PEOPLE OF MI V DENNIS ALEXANDER
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
March 12, 2009
Plaintiff-Appellee,
v
No. 280990
Wayne Circuit Court
LC No. 07-006069-01
DENNIS ALEXANDER,
Defendant-Appellant.
Before: Cavanagh, P.J., and Jansen and Meter, JJ.
PER CURIAM.
Defendant appeals by leave granted from his plea-based convictions of felon in
possession of a firearm, MCL 750.224f, and possession of a firearm during the commission of a
felony, MCL 750.227b. He was sentenced to prison terms of two years for felony-firearm and
18 months to five years for felon in possession of a firearm, to be served consecutively.1 We
affirm but remand for reconsideration of the order requiring defendant to pay attorney fees. This
appeal has been decided without oral argument pursuant to MCR 7.214(E).
Defendant was charged with carrying a concealed weapon, felony-firearm, and felon in
possession of a firearm; a fourth-offense habitual offender enhancement was also filed. The
prosecutor offered to dismiss the concealed weapon charge and habitual offender enhancement if
defendant pleaded guilty to felony-firearm and felon in possession of a firearm. Defendant
received a Cobbs2 preliminary evaluation of two years in prison for felony-firearm and no
additional prison time for felon in possession. Defendant agreed with this evaluation, and
defense counsel asked for reinstatement of the bond, stating that he had informed defendant that
his sentence could be harsher if defendant did not appear for sentencing. The trial court
reinstated the bond, but admonished defendant that, if he did not appear, the court would
consider what he had done in the meantime in sentencing him. Defendant did not appear for the
1
The trial court set forth a sentence of “18 months to two years” on the record, but this was
clearly a misstatement because the felon-in-possession statute indicates that the offense is a fiveyear felony. MCL 750.224f(3). The judgment of sentence indicates a sentence of 18 months to
five years.
2
People v Cobbs, 443 Mich 276; 505 NW2d 208 (1993).
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original sentencing date, and other people presented a false death certificate in defendant’s name
and other false documents to the trial court. When defendant was apprehended and sentenced,
the trial court sentenced defendant to 18 months to five years’ imprisonment for the felon in
possession plea-based conviction; there was no discussion of defendant withdrawing his plea.
Defendant argues that the trial court plainly erred by failing to inform him of his right to
withdraw the plea when the trial court did not follow the Cobbs agreement. In People v Cobbs,
443 Mich 276; 505 NW2d 208 (1993), the Michigan Supreme Court created the framework by
which a trial court judge could, upon request, give a defendant a preliminary evaluation of the
sentence in his case. The Court also established a framework by which a judge could change this
evaluation:
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. However, a defendant who pleads guilty or nolo
contendere in reliance upon a judge’s preliminary evaluation with regard to an
appropriate sentence has an absolute right to withdraw the plea if the judge later
determines that the sentence must exceed the preliminary evaluation. [Id. at 283.]
In this case, the trial court believed that defendant was involved in an attempted fraud upon the
court, where false documents were presented to the court indicating that defendant had died. The
court thus sentenced defendant to a prison term for the felon-in-possession conviction.
We reject defendant’s argument that he was entitled to withdraw his plea because the
judge violated the sentencing agreement. Indeed, a reading of the transcript makes clear that
defendant agreed that additional prison time would potentially be imposed if he did not appear
for sentencing. At the plea hearing, defense counsel stated:
As I have explained to him at length, I think for the court, even though he
has to go to do the time, if he were to not reappear, if he were not to do what this
court tells him as far as continuing his original bond, he would be in a position
where this court would not have to abide by it’s [sic] Cobbs agreement.
It could give him a one to five under the guidelines of five to 23, plus two
years, which has serious sentencing ramifications within the department of
corrections, when time would be stacked or consecutive.
The prosecutor stated:
Your Honor, I would ask the court to keep bond where it’s at. He does
have a lot of risk if he does not come back. But as the court is well aware, people
have not come back when they have plead[ed] guilty to felony firearm.
So even though he does have a large ramification if he does not come
back, he still has ramifications by not wanting to spend two years in prison. So I
would ask the court to keep the bond where it’s at.
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Defense counsel replied:
Just to follow up, I respect what [the prosecutor] is saying. But many
times in those cases what we are really looking at with a risk seems to be the
highest where the plea has only been to felony firearm. So that sentence is going
to be the same, regardless.
However, we have a different situation here, because this court has a great
deal of flexibility on [the] felon in possession charge. It could sentence
consecutive to prison time, were he not to abide.
The court then questioned defendant about his residence, and the following colloquy
ensued:
THE COURT. I’m going to set a twenty thousand personal bond until sentencing.
However, if you do not appear, you have already taken a plea.
DEFENDANT. Yes.
THE COURT. And I have said, although I said no additional prison time, you
could have a penalty that it’s going to be considered what you have done in
the mean time [sic], and the authorities will find you. I’ll give you the chance.
DEFENDANT. Yes. Thank you.
Under the circumstances, it is clear that defendant agreed to the plea of guilty with the
understanding that if he did not appear for sentencing, the court might impose an additional
penalty. Accordingly, we conclude that he is not entitled to withdraw his plea. See, e.g., People
v Kean, 204 Mich App 533, 535-536; 516 NW2d 128 (1994).
Next, defendant argues that the trial court erred by ordering defendant to pay court costs
and attorney fees without analyzing his ability to pay. We agree, with respect to the attorney
fees. See People v Dunbar, 264 Mich App 240, 254-255; 690 NW2d 476 (2004). Because
Dunbar explicitly addresses only attorney fees, id. at 255-256, and because defendant cites no
binding authority indicating that the same rationale applies concerning court costs, we decline to
remand with respect to court costs.
Affirmed in part but remanded for reconsideration of the order directing defendant to pay
attorney fees. We do not retain jurisdiction.
/s/ Mark J. Cavanagh
/s/ Patrick M. Meter
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