PEOPLE OF MI V LARRY ANDREW PHILON
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
December 3, 1999
Plaintiff-Appellee,
v
No. 217887
Jackson Circuit Court
LC No. 97-082593 FH
LARRY ANDREW PHILON,
Defendant-Appellant.
Before: Jansen, P.J., and Hoekstra and J. R. Cooper*, JJ.
PER CURIAM.
Defendant appeals by delayed leave granted his plea-based conviction of delivery of less than
fifty grams of cocaine, MCL 333.7401(2)(a)(iv); MSA 14.15(7401)(2)(a)(iv). We affirm. This appeal
is being decided without oral argument pursuant to MCR 7.214(E).
Defendant pleaded guilty in return for the dismissal of a charge of habitual offender, third
offense, MCL 769.12; MSA 28.1084, and an agreement by the prosecution to refrain from charging
him with other deliveries. The parties agreed that defendant would not be required to make any
representations as to his guilt or innocence regarding other alleged deliveries.
Prior to sentencing defendant moved to withdraw his plea, claiming innocence and duress. The
trial court denied the motion. Defendant then challenged the scoring of Offense Variable (OV) 25,
contemporaneous criminal acts, at fifteen points based on the three alleged but uncharged sales.
Defendant denied that these alleged sales had occurred. The trial court held an evidentiary hearing, and
found that the prosecution established by a preponderance of the evidence that defendant made the
alleged sales. The trial court declined to change the guidelines, and sentenced defendant to ten- to
twenty-years’ imprisonment, with credit for fourteen days. The minimum term was within the guidelines
as scored by the court.
Defendant filed a postjudgment motion to withdraw his plea, or for specific performance of the
plea bargain, or for resentencing. He argued that the prosecution violated the plea agreement when it
* Circuit judge, sitting on the Court of Appeals by assignment.
-1
requested a hearing on the use of the other alleged sales as a basis for the scoring of OV 25, thereby
forcing him to deny the sales. Defendant also challenged the accuracy
-2
of the information used to score Prior Record Variable (PRV) 2. The trial court denied the motion,
concluding that the terms of the plea agreement did not preclude the use of the other uncharged
deliveries in the calculation of the guidelines. In addition, the court noted that defendant failed to object
to the scoring of PRV 2 at the time of sentencing.
Defendant argues on appeal that the trial court abused its discretion by denying his motions to
withdraw his guilty plea. We disagree. A motion to withdraw a plea before sentencing may be granted
“in the interest of justice” unless to do so would result in substantial prejudice to the prosecution. MCR
6.310(B). Defendant’s motion made before sentencing was based on a claim that he was innocent and
that he entered a plea to one charge to avoid other charges. Defendant did not carry his burden of
establishing that under the circumstances it was in the interest of justice to withdraw the plea. People v
Jackson, 203 Mich App 607, 611-612; 513 NW2d 206 (1994).
Absent a clear abuse of discretion, a trial court’s decision on a motion to withdraw a plea after
sentencing will not be disturbed on appeal. People v Effinger, 212 Mich App 67, 69; 536 NW2d
809 (1995). The trial court did not abuse its discretion by denying defendant’s postjudgment motion to
withdraw his plea, or for specific performance of the plea bargain, or for resentencing. The plea
agreement did not include a provision that the other alleged sales could not be considered in the
calculation of the guidelines. No such condition was stated on the record. A contemporaneous criminal
act considered in the scoring of OV 25 need not have resulted in a separate conviction. People v
Polus, 197 Mich App 197, 200; 495 NW2d 402 (1992).
Defendant argues that he was sentenced on the basis of inaccurate information for the reason
that PRV 2 was scored incorrectly. We disagree. Defendant’s contention that the issue was raised as
soon as the inaccuracy was discovered, MCR 6.429(C), is supported only by his own self-serving
affidavit. Moreover, application of the guidelines presents a cognizable claim only if (1) a factual
predicate is wholly unsupported; (2) a factual predicate is materially false; and (3) the sentence is
disproportionate. People v Mitchell, 454 Mich 145, 177; 560 NW2d 600 (1997). If the sentence is
proportionate, an error in the calculation of the guidelines provides no basis for relief. People v Raby,
456 Mich 487, 496; 572 NW2d 644 (1998). In this case, even assuming arguendo that the guidelines
were scored incorrectly, defendant is not entitled to resentencing. He has not established that the
sentence he received was disproportionate to his circumstances or to those of the offense. People v
Milbourn, 435 Mich 630, 636; 461 NW2d 1 (1990). The instant conviction represented defendant’s
fourth felony conviction. He had a history of assaultive crimes, including a conviction of second-degree
murder. Resentencing is not warranted. Raby, supra.
Affirmed.
/s/ Kathleen Jansen
/s/ Joel P. Hoekstra
/s/ Jessica R. Cooper
-3
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.