*1 72 v CLARK PEOPLE op Agreements op Guilty —Court 1. Criminal Law —Plea —Plea Rules. record, a plea agreement required on the so that to be stated A determining whether all the reviewing aided (GCR 1963, [b]). satisfied 785.7[2] have been attendant op Guilty Apрeal and Error —Affidavits 2. — Law —Plea Criminal Agreements. —Plea plea guilty remanded or reversed should not be A defendant’s of alleging by filed of affidavit basis a plea agree- promise in a kept made of part of thе record. ment which is not a op Agreements Guilty 3. —Court Law —Plea —Plea Criminal Departure Rules. from Court Rules — particulars departure of rule which A from the court may may not plea agreement the record or tо be stated on depend- proceedings require for additional reversal or remand noncompliance; place ing a remand to the nature of the necessary where the on the record is law еnforce- he did not defendant admits that (GCR 1963, promised allegedly to do officials as he had [b]). 785.7[2] Anderson, J. D. T. Concurrence 4. Criminal Law —Plea of State- of —Denial In-Court ments. estopped prosecution parties to a criminal should testimony denying by made the truth of statements affidavit [1-4, [5] Withdrawal 21 Am Jur after 7] conviction. 146 ALR 21 Am Jur 2d, References Criminal 2d, Criminal guilty and Law 503-506. 1269. §§ Points Law substitution §§ in Headnotes 493-495. of of not v Clark express inducing purpose accept in cоurt for the the court to F. Dissent M. *2 Guilty Judge’s
5. Criminal of —Withdrawal of Law —Plea Plea — Liberality. Discretion —Great right guilty plea, A defendant to withdraw a has no absolute judge’s great a trial should be exercised with discretion liberal- ity seeking plea prior where a to withdraw a defendant to sentencing request granted and the to withdraw should be grounds unless the therefor are frivolous. Appeal Guilty 6. of Criminal Law — and Error —Plea —Remand. Appeals The Court of should remand case for an hearing plea record where the indicates a defendant’s of guilty may prom- be inürm because of unfulfilled or unstated ises to the defendant. Agreements 7. Criminal of Law —Plea —Plea —Record. рrecise plea agreement The terms of must be discovered at a hearing agreement though to set the on the record even the cooperated not have with law enforcement contemрlated by agreement. ofBcialsas Oakland, Kuhn, from D. Appeal Richard J. Sub- (Docket 8, 1976, June Lansing. mitted Nos. 26553.) 25343, 25344, 25345, Decided December 1976. Leave appeal applied to for. convicted,
Juanrico on his of charges guilty, breaking four entering and occupied dwelling with larceny. intent commit appeals Defendant granted. leave Affirmed. J. Kelley, Frank Robert A. General, Attorney Derengoski, Patterson, L. General, Brooks Solicitor Williams, C Attorney, Robert Prosecuting Chief Counsel, L. McCarthy, James Appellate and Assist- Counsel, ant Appellate people. for the C, & Keller Avadenka P. for ap- defendant on peal. Cavanagh and J., M. F. Bashara, P.
Before: Anderson,* T. JJ. D. Judge facts
Bashara, adopt P. J. Cavanagh’s dissenting opinion. his four guilty seeks
The defendant transcripts do not He contends pleas. portion That agreement. the entire disclose pur- the record is a ported agreement In investigations. narcotics FBI in certain alleged it is the defendant’s
return for
urge
agreed
the FBI
sentence.
more lenient
recommend a
785.7(2)(b)
purpose
the record.
agreement
is to aid
on the record
placing
all
determining whether
reviewing
*3
have been satisfied.
attendant
Hubbard,
542, 547;
"The Court: Well, the time Clark: "Defendant agenсy agreement the law bargaining it was do so failure to co-operate with them and that I was * assignment. sitting Appeals by judge, on the Court of Circuit op I wish withdraw this time I feel that at my behalf. stand trial. plea and four motions for аll what reason?
"The Court: For jury. I want a I jury. I want "Defendant Clark: plea. my withdraw improper about
"The Court: What gave you to this Court? Mainly reasons. Well, or three two Clark: "Defendant any plea bargaining, it wasn’t I felt that my
the fact that you behalf, know, know. you you mean? do what Specifically "The Court: me, my I want For Clark: "Defendant plea of to not reason. asking for what you "The Court: I am Well, at the time the reasons were "Defendant Clark: co-оperate with them F.B.I. to approached by the I was get they would be stipulation and bond, plead and to get out on me my bond reduced know, so, your to do charge, failure [sic] but supposed to They were nothing accomplished by that. co-oper- if I would have everything taken care have so, I like to ated, I feel that would do failed to supplied.) plea. "(Emphasis my withdraw counsel conceded colloquy defense Following not breached government had agreement. plea bar- anything in the you Court: Do know "The
gaining plea that were violated? as to this [sic] counsel) (Defense my Nothing comes to "Mr. Brown: mind.” placed on the plea
A remand to have unneces- of this Court record for the benefit *4 re- true assertions Accepting as sary. agree- missing portions garding the admitted ment, unequivocally plea ágreement. that he the record breached to obligation urge FBI’s The 72 Mich 756 Court arose, never be- sentence lighter recommend the condition satisfied never cause law enforce- with cooperating precedent agency. his brief with a accompanied The has with certain alleging affidavit sworn insufficient remand is FBI. A affidavit People Rodriguez, v 61 reverse a or applica- 293 42; 232 NW2d App appropriate particularly tion of this rule seеms clear admis- situation, of defendant’s light in did not sion on the record FBI. Christian, 68 Mich The cases of Rodriguez, (1976), 480; 242 813 In both of those supra, distinguishable. easily are the defend- possibility there existed cases promises. unfulfilled to some were entitled ants not the situation here. That is merely place remand agree do I that a Nor is at all required the record agreement on Strong, People v 59 Mich Although times. (1975), 159, supports such 162; 229 NW2d Strong suspect today. validity it’s proposition, Shekoski, People v light was decided required which 224 NW2d In the court rule. compliance with strict 113; 235 NW2d Pleas modified She- Supreme Court Michigan depar- particular koski. It stated that whether required or justified 785.7 turе from de- proceedings additional or remand for reversal noncompliance. the nature of pended reason for apparent case the In the instant on the record entire placing may This thе defendant’s cover. protect towas omitting a reason for appropriate not be *5 People v Clark by F. J. Dissent M. Cavanagh, In portion plea agreement. event, any the in view of the admission of non-сoopera- tion, it is to remand to have unnecessary the plea agreement placed on the record. remaining issue raised by Moore,
without merit.
See
3-4;
Affirmed.
D. Anderson, T. (concurring). would not set J. I aside the plea nor remаnd an for hearing. Judge Bashara, concur with but would go defendant, further and estop the attorney and the prosecutor denying by affidavit or testimony the truth statements made in express for the purpose of inducing the cоurt to accept plea. permit To this is to use the solemn requirements of the plea processes as handcrafted by Supreme perpetrate Court upon fraud the court. It denigrates judicial prоcess. amplification Further of this writer’s rea- sons appear in the majority opinion — — (1976). Serr,
M. F. J. (dissenting). Defendant Cavanagh, ap- peals leave by granted from the refusal of the trial judge grant defendant’s motion to withdrаw his guilty pleas charges to four of breaking and enter- ing occupied dwelling intent to commit larceny. 750.110; MCLA MSA 28.305. prior Just sentencing, he aside, asked that set be request was denied and sentenced to concurrent terms of to 15 years in prison.
At each proceeding, defendant was advised of all his rights pursuant 785.7(1), to GCR and a factual basis was elicited each crime. At each proceeding, all parties acknowledged that 72 P.M. Dissent two bonds would were terms of the bonds, a third bond would personal be reduced remaining bond $1,000 surety, cash or inquiries surety. Upon cash $500 each time judge, trial except had been made that no other *6 on the record. those stated
However, sentencing рroceeding, defend- to withdraw his he wished ant stated that that had alleged trial. He there jury and wanted a the FBI to the that with effect been get them and they he would judge of his his and advise bond reduced suggest statements defendаnt’s cooperation. While part have fulfilled his may not prosecutor himself newly bargain, disclosed agree- to the acknowledged there was more that He admitted that the reduction bond. than if understanding there sоme on behalf the FBI "would check helped police, * * * However, not know ”. he did what of him judge The trial denied happened. had motion.
While,
right
there is no absolute
to withdraw
plea,
judge’s
the trial
discretion "should
”
* * * when the
liberality
with great
exercised
prior
such
seeking
sentencing,
granted
and should be
unless
Zaleski,
v
People
are frivolous.
grounds
therefor
(1965).
71, 79; 133
While a
375 Mich
will not cause
affidavit on defendant’s behalf
hearing or
evidentiary
this Cоurt to remand for an
Rodriguez,
v
guilty plea, People
61 Mich
reverse
42, 47-49;
In this
only
defendant has not
submitted a
(to
detailed affidavit
the effect that
the FBI sought
his
in apprehending
drug
some
deal-
ers, promised to aid
sentencing,
and received his
cooperation),
brought
сontentions
to the
attention of the sentencing judge.
prosecutor
himself
FBI
acknowledged that
was involved.
The record
may very
indicates
there
well
have
785.7(2),
been a
violation
which
bargain
agreements
all рlea
acknowledged
on the record and
by all the
parties.
for a hearing
would remand
in order to
set the whole
the record. Plea
96, 127;