People v. Brown

822 N.W.2d 208, 492 Mich. 684, 2012 WL 3537818, 2012 Mich. LEXIS 1252

• Court: Michigan Supreme Court
• Decided: August 16, 2012
• Docket: Docket 143733
• Status: Published

Opinions

MARILYN Kelly, J.

This criminal law case involves a defendant who was not informed of the maximum sentence that could be imposed on him before he pleaded guilty. MCR 6.302(B)(2) requires that the court notify a defendant of the maximum possible prison sentence. Defendant pleaded guilty of second-degree home invasion as a second-offense habitual offender, but the trial court never advised him of his maximum possible sentence as an habitual offender. We ordered oral argument on defendant’s application for leave to appeal to determine if the court rule requires such notice.¹ We also asked the parties to address what relief, if any, is available to a defendant under the circumstances of this case.²

We hold that MCR 6.302(B)(2) requires the trial court to apprise a defendant of his or her maximum possible prison sentence as an habitual offender before accepting a guilty plea. Because defendant in this case was not so apprised, his guilty plea was defective. We also hold that MCR 6.310(C) provides the sole remedy available to a defendant in these circumstances. Hence, pursuant to MCR 6.310(C), defendant may allow his plea and sentence to stand or withdraw his plea, in which case the court shall vacate his conviction and sentence. In the latter event, the matter may proceed to trial. Accordingly, we remand this case to the trial court for further proceedings.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Defendant conspired with his girlfriend to rob her employer’s home. He stole $10,300 worth of coins, currency, and guns from the unlocked home and shared the proceeds with her. He was apprehended and charged with second-degree home invasion,³ larceny of a firearm,⁴ being a felon in possession of a firearm,⁵ and larceny in a building⁶ as a fourth-offense habitual offender.⁷

Defendant pleaded guilty as a second-offense habitual offender⁸ to second-degree home invasion in exchange for dismissal of the other charges. At his plea hearing, the trial judge explained the maximum sentence, advising him that second-degree home invasion “is a felony; it is punishable by up to 15 years in the state prison. Do you understand?” Defendant confirmed that he understood. The judge sentenced him to a prison term of 6 years and 3 months to 22 years and 6 months and ordered him to pay restitution.⁹ He did not object to the maximum sentence.

Defendant later moved to withdraw his plea or for resentencing. He argued that he should be resentenced without the habitual-offender enhancement because the trial judge had failed to advise him of the enhanced maximum sentence before taking the guilty plea. The judge denied the motion, relying on People v Boatman¹⁰ and declining to decide whether various orders of this Court¹¹ had impliedly overruled Boatman.

The Court of Appeals denied defendant’s application for leave to appeal in a split decision; Judge GLEICHER would have granted the application. Defendant applied for leave to appeal in this Court, and we ordered and heard oral argument on whether to grant the application or take other action.¹²

STANDARD OF REVIEW AND LEGAL BACKGROUND

This Court reviews for an abuse of discretion a trial court’s ruling on a motion to withdraw a plea.¹³ A defendant pleading guilty must enter an understanding, voluntary, and accurate plea.¹⁴ MCR 6.302(B)(2) states that for a plea to be understanding, the defendant must be informed of “the maximum possible prison sentence for the offense and any mandatory minimum sentence required by law[.]”

The habitual-offender statutes, MCL 769.10 et seq., provide enhancement of a defendant’s sentence on the basis of prior felony convictions. They do not create a substantive offense independent of the principal charge. “Rather, it is a sentence-enhancement procedure with a deterrent and punitive purpose.”¹⁵ Under MCL 769.13(3), the prosecution is permitted to file notice of an habitual-offender enhancement after a defendant pleads guilty.¹⁶

This Court has never determined whether, in order to comply with MCR 6.302(B)(2), a trial court must inform a defendant of the maximum possible enhanced sentence before taking a guilty plea. The question was presented six years ago in People v Boatman.17 In that case, the defendant pleaded guilty of resisting and obstructing a police officer as a fourth-offense habitual offender. The plea agreement required him to be sentenced within the sentencing guidelines.

The trial court informed Mr. Boatman that his maximum sentence would be two years’ incarceration, the correct sentence for an unenhanced charge of resisting and obstructing a police officer. With enhancement, however, the maximum sentence was 15 years. Boatman was eventually sentenced to 3 to 15 years in prison. He unsuccessfully moved the trial court to set aside his plea, and the Court of Appeals denied him leave to appeal. This Court remanded the case to the Court of Appeals as on leave granted for consideration of whether the defendant’s plea was understanding.¹⁸

On remand, in a split, published decision, the Court of Appeals held in Boatman that MCR 6.302(B)(2) requires the trial court to inform a defendant of only the maximum sentence for the underlying offense. It does not require that he or she be informed before pleading guilty of the enhancement created by habitual-offender status. The Court concluded that Boatman

was informed, of the maximum sentence for the charged “offense,” because “[t]he habitual-offender statute does not create a substantive offense that is separate from and independent of the principal charge.” Nothing in the wording of the court rule can be construed to require a trial court to address every possible configuration or consequence of sentencing. In accordance with the dictates of MCR 6.302(B)(2), when pleading guilty, the court rule requirement that a defendant be advised of the consequences of his or her plea does not encompass advice extending beyond the maximum possible sentence and any mandatory minimum sentence necessitated by law.[¹⁹]

The Boatman Court recognized that MCR 6.302 “requires a defendant to be informed of the consequences of his or her plea and, necessarily, the resultant sentence.”²⁰ Nonetheless, it concluded that MCR 6.302 does not require notification of the enhanced sentence, even though this conclusion violated the intent of the rule. No appeal was taken from the decision.

Concurring in the result only in Boatman, Judge SERVITTO would have required trial courts to advise a defendant of the maximum sentence as enhanced by his or her habitual-offender status. She reasoned that this status directly affects the possible maximum sentence for the underlying offense, and she opined that “[w]here a defendant’s habitual-offender status leads to no separate sentence, such status could only be viewed as part and parcel of the charged crime.”²¹

This Court has since expressed disapproval with the holding of Boatman. In People v Kade, in a statement joined by Justices CAVANAGH, MARKMAN, and HATHAWAY. I wrote that Boatman should be overruled.²² Since Kade was decided, two decisions of this Court have suggested that Boatman is no longer good law without expressly overruling it.

In People v Ruffin, the defendant was incorrectly told that his maximum enhanced sentence was 30 years’ imprisonment.²³ In reality, as a third-offense habitual offender, the defendant was subject to a maximum of 40 years in prison. This Court vacated the sentence and remanded the case to the trial court to allow the defendant to withdraw his plea or be resentenced to no more than 30 years’ imprisonment. We noted, in support of our determination to allow the defendant to be resentenced to the unenhanced sentence, that the prosecution had conceded that it was the appropriate remedy.²⁴

Similarly, in People v Lofton,25 the defendant was an habitual offender and was not informed of the enhanced possible maximum sentence before he pleaded guilty. The trial court told him that a felony-firearm conviction would result in a 2-year prison sentence. However, at sentencing, the court imposed a 5-year enhanced sentence as required by statute.²⁶ The defendant did not object. We remanded the case to the trial court to allow him to withdraw his plea or be resentenced to a 2-year sentence of imprisonment on the felony-firearm conviction.²⁷

Plea withdrawals after sentencing are governed by MCR 6.310(C), which provides:

Motion to Withdraw Plea After Sentence. The defendant may file a motion to withdraw the plea within 6 months after sentence. Thereafter, the defendant may seek relief only in accordance with the procedure set forth in subchapter 6.500. If the trial court determines that there was an error in the plea proceeding that would entitle the defendant to have the plea set aside, the court must give the advice or make the inquiries necessary to rectify the error and then give the defendant the opportunity to elect to allow the plea and sentence to stand or to withdraw the plea. If the defendant elects to allow the plea and sentence to stand, the additional advice given and inquiries made become part of the plea proceeding for the purposes of further proceedings, including appeals.[²⁸]

A defendant seeking to withdraw his or her plea after sentencing must demonstrate a defect in the plea-taking process.²⁹

THE PROPER INTERPRETATION OF MCR 6.302(B)(2) AND ITS APPLICATION

In its decision in Boatman, the Court of Appeals accurately stated that “an important focus of MCR 6.302 is to ensure that any defendant who has entered into a sentencing agreement has made a knowing, understanding, and informed plea decision.”³⁰ It also noted that “[t]his requires a defendant to be informed of the consequences of his or her plea and, necessarily, the resultant sentence.”³¹ Nevertheless, the Court of Appeals refused to grant relief because the language of MCR 6.302(B)(2) does not specifically require that an habitual offender be advised regarding the effect habitual-offender status has on sentencing.³²

We disagree with Boatman and overrule that decision. MCR 6.302(B)(2) states that the trial court “must advise the defendant... and determine that each defendant understands... the maximum possible prison sentence for the offense and any mandatory minimum sentence required by law[.]” We hold that, before pleading guilty, a defendant must be notified of the maximum possible prison sentence with habitual-offender enhancement because the enhanced maximum becomes the “maximum possible prison sentence” for the principal offense.

By not telling a defendant the potential maximum sentence because of his or her habitual-offender status, “a trial court is not advising of the ‘true’ potential maximum sentence.”³³ Today’s holding accurately reflects the intent of MCR 6.302(B)(2), which is that a defendant be informed beforehand of the maximum sentence that would follow his or her plea of guilty.³⁴

In the case before us, there was a clear defect in the plea proceedings. Because defendant was not accurately informed of the consequences of his plea as a second-offense habitual offender, he was not able to make an understanding plea under MCR 6.302(B).³⁵ We must thus decide what remedies are available to him.

THE PROPER REMEDY FOR A VIOLATION OF MCR 6.302(B)

We determined in 1981 in People v Jones that a failure to advise a defendant of the maximum possible prison sentence before taking a guilty plea constitutes an error requiring reversal.³⁶ This Court required the trial court to set aside the defendant’s plea-based convictions.³⁷ We reaffirm that holding today while incorporating MCR 6.310(C) to permit the defendant to elect either to allow the plea and sentence to stand or to withdraw the plea. A brief review of the history underlying the holding in Jones is instructive.

In 1974, in People v Shekoski,38 we adopted a “strict adherence” requirement for procedures governing the acceptance of guilty pleas.³⁹ Our order in that case stated “that strict adherence to those requirements is mandatory and that neither substantial compliance nor the absence of prejudicial error will be deemed sufficient.”⁴⁰

The next year, in Guilty Plea Cases, we renounced Shekoski and adopted a “substantial compliance” test for errors in plea proceedings.⁴¹ However, we retained a rule that required reversal for failure to provide advice concerning the maximum possible sentence and any mandatory minimum term.⁴²

In Guilty Plea Cases, a defendant was informed that by pleading guilty of armed robbery, he was subject to a possible sentence of “up to life.” But he was not advised that he might be ineligible for probation.⁴³ We recognized that the precursor of MCR 6.302(B)(2)⁴⁴ “[did] not require the judge to inform the defendant of all sentence consequences — only the maximum sentence, any mandatory minimum,” and “the possible effect on [the defendant’s] status as a probationer or parolee.”⁴⁵ We concluded that a failure to impart the information required by MCR 6.302(B)(2) continues to require reversal.⁴⁶

In 2001, in the case of People v Saffold,⁴⁷ we elaborated on the substantial-compliance doctrine. Both the majority and the dissent agreed that automatic reversal is not required when a trial court fails to advise a defendant that, by pleading guilty, he or she waives the right to be presumed innocent. Both agreed also that “substantial compliance with MCR 6.302, with regard to the right to be presumed innocent, is all that is required,” although the majority and dissent did not agree about the application of the substantial-compliance doctrine in that case.⁴⁸ Saffold is not applicable here, however, because it involved only rights that a defendant gives up by not going to trial⁴⁹ and the effect of a guilty plea on those rights.

The distinctions we have drawn are supported by our court rules, which differentiate a defendant’s trial rights from the consequences of a guilty plea on a defendant’s sentence. For example, MCR 6.302(B)(5) allows a written waiver of the trial rights found in MCR 6.302(B)(3). It does not, however, allow a written waiver of the requirement under MCR 6.302(B)(2) that is involved in the current case. Because trial rights and sentencing consequences are distinct, Saffold does not apply to our analysis of MCR 6.302(B)(2). And it does not apply to how the statute relates to a defendant’s right to be informed of his or her maximum possible prison sentence.

We continue to recognize the distinction we drew in Guilty Plea Cases between information about a defendant’s trial rights and information about a defendant’s sentence. We note that MCR 6.310(C) now provides the proper remedy for a plea that is defective under MCR 6.302(B)(2), which is to allow the defendant the opportunity to withdraw his or her plea.

Additionally, we are not alone in concluding that the failure to inform a defendant of the maximum sentence that could be imposed before he or she pleads guilty renders a plea involuntary.⁵⁰ Caselaw supports this determination and holds that an involuntary plea violates the state and federal Due Process Clauses.⁵¹ For the reasons stated earlier, we hold that defendant entered a defective plea because it was not an understanding plea under MCR 6.302(B)(2). We remand this matter to the trial court so that defendant may be afforded the remedy provided in MCR 6.310(C), which provides in pertinent part:

If the trial court determines that there was an error in the plea proceeding that would entitle the defendant to have the plea set aside, the court must give the advice or make the inquiries necessary to rectify the error and then give the defendant the opportunity to elect to allow the plea and sentence to stand or to withdraw the plea.

Because defendant was not informed of his maximum possible enhanced prison sentence before he pleaded guilty, he is entitled to the remedy provided by MCR 6.310(C). Thus, we remand this case to the trial court. On remand, defendant must be given the option of allowing his plea and sentence to stand or of withdrawing his plea. If the plea is withdrawn, the trial court must vacate his conviction and sentence and the matter may proceed to trial.

We reject defendant’s argument that he is entitled to be resentenced in accordance with the unenhanced maximum sentence of which he was informed at the plea hearing. We hold that MCR 6.310(C) provides the proper remedy for violations of MCR 6.302(B)(2). It requires that a defendant be informed of the maximum enhanced sentence before being given the opportunity to elect (1) to allow his plea and sentence to stand or (2) to withdraw it. Resentencing a defendant to a term within the range the court articulated at an erroneous plea hearing might lead to unfair results. It might create a binding “pleaded to” sentence to which neither the prosecution nor the defendant agreed.

Moreover, resentencing would modify an otherwise valid sentence. As we have said throughout this opinion, the plea procedure was defective here because defendant was not notified of his maximum possible sentence under MCR 6.302(B)(2). On the other hand, the sentence fell within the guidelines for a second-offense habitual offender and is presumed accurate “absent an error in scoring the sentencing guidelines or inaccurate information relied upon in determining the defendant’s sentence.”⁵²

Thus, the remedy employed today differs from that used in Ruffin and Lofton. Ruffin is particularly distinguishable from the present action because there the prosecution conceded that the proper remedy was to resentence the defendant to the erroneous sentence discussed at the plea hearing.⁵³ Less than a month later we employed the same remedy in Lofton, in which there was no indication that the prosecution conceded to the remedy.⁵⁴ To the extent that the orders in Ruffin and Lofton are inconsistent with this opinion, they are overruled.

In Kade, we noted that an arguable conflict exists between MCR 6.302(B)(2) and MCL 769.13(3). The statute permits a prosecuting attorney to file a notice of intent to seek an enhanced sentence under the habitual-offender statute after a defendant has entered a plea.⁵⁵ This Court did not amend MCR 6.302(B)(2) to resolve the tension between the court rule and the statute. But the remedy provided by MCR 6.310(C) will apply when a defendant is not notified of the enhancement until after pleading guilty. MCR 6.302 requires a voluntary and understanding plea. Hence, the concerns about a defendant understanding the consequences of a guilty plea are present when the defendant is notified of possible sentence enhancement only after pleading guilty. Just as in the case at hand, a defendant’s right to make an understanding plea is of the utmost importance in that circumstance.

CONCLUSION

MCR 6.302(B) specifically gives defendants who plead guilty of a crime the right to know beforehand the maximum possible sentence that will result from their plea. We hold that when a defendant is subject to an enhanced sentence as an habitual offender, that enhanced sentence is part of the maximum prison sentence described in MCR 6.302(B)(2). Accordingly, we overrule the Court of Appeals’ decision in Boatman. To hold otherwise would allow a defendant to plead guilty without knowing the true consequences of his or her plea. It would also prevent the defendant from making an understanding plea.

We also hold that MCR 6.310(C) provides the remedy for this violation of MCR 6.302(B)(2). Because the defendant in this case was not given the required sentence-enhancement notice, we remand the case to the trial court. Pursuant to MCR 6.310(C), defendant may allow his plea and sentence to stand or withdraw his plea, in which case the trial court must vacate his conviction and sentence. In the latter event, the matter may proceed to trial. We do not retain jurisdiction.

Cavanagh, Markman, Hathaway, and Mary Beth KELLY, JJ., concurred with MARILYN KELLY, J.

1 People v Brown, 490 Mich 976 (2011).

2 Id.

3 MCL 750.110a(3).

4 MCL 750.357b.

5 MCL 750.224f.

6 MCL 750.360.

7 MCL 769.12.

8 MCL 769.10.

9 Defendant’s challenge to the order of restitution is not before this Court and will not be discussed.

10 People v Boatman, 273 Mich App 405; 703 NW2d 251 (2006).

11 See People v Ruffin, 488 Mich 891 (2010), and People v Lofton, 488 Mich 924 (2010).

12 Brown, 490 Mich 976.

13 People v Lang, 381 Mich 393, 398-399; 162 NW2d 143 (1968).

14 MCR 6.302(A).

15 People v Oswald (After Remand), 188 Mich App 1, 12; 469 NW2d 306 (1991); see People v Kade, 486 Mich 978, 981; 783 NW2d 102 (2010) (Marilyn Kelly, C.J., concurring), citing Oswald.

16 MCL 769.13(3) provides that

[t]he prosecuting attorney may file notice of intent to seek an enhanced sentence after the defendant has been convicted of the underlying offense or a lesser offense, upon his or her plea of guilty or nolo contendere if the defendant pleads guilty or nolo contendere at the arraignment on the information charging the underlying offense, or within the time allowed for filing of the notice under subsection (1).

MCL 769.13(1) contains additional time restrictions for seeking a sentence enhancement under the habitual-offender statutes and requires the prosecuting attorney to file “a written notice of his or her intent to do so within 21 days after the defendant’s arraignment on the information charging the underlying offense or, if arraignment is waived, within 21 days after the filing of the information charging the underlying offense.”

17 People v Boatman, 475 Mich 862 (2006).

¹⁸

19 Boatman, 273 Mich App at 407-408 (citation omitted).

20 Id. at 409.

21 Id. at 414 (Servitto, J., concurring in result only).

22 Kade, 486 Mich at 981-982 (Marilyn Kelly, C.J., concurring).

23 Ruffin, 488 Mich at 891.

²⁴

25 Lofton, 488 Mich at 924.

26 MCL 750.227b(1).

²⁷

28 Emphasis added.

29 People v Montrose (After Remand), 201 Mich App 378, 380; 506 NW2d 565 (1993).

30 Boatman, 273 Mich App at 409.

³¹

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33 Boatman, 273 Mich App at 414 (Servitto, J., concurring in result only).

34 The concurrence/dissent contends that

the court rule actually and explicitly requires only that the court inform a defendant of the maximum possible prison sentence for the offense to which the defendant pleads guilty and does not require the court to inform a defendant of the possible sentencing enhancement resulting from his status as an habitual offender.

Post at 702. However, as was explained in Kade, “an habitual offender supplement is not a separate offense,” and thus “it logically follows that it must be linked to, or considered one with, the underlying offense. As such, to comply with MCR 6.302(B)(2), a defendant must be made aware of the consequences of ‘the offense’ including any habitual offender enhancement.” Kade, 486 Mich at 981 (Marilyn Kelly, C.J., concurring).

35 We note that People v Cole, 491 Mich 325; 817 NW2d 497 (2012) supports our holding that the plea defendant entered was defective. There, the defendant was not informed before pleading guilty to second-degree criminal sexual conduct that he was required to be placed on lifetime electronic monitoring pursuant to MCL 750.520c(2)(b). We held that “the ‘understanding, voluntary, and accurate’ components of [MCR 6.302(A)] are premised on the requirements of constitutional due process, which might not he entirely satisfied by compliance with [MCR 6.302(B) through (D).” Id. at 332.

The voluntariness requirement mandates that a defendant entering a plea be “fully aware of the direct consequences” of the plea. Brady v United States, 397 US 742, 755; 90 S Ct 1463; 25 L Ed 2d 747 (1970). “The most obvious ‘direct consequence’ of a conviction is the penalty to be imposed,” thus requiring that a defendant be notified of the sentence he or she will be forced to serve because of the plea. Blankenship v State, 858 SW2d 897, 905 (Tenn, 1993). It is therefore apparent that habitual-offender enhancement is a direct consequence of pleading guilty because it affects the defendant’s sentence. Thus, a defendant must be fully aware of the consequences of that enhancement before pleading guilty.

Additionally, in Cole, 491 Mich at 334 we noted that the determination of whether a statute imposes punishment can begin and end with a finding that the legislative purpose was to impose punishment. See Smith v Doe, 538 US 84, 92; 123 S Ct 1140; 155 L Ed 2d 164 (2003). Our courts have consistently concluded that the habitual-offender statutes provide “a sentence-enhancement procedure with a deterrent and punitive purpose.” Oswald, 188 Mich App at 12. Following the Smith v Doe paradigm, we conclude that an habitual-offender sentence enhancement constitutes a “direct” consequence of a guilty or no-contest plea and thus requires notice before a plea is taken. Id. at 12; see Boatman, 475 Mich 862, 862-863 (2006) (Young, J., dissenting).

36 People v Jones, 410 Mich 407, 411; 301 NW2d 882 (1981). In People v Jackson, 417 Mich 243, 246; 334 NW2d 371 (1983), this Court limited the application of Jones. It held that automatic reversal is not required for a failure to give advice concerning the mandatory minimum and maximum sentences if the defendant is sentenced pursuant to a sentencing agreement.

37 Jones, 410 Mich at 412.

38 People v Shekoski, 393 Mich 134; 224 NW2d 656 (1974).

39 This court first adopted these procedures in 1973. 389 Mich lv-lvii. They are currently set forth in MCR 6.302.

40 Shekoski, 393 Mich at 134.

41 Guilty Plea Cases, 395 Mich 96, 113; 235 NW2d 132 (1975) (“Whether a particular departure from Rule 785.7 [now MCR 6.302] justifies or requires reversal or remand for additional proceedings will depend on the nature of the noncompliance.”).

42 Id. at 117-118. In addition, the Court retained a rule of automatic reversal for the failure to provide advice concerning three matters: (1) the presumption of innocence, (2) the consequences of a plea on probation or parole, and (3) the rights set forth in People v Jaworski, 387 Mich 21; 194 NW2d 868 (1972): the right to a jury trial, the right to confront one’s accusers, and the right to remain silent. Guilty Plea Cases, 395 Mich at 118-121.

43 Id. at 118.

44 When a criminal defendant stated his intent to plead guilty or to plead nolo contendere, GCR 1963, 785.7(1)(b) stated that the trial court

shall not accept a plea of guilty or nolo contendere without first personally addressing the defendant and informing him of and determining that he understands the following.

Ob) the maximum sentence and the mandatory minimum sentence, if any, for the offense to which the plea is offered.

45 Guilty Plea Cases, 395 Mich at 118.

46 Id. We note that Guilty Plea Cases predates our adoption of MCR 6.310(C).

47 People v Saffold, 465 Mich 268, 271, 278-280, 287; 631 NW2d 320 (2001).

48 Id. at 287 (Markman, J., dissenting).

49 See MCR 6.302(B)(3). These rights include the right (a) to be tried by a jury, (b) to be presumed innocent until proved guilty, (c) to have the prosecutor prove beyond a reasonable doubt that the defendant is guilty, (d) to have the witnesses against the defendant appear at the trial, (e) to question the witnesses against the defendant, (f) to have the court order any witnesses the defendant has for the defense to appear at the trial, (g) to remain silent during the trial, (h) to not have that silence used against the defendant, and (i) to testify at the trial if the defendant wants to testify. Id.

50 See, e.g., King v Dutton, 17 F3d 151, 154 (CA 6, 1994).

51 See McCarthy v United States, 394 US 459, 466; 89 S Ct 1166; 22 L Ed 2d 418 (1969); People v Schluter, 204 Mich App 60, 66; 514 NW2d 489 (1994); see also US Const, Ams V and XTV; Const 1963, art 1, § 17.

52 MCL 769.34(10). See People v Francisco, 474 Mich 82, 88, 92; 711 NW2d 44 (2006) (remanding for resentencing under MCL 769.34(10) because of an incorrect scoring of the statutory sentencing guidelines). Defendant erroneously relies on People v Cobbs, 443 Mich 276; 505 NW2d 208 (1993), to argue that he should he resentenced at the unenhanced maximum sentence for second-degree home invasion. Where an error in the judgment of sentence rendered the sentence inconsistent with the sentence the court intended, we have ordered that the judgment of sentence be amended. People v Littleton, 490 Mich 910; 805 NW2d 203 (2011). Similarly, when a Cobbs evaluation was within the sentencing guidelines range hut the range was inaccurate because of a scoring error, we have ordered resentencing. In those cases, we have given the sentencing court the discretion either to adhere to the Cobbs evaluation or allow the defendant to withdraw the plea. See People v Spencer, 477 Mich 1086; 729 NW2d 225 (2007). These Cobbs cases are not applicable to the case at hand because there are no sentencing errors or errors in the judgment of sentence.

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