PEOPLE OF MI V CHRIS A CANN

Annotate this Case
Download PDF
STATE OF MICHIGAN COURT OF APPEALS PEOPLE OF THE STATE OF MICHIGAN, UNPUBLISHED July 17, 1998 Plaintiff-Appellee, v No. 199471 Oakland Circuit Court LC No. 94-133547 FH CHRIS A. CANN, Defendant-Appellant. Before: Murphy, P.J., and Young, Jr. and Michael R. Smith*, JJ. MEMORANDUM. Defendant appeals by leave granted from his plea-based conviction for receiving and concealing stolen property over $100, MCL 750.535; MSA 28.803, and his enhanced sentence of 3-1/2 to 20 years’ imprisonment, which reflects his status as a fourth felony offender, MCL 769.12; MSA 28.1084. We remand. Defendant pleaded guilty in reliance on the trial court’s representation that he would receive a sentence within the sentencing guidelines range of twenty-four to forty months or be allowed to withdraw his plea. People v Cobbs, 443 Mich 276; 505 NW2d 208 (1993). The trial court imposed a sentence in excess of the guidelines range and, thereby, violated the terms of the Cobbs agreement. People v Chappell, 223 Mich App 337, 342-343; 566 NW2d 42 (1997). Because the trial court was under the mistaken belief that the sentence imposed complied with the Cobbs agreement, we remand to allow the trial court to first decide if it intends to abide by the terms of the Cobbs agreement. Id., 342. If the court believes that the Cobbs evaluation should be followed, then defendant should be resentenced to a minimum sentence within the guidelines range. If, on the other hand, the court decides it cannot abide by the terms of the Cobbs agreement, then defendant must be allowed to withdraw his plea. Id., 343. Additionally, should the court decide to resentence defendant, then the court may not impose a consecutive sentence, People v Hardy, 212 Mich App 318, 323; 537 NW2d 267 (1995); People v Hunter, 202 Mich App 23, 26; 507 NW2d 768 (1993), but may impose restitution consistent with * Circuit judge, sitting on the Court of Appeals by assignment. -1­ MCL 780.767(1); MSA 28.1287(767)(1) and People v Grant, 455 Mich 221; 565 NW2d 389 (1997). Remanded. We do not retain jurisdiction. /s/ William B. Murphy /s/ Robert P. Young, Jr. /s/ Michael R. Smith -2­