PEOPLE OF MI V DAVID LEE HICKS
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
November 25, 2008
Plaintiff-Appellee,
v
No. 279986
Calhoun Circuit Court
LC No. 2006-002944-FC
DAVID LEE HICKS,
Defendant-Appellant.
Before: Murphy, P.J., and Sawyer and Smolenski, JJ.
PER CURIAM.
Defendant appeals by leave granted after pleading no contest to charges of first-degree
home invasion, MCL 750.110a(2), safe breaking, MCL 750.531, and two counts of possession of
a firearm during the commission of a felony (felony-firearm), MCL 750.227b. Defendant was
sentenced as an habitual fourth offender, MCL 769.12, to serve concurrent terms of 2 years each
for the felony-firearm charges. These sentences were to precede concurrent prison terms of 15 to
25 years for first-degree home invasion, and 8 to 25 years for safe breaking. We affirm. This
appeal has been decided without oral argument pursuant to MCR 7.214(E).
Defendant had entered into a Cobbs1 agreement, which called for him to be sentenced to
consecutive prison terms of “10, 8, and 2” years, for a total of 20 years’ imprisonment. Given
Michigan’s indeterminate sentencing scheme, we presume that the terms spoken of are proposed
minimums. Defendant argues that the trial court should order resentencing and instruct the trial
court to comply with the Cobbs agreement. However, this argument fails for two reasons. First,
as stated in People v Cobbs, 443 Mich 276, 283; 505 NW2d 208 (1993), “The judge’s
preliminary evaluation of the case does not bind the judge’s sentencing discretion, since
additional facts may emerge during later proceedings, in the presentence report, through the
allocution afforded to the prosecutor and the victim, or from other sources.”
Second, according to Cobbs, a defendant who pleads guilty or nolo contendere in reliance
on a plea agreement has “an absolute right to withdraw the plea if the judge later determines that
the sentence must exceed the preliminary evaluation.” Id. at 283. Here, the court concluded that
1
People v Cobbs, 443 Mich 276; 505 NW2d 208 (1993).
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the sentence imposed is “consistent with the plea agreement because it gets [defendant]
essentially to the same time.” Defendant argues that the trial court actually exceeded the Cobbs
agreement because the minimum sentence for first-degree home invasion increased from 10 to
15 years. Under the Cobbs agreement, the recommended sentences—10 years for first-degree
home invasion, 8 years for the safe breaking, and 2 years each for each count of felony-firearm—
were all to be served consecutively, resulting in a minimum total of 20 years. However, while
the concurrent felony-firearm sentences actually imposed were consecutive to the sentence for
the other two substantive crimes, the 15-year minimum for first-degree home invasion and the 8year minimum for safe breaking are to run concurrently, resulting in a minimum total of 17
years. Thus, the sentence imposed not only did not exceed the recommended sentence, it was
actually less than that agreed to pursuant to Cobbs.
Defendant also argues that pursuant to Santobello v New York, 404 US 257; 92 S Ct 495;
30 L Ed 2d 427 (1997), the Cobbs agreement “constitutes a ‘promise of leniency’ which must be
fulfilled and if breached, violates due process of law.” However, the concept of due process and
its applicability to promises made in plea negotiations was raised only by Justice Douglas in his
Santobello concurrence. Id. at 267 (Douglas, J., concurring). Moreover, the promise broken in
Santobello was not an agreed upon sentence, but the prosecutor’s agreement not to make a
sentencing recommendation. Id. at 258-259. In the case at hand, the prosecutor did not similarly
violate such a promise not to act. Finally, as noted above, the sentence imposed was in
accordance with the length of the recommended sentence, even though the manner in which each
crime was dealt with was altered.
Accordingly, the trial court did not abuse its discretion in sentencing defendant.
Affirmed.
/s/ William B. Murphy
/s/ David H. Sawyer
/s/ Michael R. Smolenski
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