PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Edward Duane POINTER-BEY, Defendant-Appellant., 909 N.W.2d 523

Per Curiam. Defendant pleaded guilty to armed robbery, MCL 750.529, conspiracy to commit armed robbery, MCL 750.529 and MCL 750.157a ; bank robbery, MCL 750.531, conspiracy to commit bank robbery, MCL 750.531 and MCL 750.157a ; two counts of assault with a dangerous weapon (felonious assault), MCL 750.82 ; possession of a firearm during the commission of a felony (felony-firearm), second offense, MCL 750.227b ; and being a felon in possession of a firearm (felon-in-possession), MCL 750.224f. Defendant now appeals by delayed leave granted.

Because there were errors in the plea proceedings that would entitle defendant to have his plea set aside, we vacate the trial court's orders denying defendant's motions to withdraw his plea, and we remand for proceedings consistent with this opinion and with MCR 6.310(C). Defendant's convictions arise from his actions on February 20, 2015, when he and two co-conspirators robbed a credit union in Marysville, Michigan.

The prosecutor charged defendant with eight counts: (1) armed robbery, (2) conspiracy to commit armed robbery, (3) bank robbery, (4) conspiracy to commit bank robbery, (5) felonious assault, (6) felony-firearm, (7) a second count of felonious assault, and (8) felon-in-possession. The prosecutor and defendant entered into a plea agreement, and defendant pleaded guilty as charged on September 21, 2015.

At the plea hearing, the prosecutor placed the terms of the agreement on the record, explaining that, in exchange for defendant's plea, the prosecutor agreed not to charge defendant with another bank robbery committed on January 20, 2015. Additionally, in terms of sentencing, the prosecutor agreed to reduce defendant's habitual offender status from fourth-offense (with a 25-year mandatory minimum sentence under MCL 769.12(1)(a) ) to third-offense.

Following the prosecutor's recitation of the agreement, the trial court stated on the record that "a 20 year minimum sentence would be appropriate...." Defendant, on the record, pleaded guilty and then provided a factual basis for his plea. After defendant pleaded guilty, he filed a motion to withdraw his plea, which the trial court denied.

The trial court then sentenced defendant as a third-offense habitual offender, MCL 769.11, to 15 to 45 years' imprisonment for the convictions of armed robbery, conspiracy to commit armed robbery, bank robbery, and conspiracy to commit bank robbery, 4 to 8 years' imprisonment for each felonious-assault conviction, 5 to 10 years' imprisonment for the felon-in-possession conviction, and 5 years' imprisonment, to be served consecutively, for the felony-firearm, second offense, conviction. Following his sentencing, defendant filed another motion to withdraw his plea, which the trial court again denied.

Defendant now appeals by delayed leave granted. I. MOTIONS TO WITHDRAW PLEA On appeal, defendant first submits that the trial court abused its discretion by denying his motions to withdraw his plea.

Specifically, defendant contends that the plea proceedings were defective because (1) he was not informed of the sentencing consequences related to his convictions of felonious assault and felon-in-possession, (2) there was no factual basis for his felony-firearm conviction because he had not previously been convicted under MCL 750.227b, (3) his plea was illusory because he was not subject to a 25-year mandatory minimum as a fourth-offense habitual offender, and (4) the trial court made promises of leniency at the plea hearing that were not fulfilled insofar as the trial court failed to sentence him in accordance with the initial Cobbs evaluation.

Defendant preserved his claims of error by filing motions to withdraw his plea in the trial court. See MCR 6.310(D). We review for an abuse of discretion a trial court's ruling on a motion to withdraw a plea. People v. Brown , 492 Mich. 684, 688, 822 N.W.2d 208 (2012). "A trial court abuses its discretion when its decision falls outside the range of reasonable and principled outcomes." People v. Strickland , 293 Mich.App. 393, 397, 810 N.W.2d 660 (2011) (quotation marks and citation omitted). This Court reviews de novo underlying questions of law and for clear error the trial court's factual findings. People v.

Martinez , 307 Mich.App. 641, 646-647, 861 N.W.2d 905 (2014). "There is no absolute right to withdraw a guilty plea once the trial court has accepted it." People v. Al-Shara , 311 Mich.App. 560, 567, 876 N.W.2d 826 (2015) (quotation marks and citation omitted). However, a defendant may move to have his or her plea set aside on the basis of an error in the plea proceedings. MCR 6.310(B)(1). To succeed on such a motion after sentencing, the defendant "must demonstrate a defect in the plea-taking process." Brown , 492 Mich. at 693, 822 N.W.2d 208.

"Guilty- and no-contest-plea proceedings are governed by MCR 6.302." People v. Cole , 491 Mich. 325, 330, 817 N.W.2d 497 (2012). Under MCR 6.302, to be valid, a plea must be "understanding, voluntary, and accurate." Brown , 492 Mich. at 688-689, 822 N.W.2d 208. To ensure that a guilty plea is accurate, the trial court must establish a factual basis for the plea. MCR 6.302(D) ; People v. Plumaj , 284 Mich.App. 645, 648 n. 2, 773 N.W.2d 763 (2009). "In order for a plea to be voluntary and understanding, the defendant must be fully aware of the direct consequences of the plea." People v.

Blanton , 317 Mich.App. 107, 118, 894 N.W.2d 613 (2016) (quotation marks and citation omitted). "The penalty to be imposed is the most obvious direct consequence of a conviction." Id. (quotation marks, citation, and brackets omitted). Therefore, MCR 6.302(B)(2) requires the trial court to advise a defendant, prior to the defendant's entering a plea, of "the maximum possible sentence for the offense and any mandatory minimum sentence required by law...." Brown , 492 Mich. at 689, 822 N.W.2d 208. A.

SENTENCES FOR FELONIOUS ASSAULT AND FELON-IN-POSSESSION Given the requirements of MCR 6.302, we conclude that defendant's guilty plea was not understandingly entered because defendant was not informed of the maximum sentence for felon-in-possession.

At defendant's sentencing, the prosecutor informed the trial court of defendant's plea agreement, stating that defendant will be pleading guilty as charged to Count One, which is robbery armed, with maximum penalty is [sic] life or any term of years; Count Two, conspiracy to commit robbery armed, also life offense or any term of years; Count Three, bank robbery, life offense or any term of years; Count Four, conspiracy to commit bank robbery, life offense or any term of years; Count Five, which is assault with a dangerous weapon or felonious assault ...; Count Six, weapon felony firearm, second offense, which is mandatory five year consecutive; Count Seven, assault with a dangerous weapon felonious assault, ... which is a four year maximum penalty and Count Eight, which is weapon firearm, possession by a felon.

In providing this explanation of defendant's maximum sentences, the prosecution failed to state the maximum sentences for Count 5, felonious assault, and Count 8, felon-in-possession. The prosecutor did advise defendant, in relation to Count 7, that felonious assault carried a maximum penalty of 4 years. But even if this should be understood to apply equally to Count 5, the fact remains that defendant was not informed of the maximum possible sentence for felon-in-possession. That omission rendered defendant's plea proceeding defective.

Brown , 492 Mich. at 694, 822 N.W.2d 208 ; Blanton , 317 Mich.App. at 120, 894 N.W.2d 613. Consequently, defendant was entitled to withdraw his plea in its entirety, Blanton , 317 Mich.App. at 126, 894 N.W.2d 613, and, the trial court's failure to allow defendant to do so constituted an abuse of discretion. This matter must therefore be remanded to the trial court, where defendant shall be given "the opportunity to elect to allow the plea and sentence to stand or to withdraw the plea" pursuant to MCR 6.310(C). B.

FELONY-FIREARM Next, in terms of the accuracy of defendant's plea, defendant contends that there was no factual basis for his felony-firearm conviction because, although he was sentenced as if it was his second felony-firearm offense, he did not have a prior conviction under MCL 750.227b. Contrary to defendant's framing of the matter, this issue does not concern the accuracy of his plea. A conviction under MCL 750.227b"requires proof beyond a reasonable doubt that a defendant carried a firearm during the commission or attempted commission of a felony and nothing more ." People v.

Miles , 454 Mich. 90, 99, 559 N.W.2d 299 (1997) (emphasis added). Consequently, defendant's plea was accurate because defendant admitted at the plea hearing that he possessed a gun during the bank robbery, and this provided a factual basis for his felony-firearm conviction. See MCR 6.302(D)(1). Whether defendant "was a first-, second-, or third-time offender under the felony-firearm act affects only the duration of the defendant's sentence." Miles , 454 Mich. at 100, 559 N.W.2d 299.

In other words, a prior conviction under MCL 750.227b is not an element of felony-firearm; instead, it is relevant to determining whether defendant should be subject to a sentencing enhancement. See Miles , 454 Mich. at 99, 559 N.W.2d 299. Because a prior conviction is not an element of felony-firearm, any error relating to defendant's lack of a prior conviction under MCL 750.227b does not affect the accuracy of defendant's felony-firearm plea. Nevertheless, we agree with defendant's substantive arguments regarding MCL 750.227b, and we find that defendant is entitled to relief on appeal.

In particular, defendant contends that he should not have been sentenced as a second offender under MCL 750.227b because he not have a prior conviction under MCL 750.227b. In comparison, the prosecutor contends that defendant should be sentenced as a second offender because he has a prior conviction under a federal statute similar to MCL 750.227b.

With regard to the sentencing enhancement for a second offense, MCL 750.227b(1), the felony-firearm statute, provides: A person who carries or has in his or her possession a firearm when he or she commits or attempts to commit a felony ... is guilty of a felony and shall be punished by imprisonment for 2 years. Upon a second conviction under this subsection , the person shall be punished by imprisonment for 5 years. [Emphasis added.] Logic dictates that to have a "second conviction under this subsection," there must have been a prior conviction. See People v. Alexander , 422 Mich. 932, 369 N.W.2d 461 (1985).

And the phrase "this subsection" clearly refers to MCL 750.227b(1). Contrary to the prosecutor's argument on appeal, the statute gives no indication that convictions under statutes from other jurisdictions should be deemed convictions under "this subsection," and we will not add such a provision to the statute. See People v. Carruthers , 301 Mich.App. 590, 604, 837 N.W.2d 16 (2013).

As written, the plain language of the statute unambiguously requires a defendant to have been previously convicted of felony-firearm under MCL 750.227b(1) before the defendant can be subjected to a mandatory five-year prison term as a second offender. Here, in the felony information, the prosecution stated that defendant had been convicted under MCL 750.227b on or about June 3, 1993. However, according to the presentence investigation report (PSIR), defendant has never been convicted of felony-firearm under MCL 750.227b(1).

Rather, defendant was convicted in federal court of using a firearm to commit a violent crime, a violation of 18 USC 924(c)(1)(A), in the United States District Court for the Eastern District of Wisconsin. Because this federal conviction was not obtained under MCL 750.227b(1), the federal conviction could not be used to enhance defendant's mandatory consecutive sentence for felony-firearm to a 5-year term of imprisonment for a second offense.

Given that defendant was given misinformation regarding the mandatory minimum sentence he faced for felony-firearm, the plea proceedings were defective under MCR 6.302(B)(2). See Brown , 492 Mich. at 694, 822 N.W.2d 208 ; Blanton , 317 Mich.App. at 120, 894 N.W.2d 613. Moreover, given that defendant's felony-firearm sentence was invalid, defendant is entitled to correction of this invalid sentence.

"A sentence is invalid when it is beyond statutory limits, when it is based upon constitutionally impermissible grounds, improper assumptions of guilt, a misconception of law, or when it conforms to local sentencing policy rather than individualized facts." Miles , 454 Mich. at 96, 559 N.W.2d 299. As discussed, there is no statutory basis for a 5-year sentence in this case because defendant is not a second offender under MCL 750.227b(1). Instead, he should have faced only a 2-year term under MCL 750.227b(1).

Because the sentence imposed exceeded the statutory limit set forth in MCL 750.227b(1), it is invalid and must be corrected. C. HABITUAL OFFENDER Defendant additionally asserts that his plea bargain was illusory because, contrary to the prosecutor's representations, he was not subject to a 25-year minimum term of imprisonment under MCL 769.12(1)(

a) as a fourth-offense habitual offender. While there is merit to defendant's assertion that he did not face a 25-year minimum term of imprisonment, in our judgment this does not render defendant's plea illusory because the record is clear that he received many benefits in exchange for his plea. A criminal defendant may be entitled to withdraw his or her guilty plea if the bargain on which the guilty plea was based was illusory, i.e., the defendant received no benefit from the agreement. People v. Harris , 224 Mich.App. 130, 132, 568 N.W.2d 149 (1997).

In this case, one of the purported benefits of the plea bargain was the prosecutor's agreement to take the 25-year mandatory minimum for fourth-offense habitual offenders under MCL 769.12(1)(a)"off the table." However, defendant contends that his plea was illusory because MCL 769.12(1)(

a) was inapplicable to this case, to the agreement to forgo pursuit of this 25-year mandatory minimum had no value. See People v. Bonoite , 112 Mich.App. 167, 169, 315 N.W.2d 884 (1982) ("[I]f defendant's plea was induced by a promise to forego [sic] habitual offender proceedings when no such proceeding would be warranted, the plea bargain was illusory."). Relevant to defendant's argument, MCL 769.12, states:

(1) If a person has been convicted of any combination of 3 or more felonies or attempts to commit felonies, whether the convictions occurred in this state or would have been for felonies or attempts to commit felonies in this state if obtained in this state , and that person commits a subsequent felony within this state, the person shall be punished upon conviction of the subsequent felony and sentencing under

section 13 of this

chapter as follows: (

a) If the subsequent felony is a serious crime or a conspiracy to commit a serious crime, and 1 or more of the prior felony convictions are listed prior felonies , the court shall sentence the person to imprisonment for not less than 25 years. Not more than 1 conviction arising out of the same transaction shall be considered a prior felony conviction for the purposes of this subsection only. [Emphasis added.] The phrase "listed prior felony" is statutorily defined by MCL 769.12(6)(

a) to mean "violation or attempted violation" of the Michigan statutory provisions specified in MCL 769.12(6)(a)(

i) to (v). In listing these specific Michigan statutory provisions, MCL 769.12(6)(

a) contains no indication that convictions under comparable statutes from other jurisdictions should be considered "listed prior felonies" for purposes of MCL 769.12(1)(a), and we will not add such a provision to the statute. See Carruthers , 301 Mich.App. at 604, 837 N.W.2d 16.

We recognize that, as emphasized by the prosecutor, MCL 769.12(1) indicates that an individual is subject to MCL 769.12 if the person commits a subsequent felony in Michigan when that person has been convicted of any combination of three or more felonies or attempts to commit felonies, whether the prior convictions occurred in Michigan "or would have been for felonies or attempts to commit felonies in this state if obtained in this state...." However, we are not persuaded that this general instruction applies to the determination of "listed prior felonies" for purposes of MCL 769.12(1)(a).

As used in MCL 769.12(1)(a), "prior felony convictions" are distinguished from "listed prior felonies," and the phrase "listed prior felony" is given a specific statutory definition that does not encompass convictions arising under federal statutes or the statutes of other states. This specific definition of "listed prior felonies" for purposes of MCL 769.12(1)(

a) controls over the more general instruction that felonies from other jurisdictions should be considered under MCL 769.12(1). People v. Meeks , 293 Mich.App. 115, 118, 808 N.W.2d 825 (2011) ("[W]hen a specific statutory provision differs from a related general one, the specific one controls."). In this case, defendant has no convictions under the Michigan statutes identified as "listed prior felonies" under MCL 769.12(6)(a). The prosecution asserts that defendant has a federal conviction for armed bank robbery under 18 USC 2113(

a) that is comparable to armed robbery under MCL 750.529, a "listed prior felony" under MCL 769.12(6)(a)(iii ). However, as discussed, "listed prior felonies" are limited to those detailed in MCL 769.12(6)(a)(

i) to (v), and a conviction under 18 USC 2113(

a) is not included in these provisions. Thus, defendant's armed bank robbery conviction cannot be considered. Consequently, defendant was not subject to a 25-year minimum term of imprisonment under MCL 769.12(1)(

a) because he does not have a "listed prior felony." The prosecutor's offer to take the 25-year minimum term of imprisonment "off the table" in exchange for defendant's plea was based on a misunderstanding of the law. It provided defendant with no actual benefit because he was not subject to MCL 769.12(1)(a). Nevertheless, it is clear that defendant received considerable benefit for his plea, and we are not persuaded by his assertion that the bargain was illusory. For instance, while MCL 769.12(1)(

a) did not apply, defendant concedes that he was nevertheless a fourth-offense habitual offender subject to MCL 769.12(1)(b). In exchange for his plea, the prosecutor agreed to reduce defendant's habitual offender status to third-offense habitual offender, MCL 769.11. Moreover, the prosecutor also agreed not to charge defendant in connection with a second bank robbery committed on January 20, 2015.

Given these facts, "[d]efendant may not have received as many benefits as he thought he would be receiving for his plea, but he did receive many benefits for the plea," and we cannot conclude that his bargain was illusory. People v. Thompson , 101 Mich.App. 428, 430, 300 N.W.2d 585 (1980). See also People v. Kidd , 121 Mich.App. 92, 96-97, 328 N.W.2d 394 (1982). D. COBBS EVALUATION Next, defendant argues that he is entitled to withdraw his guilty plea because the trial court sentenced him in excess of the preliminary sentence evaluation.

If a defendant pleads guilty in reliance on a judge's preliminary sentencing evaluation and his or her sentence later exceeds the preliminary evaluation, the defendant may withdraw his or her guilty plea. Cobbs , 443 Mich. at 283, 505 N.W.2d 208. However, in this case, defendant's sentence did not exceed the trial court's preliminary sentence evaluation.

Before defendant entered his guilty plea, the trial judge noted: I have discussed with all the parties involved here what may be considered to be a reasonable minimum sentence in this case as well as the others, and with regard to [defendant] I am satisfied that a 20 year minimum sentence would be appropriate and notwithstanding the offenses that carry mandatory minimums and however they are calculated and the minimum sentence that I think probably under full consideration understanding the max in this case would be 20 years.

While defendant claims he understood that his maximum sentence would be 20 years of imprisonment, when the trial court's remarks are read as a whole, it is plain that the trial court indicated that a 20-year minimum sentence would be appropriate. Consistently with this preliminary evaluation, defendant was sentenced to a minimum of 20 years' imprisonment. Of his concurrent sentences, his longest minimum was 15 years, which combined with the consecutive five years' imprisonment for felony-firearm, totals a minimum of 20 years.

Because the trial court sentenced defendant in accordance with the preliminary evaluation, defendant is not entitled to withdraw his guilty plea on that basis. See Cobbs, 443 Mich. at 283, 505 N.W.2d 208. II. INEFFECTIVE ASSISTANCE OF COUNSEL Finally, in defendant's brief on appeal, as well as in his Standard 4 brief on appeal, defendant advances several claims of ineffective assistance of counsel. No factual record has been created with respect to defendant's claims, meaning that our review is limited to mistakes apparent on the record. People v. Solloway , 316 Mich.App. 174, 188, 891 N.W.2d 255 (2016).

"Effective assistance of counsel is presumed, and the defendant bears a heavy burden of proving otherwise." People v. Lockett , 295 Mich.App. 165, 187, 814 N.W.2d 295 (2012). When claiming ineffective assistance of counsel, it is defendant's burden to prove "(1) that counsel's representation fell below an objective standard of reasonableness, and (2) that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." People v. Douglas , 496 Mich. 557, 592, 852 N.W.2d 587 (2014) (quotation marks and citation omitted).

Defendant also bears the burden of establishing the factual predicate for his claim. Id. First, defendant contends that counsel provided ineffective assistance by failing to recognize that defendant was not subject to sentencing enhancement for felony-firearm under MCL 750.227b(1) and by failing to ensure that defendant was correctly advised of all the sentencing consequences as required by MCR 6.302(B)(2) and (C)(3). Given that we have already granted defendant relief in connection with these issues, his ineffective assistance of counsel arguments in this regard are moot, and we need not consider them.

See People v. Jones , 317 Mich.App. 416, 431-432, 894 N.W.2d 723 (2016). Second, in his brief on appeal, defendant argues that defense counsel was ineffective for allowing defendant to enter into an illusory plea agreement. However, as discussed, defendant's plea agreement was not illusory. Therefore, his ineffective assistance claim in this regard also lacks merit. See Douglas , 496 Mich. at 592, 852 N.W.2d 587.

Finally, defendant argues that defense counsel was deficient for failing to provide defendant with discovery, for pressuring defendant into pleading guilty, and for failing to review the PSIR with defendant. These claims are not supported by the record. Defendant's assertion that he was pressured into pleading guilty is wholly belied by his statements at the plea hearing, during which he testified that he was offering his guilty plea freely and voluntarily, that no one had threatened or coerced him into accepting the plea agreement, and that his plea was not made under duress. See People v.

White , 307 Mich.App. 425, 432, 862 N.W.2d 1 (2014). There is also no indication that counsel failed to provide discovery to defendant or failed to review the PSIR with him; and, in any event, defendant does not explain how such purported failings affected the outcome of the plea proceedings. Defendant has not shown that he was deprived of the effective assistance of counsel. See Solloway , 316 Mich.App. at 188, 891 N.W.2d 255. III.

CONCLUSION In sum, the plea proceedings were defective insofar as defendant was not informed of the sentencing consequences for felon-in-possession and he was misadvised with regard to the mandatory minimum he faced for felony-firearm under MCL 750.227b(1). Although defendant's plea bargain was not illusory, defendant was also misinformed that he faced a 25-year mandatory minimum under MCL 769.12(1)(a). Given these deficiencies, defendant should be given an opportunity to withdraw his guilty plea under MCR 6.310(C).

We vacate the trial court's order denying defendant's motion to withdraw his guilty plea, and we remand to the trial court for proceedings consistent with this opinion. We do not retain jurisdiction. Shapiro, P.J., and Hoekstra and M. J. Kelly, JJ., concurred. People v. Pointerbey , unpublished order of the Court of Appeals, entered July 11, 2016 (Docket No. 333234). People v. Cobbs , 443 Mich. 276, 283, 505 N.W.2d 208 (1993).

Although defendant did not title his motion in the trial court as one for resentencing or as one to correct an invalid sentence under MCR 6.429, he plainly argued that he was not subject to enhanced sentencing as a second offender under MCL 750.227b. To ignore this meritorious sentencing argument based on defendant's label for his timely motion would exalt form over substance. People v. Lloyd , 284 Mich.App. 703, 706 n. 1, 774 N.W.2d 347 (2009). To the extent that defendant was misinformed that he faced a 25-year mandatory minimum sentence, the plea proceedings also failed to comply with MCR 6.302(B)(2).

See Brown , 492 Mich. at 694, 822 N.W.2d 208 ; Blanton , 317 Mich.App. at 120, 894 N.W.2d 613. To the extent that defendant requests a remand to develop an evidentiary record, this Court has twice denied this request. People v. Pointerbey , unpublished order of the Court of Appeals, entered December 20, 2016 (Docket No. 333234); People v. Pointerbey , unpublished order of the Court of Appeals, entered May 10, 2017 (Docket No. 333234). Those decisions are now the law of the case. See White , 307 Mich.App. at 428-429, 862 N.W.2d 1. In any event, we see no need for further factual development..

Defendant's request for an evidentiary hearing is again denied.