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Joseph Franklin was charged with first-degree home invasion, larceny in a building, larceny of a firearm, and felony-firearm. He pleaded guilty to second-degree home invasion in exchange for the prosecutor’s agreement to dismiss the remaining charges. Franklin’s attorney asked for an evaluation pursuant to People v Cobbs
, 443 Mich 276, 283 (1993), from the trial court, asking that Franklin be sentenced to probation under the Holmes Youthful Trainee Act , MCL 762.11, if he qualified for it. A Cobbs
evaluation is the judge’s initial determination of the appropriate sentence for the charged offense, based on information available at the plea proceeding. The judge’s evaluation must be made at a party’s request and not on the judge’s own initiative. The trial judge in Franklin’s case initially agreed to probation, and the prosecutor did not object. But when Franklin appeared for sentencing, the trial judge stated that she would not sentence him to probation under HYTA. She set aside the plea and scheduled a trial on all the charges. Franklin waived his right to a jury, and was convicted following a bench trial of first-degree home invasion, larceny in a building, and larceny of a firearm. He was sentenced to four to 20 years in prison for the first-degree home invasion conviction, and to time served for the other convictions.
Franklin appealed, and the Court of Appeals vacated his convictions in an unpublished per curiam opinion. The appellate court said that the “pivotal question is whether the trial court could, after concluding that it would not impose the sentence agreed upon by the parties, unilaterally set aside the plea and sentence agreement, or if it could only refuse to impose the agreed upon sentence and allow defendant the option to withdraw his guilty plea . . . .” The Court of Appeals turned to MCR 6.302(C)(3), which states that if a court does not choose to follow an agreed-upon sentence, the defendant “will be allowed to withdraw from the plea agreement.” Under this rule, the trial court could not unilaterally set aside the plea itself; that decision should be made by the defendant, the Court of Appeals held, in accordance with the requirements of MCR 6.310(B)(2)(a). The trial judge’s failure to inform Franklin what sentence she intended to impose, and her failure to allow Franklin the option of withdrawing his plea, amounted to plain error, the Court of Appeals said. The Court of Appeals remanded the case to the trial court so that Franklin could be given the opportunity to withdraw his guilty plea to second-degree home invasion. If Franklin chose not to withdraw his plea, the Court of Appeals held, the trial court should then sentence him. The prosecutor appeals.