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April 04, 2017

MSC grants MOAA to consider scope of defendant’s right to withdraw plea where court imposes sentence arguably inconsistent with Cobbs evaluation

In People v Velez, No. 152778, the Michigan Supreme Court granted mini-oral argument on whether the trial court imposed a sentence within the bounds of a preliminary sentence evaluation given under People v Cobbs, 443 Mich 276 (1993).
 
Under Cobbs, trial judges may participate in the plea negotiation process by indicating the length of sentence that the judge, based on the preliminary evaluation, believes is appropriate for the charged offenses.  The judge’s preliminary evaluation does not bind the judge’s sentencing discretion since additional facts may emerge later in the case.  A defendant who pleads nolo contendere in reliance upon a judge’s preliminary evaluation has a right to affirm or withdraw the plea if the judge later decides to impose a sentence outside the Cobbs evaluation.
 
The defendant in Velez was charged with several crimes arising out of the armed breaking and entering of a home. The prosecution offered defendant a plea agreement, which allowed defendant to plead guilty to first-degree home invasion, unlawful imprisonment, and armed robbery in exchange for dismissal of the remaining charges.  At a Cobbs hearing, the trial court informed defendant that, if he accepted the plea, the trial court “would be looking at the low end” of the recommended sentencing guidelines range.  Defendant entered a plea of nolo contendere to first-degree home invasion, unlawful imprisonment, and armed robbery.  The guideline minimum range for armed robbery was 22½ to 37½ years, and the trial court sentenced defendant to a minimum of 25 years.
 
After sentencing, defendant appealed, arguing that the trial court erred by failing to follow the Cobbs evaluation and by failing to offer him an opportunity to withdraw his plea.  Specifically, defendant argued that his sentence of a minimum of 25 years exceeded the Cobbs evaluation that he would be sentenced to the “low end” of the 22½ to 37½ year range.  Defendant argued that the two-and-a-half year departure from the bottom of the minimum guideline required the trial court to give him an opportunity to withdraw his plea. The Court of Appeals disagreed and affirmed the trial court sentence, reasoning that the minimum sentence of 25 years was within the “low end” of the guidelines sentencing range. Thus, because the trial court sentenced defendant consistent with the Cobbs evaluation, the trial court was not required to offer defendant an opportunity to withdraw his plea.
 
In granting mini-oral argument, the Court asked the parties to address two questions: (1) as a threshold matter, whether the defendant’s claim regarding the preliminary sentence evaluation under Cobbs is properly before the Court, given defendant’s failure to file a motion to withdraw his plea in the trial court, and notwithstanding the prosecutor’s failure to raise and preserve this issue; and (2) if so, whether the trial court failed to impose a sentence in accordance with the preliminary evaluation.

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