STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                   UNPUBLISHED
                                                                   February 21, 2017
              Plaintiff-Appellee,

v                                                                  No. 329903
                                                                   Wayne Circuit Court
TIMOTHY RODRICK ROBINSON,                                          LC No. 14-007333-01-FC

              Defendant-Appellant.


Before: STEPHENS, P.J., and SERVITTO and SHAPIRO, JJ.

PER CURIAM.

        Defendant appeals by leave granted1 an order granting in part his motion to withdraw
plea or for specific performance of his plea agreement.

        Defendant was charged with arson and several other offenses as a habitual offender.2 At
the time of these offenses, defendant was on parole from previous convictions for which he had
been sentenced on July 26, 2001. Defendant pleaded no contest to arson pursuant to a
charge/sentencing bargain stated on the record at his plea hearing. The prosecutor agreed to drop
all other charges and stated that, although defendant was on parole at the time of the crime, the
parole “would be closed,” i.e. his prior sentence would not resume, and the only sentence he
would be required to serve was the 10 to 20 year term agreed to on the arson charge. The
relevant colloquy reads as follows:

       The Court: And to the Prosecution I understand that there is a settlement offer
       and notice of acceptance.


1
  People v Robinson, unpublished order of the Court of Appeals, entered December 30, 2015
(Docket No. 329903).
2
   Defendant was also charged with assault with intent to murder, MCL 750.83, the
manufacture/possession of a Molotov cocktail/explosive or incendiary device causing property
damage, MCL 750.211a, felon in possession of a firearm, MCL 750.224f, and possession of a
firearm during the commission of a felony (felony-firearm), MCL 750.227b. Defendant also
faced a second offense enhancement for a previous felony-firearm conviction and a sentence
enhancement as a fourth habitual offender, MCL 769.12.



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       Prosecutor: There is, your Honor. We have offered for the defendant to plead to
       count two, arson in the second degree. The People would dismiss the remaining
       counts and withdraw the habitual notice with a sentence agreement of 10 years to
       20 years in the Michigan Department of Corrections. Now I understand the last
       time this case was up in court there was an issue to whether or not this would
       result in a violation of parole. We have looked into that and the information that I
       received from Agent Vanessa Butler of the Lawton Officer [sic] who I believe is
       the defendant’s parole agent is that if he pleads guilty on this case they will close
       out his current parole. So technically, it would be a violation but [Butler is] not
       going to report it. It would just result in a new term of parole no additional
       incarceration. So, essentially per [Butler] they’re going to close out [defendant’s]
       other parole and he will just be serving the 10 years to 20 years on this case.
       [Emphasis added.]

       Defense counsel: That’s how I understand it also . . . . Parole is not in a position
       to put things in writing. . . . But what they have represented twice is exactly what
       the prosecution just laid down.

       The Court: All right. I’ll operate under the assumption that all of this is in place. .
       . . Mr. Robinson, did you hear and understand the agreement that was placed on
       the record by the attorneys?

       Defendant: Yes.

       The Court: Is this what you’ve agreed to do?

       Defendant: Yes.

       Just before the hearing concluded, defense counsel raised the question of how the Court
would proceed if the probation department did not act in the manner they had represented. The
judge responded, “I have stated on the record that, you know I am relying on the work that the
prosecution and [defense counsel] have done on this issue. Let’s not worry about problems that
don’t exist yet.”

        The record contains no further information concerning any decisions by the probation
department to “close out” defendant’s parole. On the original Judgment of Sentence, the trial
court did not check the box that, if checked, directs that defendant’s sentence be consecutive to
any other sentence. However, after receiving a letter from the DOC indicating that it
automatically considers all parolees who commit new crimes to be in violation of their parole,
the trial court issued an Amended Judgment of Sentence that provided the sentence would be
consecutive to parole. According to defense counsel’s representation, the department then
calculated his combined maximum discharge date as ending in 2057.3 Defendant brought a



3
  When a defendant is to serve consecutive sentences, the DOC does not make two separate
parole determinations, i.e. it does not discharge a prisoner from one sentence at which point he



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motion to withdraw plea, and, after a hearing, the trial court issued a second Amended Judgment
of Sentence that specifically provided that the sentence for the arson conviction would be
“concurrent to parole.”

        Neither party has provided us with information as to the time remaining on defendant’s
maximum term from his 2001 sentences. The 20 year maximum for the arson charge was
imposed on December 19, 2014, and so his 20 year maximum term for that crime should end on
December 18, 2034. We take judicial notice of the DOC information provided on OTIS
regarding defendant as of release of this opinion. That report states that his earliest possible
release date (i.e. the expiration of his minimum terms) is December 18, 2024 and that his
maximum term will expire on January 28, 2038. Thus, although it appears that defendant’s
maximum term as calculated by the DOC has been reduced by about 19 years since issuance of
the trial court’s third judgment of sentence, it still reflects a maximum sentence of a little more
than three years longer than that which would be served for the arson sentence alone.

        Therefore, defendant did not receive the full benefit of the plea bargain placed on the
record, and he is entitled to relief. We cannot order specific performance as defendant requests
since the plea bargain promised a sentence that did not comply with MCL 768.7a(2).
Accordingly, we remand to allow defendant to withdraw his plea should he choose to do so in
which case he would be afforded a trial on the original charges with any resulting sentences to be
served consecutively to the full balance of his term remaining on his 2001 sentence. We do not
retain jurisdiction.



                                                            /s/ Cynthia Diane Stephens
                                                            /s/ Deborah A. Servitto
                                                            /s/ Douglas B. Shapiro




begins to serve the other. Rather, the Department combines the defendant’s minimum sentences
to establish a single combined minimum and combines his maximum sentences to establish a
single combined maximum. MCL 791.234(4). For example, a prisoner sentenced to consecutive
terms of 5 to10 years and 10 to 20 years will become eligible for parole after 15 years (the
combined minimum terms) and will be entitled to discharge after 30 years (the combined
maximum terms).



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