Order Michigan Supreme Court
Lansing, Michigan
October 3, 2008 Clifford W. Taylor,
Chief Justice
136380 Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
PEOPLE OF THE STATE OF MICHIGAN, Robert P. Young, Jr.
Plaintiff-Appellant, Stephen J. Markman,
Justices
v SC: 136380
COA: 283801
Calhoun CC: 06-003642-FH;
06-003993-FH
RUSSELL LEE WILLIS,
Defendant-Appellee.
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On order of the Court, the application for leave to appeal the May 1, 2008 order of
the Court of Appeals is considered, and it is DENIED, because we are not persuaded that
the question presented should be reviewed by this Court.
CORRIGAN, J., (dissenting).
I would remand this case to the Court of Appeals for consideration as on leave
granted for a more thorough analysis. The panel disposed of the case in an order that
affords no guidance to trial courts concerning the panel’s reasoning. The order,
providing no reasoning whatsoever, merely remands the case to the trial court “to afford
defendant an opportunity to withdraw his plea or for the trial court to impose a two-year
minimum sentence in accordance with People v Cobbs, 443 Mich 276; 505 NW2d 208
(1993).” Unpublished amended order of the Court of Appeals, entered May 1, 2008
(Docket No. 283801).
The defendant pleaded no contest to the charges against him and received a
sentence evaluation from the trial judge as provided in Cobbs. The defendant failed to
appear for the subsequent sentencing hearing, however, and was later arrested pursuant to
a bench warrant. Upon finally sentencing him, the court declined to give him the benefit
of the Cobbs evaluation and imposed a higher minimum sentence within the minimum
guidelines range prescribed by statute. The court denied the defendant’s request to
withdraw his plea, concluding that withdrawal was not warranted in light of the
defendant’s misconduct. In rendering its decision, the trial court specifically relied on
2
People v Garvin, 159 Mich App 38 (1987). The Court of Appeals reversed, presumably
citing Cobbs for the general proposition that a defendant who pleads guilty or no contest
in reliance on a sentence evaluation has an “absolute right” to withdraw the plea if the
judge later concludes that the sentence should exceed the preliminary evaluation. See
Cobbs, supra at 283.
But the trial court here reasonably posited that a defendant forfeits his right to
withdraw if he absconds from sentencing. The panel did not discuss the precedent cited
by the trial judge and the prosecutor, in which appellate courts declined to permit plea
withdrawal under similar factual circumstances. See People v Kean, 204 Mich App 533,
536 (1994) (By walking away from a treatment program specified in the plea deal and
then absconding, the “defendant had violated the plea agreement and,
consequently, . . . he was not entitled to the benefit of the bargain.”); Garvin, supra at 43
(the defendant “implicitly waived” the right to withdraw his plea by escaping from
custody and failing to appear for sentencing); People v Acosta, 143 Mich App 95, 99
(1985) (A defendant may not benefit from a plea bargain “irrespective of [his] bad faith
in failing to comply with the bargain by failing to appear.”). Although these cases did not
involve Cobbs pleas, the prosecutor reasonably argues that their rationale extends to
cases involving Cobbs pleas.
Further, allowing withdrawal under these circumstances permits a defendant to
manipulate the proceedings and benefit from his misconduct. Indeed, it may encourage
misconduct. A defendant who becomes dissatisfied with a Cobbs evaluation may
abscond in order to induce the judge to impose a higher sentence and then take advantage
of the right to withdraw. Moreover, under the Court of Appeals ruling in this case, a
defendant may apparently abscond from custody for as long as he wishes but then still
benefit from the plea deal. This Court explicitly prohibits a defendant from “assert[ing]
‘rights’ that came into existence because of his own misconduct.” People v Washington,
461 Mich 294, 299-300 (1999) (A defendant could not claim violation of his Double
Jeopardy rights because “[i]f he had not breached his agreement to return to court for
sentencing, there would have been no possibility of a violation . . . ”).
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
October 3, 2008 _________________________________________
p0930 Clerk