People v. Christian
242 N.W.2d 813
Mich. Ct. App.
1976
Check Treatment
N. J. Kaufman, J.

Defendant was originally charged with felony murder, MCLA 750.316; MSA 28.548. In Detroit Recorder’s Court on March 10, 1975, he proffered a plea of nolo contendere to an *482 added charge of unarmed robbery, MCLA 750.530; MSA 28.798. Thе trial court took this plea under advisement and, on April 4, 1975, accepted the plea and sentenced defendant to a term of from 2 to 15 years in prison. Defendant now appеals of right and raises two issues for our consideration.

Defendant’s first claim of error is that the trial court’s sentence constituted the breach of an agreement among defendant, the prosecutor and the preliminary examination magistrate. Defendant contends that he had entered into an agreement with the prosecutor under which defendant would plead guilty to а reduced charge and would receive probation in return for defendant’s cooperation in the prosecution of the other perpetrators. Defendant claims that this аgreement was sanctioned by the preliminary examination magistrate. The magistrate was not the judge who ultimately accepted the plea and set sentence.

It is well-established that a defendant is entitled to some form of relief if his plea of guilty was induced by a promise subsequently unfulfilled. In re Valle, 364 Mich 471, 478; 110 NW2d 673 (1961), People v Johnson, 386 Mich 305, 311; 192 NW2d 482 (1971), People v Baker, 46 Mich App 495; 208 NW2d 220 (1973). Such relief generally will take one of two forms: (1) requiring specific performance of the bargain or (2) allowing defendant to withdraw the plea. Santobello v New York, 404 US 257, 267; 92 S Ct 495; 30 L Ed 2d 427 (1971) (Concurrence by Douglas, J.), People v Eck, 39 Mich App 176; 197 NW2d 289 (1972). In general, the choice of remedy is left to the discretion of thé trial court, Guilty Plea Cases, 395 Mich 96, 127; 235 NW2d 132 (1975), but this Court, following Justice Douglas’ concurrence in Santobello, supra, has indicated a desire to accord the defendant’s *483 preference considerable weight, People v Eck, supra at 179, People v Baker, supra at 497.

In the instant case, if the facts are as defendant alleges, People v Stevens, 45 Mich App 689; 206 NW2d 757 (1973), would seem to require us to grant ‍​‌‌​‌‌​​​​​‌​​‌‌‌​‌​‌‌​‌​‌‌​‌‌‌​‌‌​‌‌​‌​‌‌‌​‌​‌​‍defendant specific performance. In Stevens, defendant was present when the trial judge spoke by telephone to his lawyer and to an assistant prosecutor. The judge did not promise, but rather "indicated” an inclination, to give the minimum sentence if defendant pled guilty to the charged offense. The prosecutor apparently acceded. The judge later gave a sentence greater than the minimum. Although the judge had made no actual promise, this Court held that, because a reasonable man could conclude frоm the judge’s remarks that he would exercise his discretion in accord with his expressed indication, defendant should be granted his requested relief, specific performance of the "bargain”. Therefore, if there was a similar bargain here, it should be enforced.

The alleged bargain, however, does not appear on the face of the record. In such cases, this Court has followed one of two courses of action. Where evidence of an alleged bargain is supported only by a defense affidavit and no evidence of a bargain aрpears on the face of the plea transcript, the plea will be upheld. People v Guerrero, 57 Mich App 316; 225 NW2d 746 (1975). Where some evidence of a bargain appears on the face of the transcript, wе have utilized the remedy of People v Ginther, 390 Mich 436; 212 NW2d 922 (1973). See, e.g., People v Rodriguez, 61 Mich App 42; 232 NW2d 293 (1975). Cf. People v Rogers, 55 Mich App 491; 223 NW2d 20 (1974). In the instant case, there is some indication of involvement by the magistrate and of a possible reward by the prosecutor for defendant’s assistance.

*484 Pertinеnt statements are found in a discussion between the trial judge, defendant and defense counsel:

"[The Court]: I allowed this plea and took it under advisement in the first instance because the detective in charge, Mr. Gilbert Hill, made a statement on the record, and has talked to me privately and very persuasively in your behalf.
"Defendant Christian: Yes, I understand.
"The Court: Your counsel has made a number of entreaties on your behаlf to me also, and I think to a certain extent he was misled by another Judge, consequently may have misled you because of what he was told, and I realize that he was in some spot in this also.
"Now I don’t want you to be misled as to what is going to happen now. I have reviewed this. In light of all the facts and all the circumstances I don’t feel that I can just give you probation. It would be ‍​‌‌​‌‌​​​​​‌​​‌‌‌​‌​‌‌​‌​‌‌​‌‌‌​‌‌​‌‌​‌​‌‌‌​‌​‌​‍my intention if I аccept this plea and if I impose sentence to set your maximum at 15 years, and that is set by the legislature, and your minimum at 2 years and send you to the Michigan Training Unit.
"Now I still feel that it is only becausе a number of people had interceded on your behalf that I could impose that sentence.
"But because this is an unusual situation before I accept this plea, before I impose that sentence, I am going to give you an opportunity, if you want, to withdraw the plea, and I will set it for trial. You can take some time to think about that if you want.
"Defendant Christian: Can I consult with my attorney?
"The Court: Yes.
"Mr. Rubach [Defense Counsel]: Your Honor, at the time that wе first appeared before Judge Colombo, because of certain — I don’t want to hurt anybody, you understand that — certain representations were made to me, and I don’t even have to mention what, who they were. I waived Examination, and the Judge was a little astounded by this, and that’s how it happened that he *485 made the statement that was made, and he did that in good faith, and I don’t fеel that that — that in any way we have been damaged by what he has done.
"Very, very recently, before you took this plea of nolo contendere, Your Honor, the prosecution hаd indicated that if we were not satisfied with the fact he had not had a preliminary Examination, that they would move themselves to have a preliminary Examination.”

Based on this evidence alone, notably the apparent involvement of the magistrate and the request for leniency by the police, we would remand for a hearing to determine if the magistrate and proseсutor together offered defendant a bargain. If the magistrate alone promised probation, he would have been acting beyond his authority inasmuch as acceptance оf a lesser charge not included in the information is within the prosecutor’s sole discretion. Genesee Prosecutor v Genesee Circuit Judge, 386 Mich 672, 684-685; 194 NW2d 693 (1972). Further, a magistrate, who loses jurisdiction upon binding defendant over for trial, cannot alone bind a triаl judge who acts pursuant to the mandatory presentence report. Thus, the nature and extent of the prosecutor’s involvement is crucial.

Defendant here, however, waived his chance to have a statement by the prosecutor put on the record. After the above discussion, the trial court ‍​‌‌​‌‌​​​​​‌​​‌‌‌​‌​‌‌​‌​‌‌​‌‌‌​‌‌​‌‌​‌​‌‌‌​‌​‌​‍recessed the proceedings in an attempt to obtain the рresence of the assistant prosecuting attorney who had allegedly made the promise. 1 Rather than *486 waiting for him, defendant returned from the recess and chose to accept the sentеnce rather than withdraw his plea. We read this action as an express choice to waive any attempt to prove a bargain and to accept one of the alternate actions offered by the trial court.

We take this opportunity to commend the trial judge for the direct and even-handed way in which he handled this difficult situation. He clearly expressеd the reasons for not giving probation and the choices open to defendant. Based on the presentence report, the trial court’s refusal to grant probation was not unrеasonable. The choices given to defendant were those provided by law. Defendant was, thus, adequately informed of his alternatives and knowledgeably selected one.

Defendant’s second claim of error is that the trial court failed to comply with GCR 1963, 785.7(3)(d) by not stating his reasons for accepting the plea of nolo contendere. Rule 785.7(3)(d) provides in relevant pаrt:

"the court may not accept a plea of nolo contendere * * * unless the judge first states reasons for believing that the interests of the defendant and the proper administration of justice do not require interrogation of the defendant regarding his participation in the crime.”

In the instant case, the only indication of an attempt to state such reasons was а colloquy between the court and prosecutor:

*487 "The Court: All right. And I take it due to the fact situation involved here there is some good reason why the Defendant should be allowed to plead nоlo contendere as opposed to a plea of guilty, is that correct?
"Mr. Foley: Yes, there is, your Honor. Would the Court want me to make a statement on the record?
"The Court: No, as long as thеre is some good reason ‍​‌‌​‌‌​​​​​‌​​‌‌‌​‌​‌‌​‌​‌‌​‌‌‌​‌‌​‌‌​‌​‌‌‌​‌​‌​‍that the People are aware of.”

This is not sufficient. We accordingly remand this case to the trial court for the judge to supplement the record by stating his reasons for accepting the plea of nolo contendere. Guilty Plea Cases, 395 Mich 96, 134; 235 NW2d 132 (1975). The trial court shall state its reasons for accepting the plea within 30 days of the release of this oрinion and shall advise this Court by opinion of those reasons. Pursuant to GCR 1963, 820.1(5), we hold this case in abeyance pending the further actions of the trial court required herein.

D. E. Holbrook, Jr., P. J., concurs in result only.

Notes

1

"[Defense Counsel]: My client tells me at this time, your Honor, that he would like to have the preliminary Examination, start from the beginning and work through.

"The Court: Well, now, who said that they would be agreeable to having him go back for a preliminary Exam?
"Mr. Rubach: That would be Mr. Healy.
"The Court: Well —
"Mr. Rubach: See, we waivеd it on the bais of certain representations that were made to us, that we, it appeared as though with the *486 cooperation of the defendant, your Honor, that it would work out satisfactory for him, so we waived.
"The Court: All right. Well, we will get Mr. Healy down here then. I want him to put that on the record because that is against the Court Rules.
"Mr. Rubach: I understand.
"The Court: If he wants to make that indication, I will ‍​‌‌​‌‌​​​​​‌​​‌‌‌​‌​‌‌​‌​‌‌​‌‌‌​‌‌​‌‌​‌​‌‌‌​‌​‌​‍refer it back for Examination also.”