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STATE OF MICHIGAN COURT OF APPEALS

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee, v ANDREW BRIAN MORRISON, Defendant-Appellant.

UNPUBLISHED March 25, 2010

No. 285662 Manistee Circuit Court LC No. 07-003778 FC

Before: Meter, P.J., and Murphy, C.J., and Zahra, J. PER CURIAM. Defendant pleaded guilty to carjacking, MCL 750.529a. Thereafter, defendant unsuccessfully attempted to withdraw his plea and was subsequently sentenced to a term of 20 to 42 years in prison. Defendant appeals by leave granted. We affirm. Defendant first argues that the trial court abused its discretion in denying his motion to withdraw the plea. We review for an abuse of discretion a trial court's decision to deny a defendant's motion to withdraw a plea. People v Wilhite, 240 Mich App 587, 594; 618 NW2d 386 (2000). We consider whether the court's decision fell within the range of reasonable and principled outcomes. Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809 (2006). At a pretrial hearing, the prosecutor informed the court that he would agree to dismiss the habitual offender supplement that had been filed if defendant pleaded guilty to carjacking. Defendant stated that he would plead. Defense counsel then noted that the habitual offender notice had, contrary to statute, been filed more than 21 days after defendant's arraignment and indicated that he did not want defendant involved in an illusory plea. The trial court granted defendant's request for more time to research the matter before accepting the plea. Six weeks later, the plea was again brought before the trial court. The plea was described as defendant's agreeing to plead guilty to carjacking in exchange for the prosecutor's promise to not pursue an habitual offender enhancement and to not oppose imposition of a sentence within the guidelines. Defendant accepted the plea and indicated on the record that he understood its conditions and that the possible maximum sentence was life. At defendant's first sentencing hearing, defendant's counsel indicated that defendant had done some independent research and felt that he was led into an illusory plea and, as a result, wished to withdraw it. The trial court refused to grant the oral motion, but stated that it would allow time for a written motion to be filed. A pro se motion was subsequently filed, followed by -1-

a motion filed on defendant's behalf by defense counsel. The first motion did not raise the issue of an illusory plea,1 but the second did. The trial court denied defendant's motions, concluding, in part, that defendant had accepted the plea agreement with full knowledge that the habitual offender notice had been filed late. While a plea may be withdrawn after acceptance but before sentencing if it is in the interest of justice, MCR 6.310(B)(1), "[t]here is no absolute right to withdraw a guilty plea once it has been accepted," People v Gomer, 206 Mich App 55, 56; 520 NW2d 360 (1994). However, a defendant may be entitled to withdraw a guilty plea if the agreement the plea was based on was illusory, i.e., if it provided no benefit to the defendant. People v Harris, 224 Mich App 130, 132; 568 NW2d 149 (1997). In the instant case, it is clear that defendant was aware that the habitual offender notice had not been timely filed. Indeed, defendant requested additional time to research the issue before accepting the plea, and the trial court granted this additional time. Despite being aware of the late notice, defendant nevertheless accepted the plea six weeks later and acknowledged the rights that would be given up by pleading. Because defendant was aware of the questionable benefit of the plea agreement regarding the promise not to seek sentence enhancement under the habitual offender statute, defendant cannot now claim on appeal that the agreement was illusory. People v Williams, 153 Mich App 346, 351; 395 NW2d 316 (1986) ("[a]s long as the defendant knows in advance that the plea bargain has no value or knows that the value is questionable or minimal, the plea bargain is not illusory").2 Defendant next argues that the trial court improperly calculated his sentencing guidelines score. We disagree. This Court reviews a sentencing court's scoring decision to determine whether the trial court properly exercised its discretion and whether the record evidence adequately supports a particular score. . . . However, [a scoring] issue also entails a question of statutory interpretation, which is reviewed de novo. [People v

Defendant's pro se motion focused on issues related to sentencing, which the prosectuor indicated did not support withdrawing the plea and were better addressed during sentencing. We also note that the plea was supported by an additional promise

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