PEOPLE OF MI V DARRYL M MARTIN
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
January 13, 1998
Plaintiff-Appellee,
v
No. 189839
Recorder’s Court
LC No. 92-005562
DARRYL M. MARTIN,
Defendant-Appellant.
Before: MacKenzie, P.J., and Hood and Hoekstra, JJ.
MEMORANDUM.
Defendant was convicted following a bench trial of felonious assault, MCL 750.82; MSA
28.277, and was sentenced to three years’ probation, despite his status as a fourth offender, MCL
769.12; MSA 28.1084. Defendant subsequently pleaded guilty to violating the terms of his probation
and received a sentence of two to four years’ imprisonment. Defendant appeals by leave granted. We
affirm. This case is being decided without oral argument pursuant to MCR 7.214(E).
Defendant’s failure to move to withdraw his plea in the trial court waives appellate review of his
claims that his plea was not knowingly and voluntarily entered and that the trial court failed to comply
with the requirements of MCR 6.445(F) before accepting defendant’s plea. MCR 6.311(C); People v
Baugh, 127 Mich App 245, 247; 338 NW2d 199 (1983).
Defendant’s ineffective assistance of counsel claim lacks record support. Upon revocation of
defendant’s probation, defendant was subject to the same penalty as he might have received if his
probation order had never entered. MCL 771.4; MSA 28.1134; People v Burks, 220 Mich App
253, 256; 559 NW2d 357 (1996). Accordingly, when defense counsel informed defendant that
defendant could be sentenced as a fourth offender, counsel imparted accurate information and,
therefore, counsel’s advice was within the range of competence demanded of attorneys in criminal
cases. People v Haynes (After Remand), 221 Mich App 551, 558; 562 NW2d 241 (1997).
Counsel’s representation cannot be deemed deficient because he failed to anticipate the trial court’s
error. Moreover, once the court expressed its erroneous belief that it could not sentence defendant as
an habitual offender and, therefore, its intention to impose a maximum sentence significantly below that
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which defendant could have lawfully received, had defense counsel advised defendant to withdraw his
plea in light of an error favorable to defendant, as defendant now argues counsel should have done, such
advice likely would have left defendant in a worse position because it would have allowed the
prosecution time to produce legal authority to demonstrate to the court that it could sentence defendant
as an habitual offender, thereby e
xposing defendant to the potential for the imposition of a greater
maximum sentence than he received.
Affirmed.
/s/ Barbara B. MacKenzie
/s/ Harold Hood
/s/ Joel P. Hoekstra
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