Sentencing; Specific performance as to a plea agreement; People v Siebert; Scoring of PRV 2; MCL 777.52; Whether defendant had 4 or more prior low severity felony convictions; MCL 777.52(1)(a); Felonious assault; MCL 750.82(1); Attempted felonious assault; MCL 750.92(3); “Felony”; People v Smith; Scoring of OV 9; MCL 777.39; Whether there were 2 to 9 victims placed in danger of physical injury or death; MCL 777.39(1)(c); Assault with intent to rob while armed (AWIR)

The court held that the trial court did not err by refusing to order specific performance from the prosecution as to defendant’s plea agreement, or in scoring PRV 2 and OV 9. He pled guilty to first-degree home invasion, AWIR, assault with a dangerous weapon, and resisting or obstructing a police officer. The trial court sentenced him as third-offense habitual offender to 15 to 40 years for first-degree home invasion and AWIR, 2 to 8 for assault with a dangerous weapon, and 1 to 4 for resisting or obstructing. On appeal, the court rejected his argument that the trial court erred by refusing to order specific performance from the prosecution as to the plea agreement. “The prosecution fulfilled its obligations under the plea agreement: it lowered [defendant] from a fourth-offense habitual offender to a third-offense habitual offender, sent a memorandum to the probation department with the parties’ calculated guidelines range, and did not recommend consecutive sentencing. As such, there is nothing for the prosecution to specifically perform.” Further, nothing in the record suggested “the plea agreement was a ‘sentencing agreement,’ such that the prosecution and the trial court, in accepting the pleas, were required to adhere to the pleas’ terms or permit” defendant to withdraw them. “Nor is there any indication that, in addition to sending the memorandum to the probation department, the prosecution agreed to argue that the guidelines as calculated by the parties were accurate notwithstanding additional information that showed that they did not account for” his entire criminal history. Thus, “the prosecution did not breach its agreement when it deferred to the probation department’s scoring of the sentencing guidelines, which included additional criminal convictions.” The court also rejected his claim that the trial court erred by refusing to resentence him despite the fact that PRV 2 and OV 9 were improperly scored. First, “attempted felonious assault, under the Michigan Code of Criminal Procedure, is a low severity felony conviction.” Second, the PSIR version of events indicated defendant “continued to hold a pair of scissors to his grandmother’s neck after being offered his cousin’s keys. Under those circumstances, it is not apparent [his] intent to rob his grandmother ended when his cousin offered him the keys to his vehicle.” As such, the trial court did not err by finding both his “grandmother and his cousin were placed in danger of physical injury or death during the commission of the sentencing offense.” Affirmed.