guidelines." The trial court stated that it generally sentenced defendants at the "higher end" of the guidelines range but agreed to honor the sentencing agreement for the "low end of the guidelines." Both the prosecutor and defense counsel approved of the court's statement.
The trial court told Jones that if he pleaded guilty, "with the discussions that we had on the offer, um, your minimum, it would roughly I think it was 29 months, you have four months credit." The parties clarified that considering Jones's four months of jail credit, his minimum sentence would be 25 months. The trial court reiterated that "the [o]ffer that was made, your guideline calculation, was 29 months on the minimum, um, 29 to . . . 114," and continued that if Jones rejected the offer, "I usually go on the higher end of the minimum range, about nine and a half years the minimum in the event that you were found guilty[.]" Jones rejected the offer and the prosecutor revoked it.
On the day scheduled for trial Jones requested that the prosecutor renew his offer, but the prosecutor declined. In the alternative, Jones asked the trial court to "consider entering into a COBBS agreement consistent with what the offer was yesterday and I had . . . expressed to counsel that . . . I would be willing to do that." The following exchange occurred between the trial court, defense counsel, and Jones:
People v Cobbs, 443 Mich. 276; 505 N.W.2d 208 (1993).
The Court. Now, part of this plea agreement was, and as I had stated on the record, anticipated by a COBBS agreement, your sentencing guidelines, um, the attorneys actually sat in my office and scored them and the minimum range was 29 to 118 months if I recall - -
Defense Counsel. 114.
The Court. Plus - - 114, plus you will have four months of credit after you maxed out on your parole. So do you understand that, that was what was anticipated when we had the plea discussions yesterday?
[Jones]. I do.
Jones then pleaded guilty to all five counts.
At sentencing, Jones's applicable minimum guidelines range had been recalculated by the DOC and, after challenges to various sentencing variables, was set at 36 to 142 months. Defense counsel reminded the court that when Jones agreed to the plea, they believed the minimum guidelines range was 29 to 114 months and that "it was our understanding that the Court would go to the bottom of his guidelines." Defense counsel requested that the trial court "follow the agreement that we made the day of trial when he pled."
The court sentenced Jones as a fourth-offense habitual offender to 50 months to 15 years' imprisonment for the unarmed robbery conviction. The court noted that this sentence fell "within the lower end of the range, um, based on the COBBS agreement that we had discussed at court." Defense counsel stated, "I've discussed with my client, he was understanding of the bottom of his guidelines being 29, that he would get the 29, and that was the purpose of taking the plea deal. Because of this, my client wishes to withdraw his plea." The court denied the motion because that it "stayed within the COBBS agreement that was reached" and told defense counsel, "[I]f your client wants to raise that issue with appellate counsel, he can certainly do so."
Jones filed an application for leave to appeal in this Court, which was denied for lack of merit on the grounds presented. People v Jones, unpublished order of the Court of Appeals, entered July 8, 2020 (Docket No. 353209). However, the Supreme Court remanded to this Court "for consideration as on leave granted." People v Jones, __ Mich, __; __ 959 N.W.2d 529 (2021).
II. ANALYSIS
Jones argues that his minimum sentence did not fall within his plea agreement. As a result, Jones argues his plea was not understandingly and voluntarily entered and he was entitled to withdraw it.
In a Cobbs plea agreement, "[a]t the request of a party, and not on the judge's own initiative, a judge may state on the record the length of sentence that, on the basis of the information then available to the judge, appears to be appropriate for the charged offense." People v Cobbs, 443 Mich. 276, 283; 505 N.W.2d 208 (1993) (emphasis omitted). "The judge's preliminary evaluation of the case does not bind the judge's sentencing discretion, since additional facts may emerge during later proceedings, in the presentence report, through the allocution afforded to the prosecutor and the victim, or from other sources." Id. "However, a defendant who pleads guilty or nolo contendere in reliance upon a judge's preliminary evaluation with regard to an appropriate sentence has an absolute right to withdraw the plea if the judge later determines that the sentence must exceed the preliminary evaluation." Id.
The officially calculated minimum sentencing guidelines range did "exceed the preliminary evaluation" as contemplated in Cobbs. Had the parties agreed to a specific minimum sentence, the court's sentencing decision would have triggered Jones's right to withdraw his plea. But contrary to Jones's claims, the minimum sentence preliminarily agreed to by the court and the parties was not 29 months. Rather, the parties and the court discussed a sentence at "the bottom of the guidelines" and at the "low end of the guidelines." A 29-month sentence would have been below Jones's properly scored guidelines, and therefore a downward departure. Furthermore, although the colloquy with the trial court could have been clearer, we interpret it as reflecting that the parties understood that the court "would stay in the lower end of that range," and did not commit itself to a 29-month sentence. The court and the parties agreed to an approximate sentence "in" the lower end of the guidelines range and not "at" the lowest point (despite the court's expressed preference for sentences at the top of the range), and that is what Jones got. Jones's 50- month sentence is much closer to the calculated 29 or 36-month low end of his range than to the 114 or 142-month high end.
Jones further contends that the trial court erred in determining that his plea was made voluntarily and knowingly, and then denying his motion to withdraw. We review for an abuse of discretion a trial court's denial of a defendant's motion to withdraw a plea. People v Bailey, 330 Mich.App. 41, 49; 944 N.W.2d 370 (2019).
"A criminal defendant's ability to withdraw a guilty plea after sentencing is limited to cases in which there was a defect in the plea-taking process." People v Coleman, 327 Mich.App. 430, 443; 937 N.W.2d 372 (2019). MCR 6.302(A) provides, in relevant part, "The court may not accept a plea of guilty . . . unless it is convinced that the plea is understanding, voluntary, and accurate. Before accepting a plea of guilty . . . the court must place the defendant . . . under oath and personally carry out subrules (B)-(E)." MCR 6.302(B)-(D) detail the information a court must provide to a defendant, the rights a defendant must expressly waive before a guilty plea may be entered, and the creation of a factual basis for a plea. MCR 6.302(E) provides:
On completing the colloquy with the defendant, the court must ask the prosecutor and the defendant's lawyer whether either is aware of any promises, threats, or inducements other than those already disclosed on the record, and whether the court has complied with subrules (B)-(D). If it appears to the court that it has failed to comply with subrules (B)-(D), the court may not accept the defendant's plea until the deficiency is corrected.
Jones does not argue that the trial court failed to comply with MCR 6.302(B) through (E). Rather, Jones argues, "If a reasonable interpretation of the Cobbs evaluation was that the judge agreed to a minimum sentence within the 'lower end', which perhaps means lower half, of the guidelines range, [Jones's] guilty plea was not a voluntary and understanding plea." As already determined, the Cobbs agreement made on the record was for an approximate sentence at the low end of the guidelines range, not the absolute minimum sentence available. Jones got what he bargained for.
Moreover, the record reflects that the trial court complied with MCR 6.302(B) through (E). Therefore, Jones cannot establish that his plea was not understandingly, voluntarily, and accurately made. See MCR 6.302(A). Absent such defects, Jones is not entitled to withdraw his plea.
We affirm.