PEOPLE v CLARK
Docket Nos. 25343, 25344, 25345, 26553
Michigan Court of Appeals
December 10, 1976
72 Mich App 752
Leave to appeal applied for. Appeal from Oakland, Richard D. Kuhn, J. Submitted June 8, 1976, at Lansing.
1. CRIMINAL LAW — PLEA OF GUILTY — PLEA AGREEMENTS — COURT RULES.
A plea agreement is required to be stated on the record, so that a reviewing court may be aided in determining whеther all the attendant promises have been satisfied (
2. CRIMINAL LAW — PLEA OF GUILTY — APPEAL AND ERROR — AFFIDAVITS — PLEA AGREEMENTS.
A defendant‘s plea of guilty should not be remanded or reversed on the basis of a single affidavit filed by the defendant alleging that he kept his promise of coоperation made in a plea agreement which is not a part of the record.
3. CRIMINAL LAW — PLEA OF GUILTY — PLEA AGREEMENTS — COURT RULES — DEPARTURE FROM COURT RULES.
A departure from the court rule which requires the particulars of a plea agreement to be stated on the reсord may or may not require reversal or remand for additional proceedings depending on the nature of the noncompliance; a remand to place a plea agreement on the reсord is not necessary where the defendant admits that he did not cooperate with law enforcement officials as he had allegedly promised to do (
CONCURRENCE BY D. T. ANDERSON, J.
4. CRIMINAL LAW — PLEA OF GUILTY — DENIAL OF IN-COURT STATEMENTS.
The parties to a criminal prosecution should be estopped from denying by affidavit or testimony the truth of statements made
DISSENT BY M. F. CAVANAGH, J.
5. CRIMINAL LAW — PLEA OF GUILTY — WITHDRAWAL OF PLEA — JUDGE‘S DISCRETION — GREAT LIBERALITY.
A defendant has no absolute right to withdraw a guilty рlea, but a trial judge‘s discretion should be exercised with great liberality where a defendant is seeking to withdraw a plea prior to sentencing and the request to withdraw should be granted unless the grounds therefor are frivolous.
6. CRIMINAL LAW — APPEAL AND ERROR — PLEA OF GUILTY — REMAND.
The Court of Appeals should remand a case for an evidentiary hearing where the record indicates that a defendant‘s plea of guilty may be infirm because of unfulfilled or unstated promises to the defendant.
7. CRIMINAL LAW — PLEA OF GUILTY — PLEA AGREEMENTS — RECORD.
The precise terms of a plea agreement must be discovered at a hearing to set the agreement on the record even though the defendant may not have cooperated with law enforсement officials as contemplated by the agreement.
Juanrico Clark was convicted, on his pleas of guilty, of four charges of breaking and entering an occupied dwelling with intent to commit larceny. Defеndant appeals by leave granted. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief Appellate Counsel, and James L. McCarthy, Assistant Appellate Counsel, for the people.
Keller & Avadenka P. C., for defendant on appeal.
REFERENCES FOR POINTS IN HEADNOTES
[1-4, 6, 7] 21 Am Jur 2d, Criminal Law §§ 485, 493-495.
[5] 21 Am Jur 2d, Criminal Law §§ 503-506.
Withdrawal of plea of guilty and substitution of plea of not guilty after conviction. 146 ALR 1269.
BASHARA, P. J. I adopt the facts from Judge CAVANAGH‘S dissenting opinion.
The defendant seeks to withdraw his four guilty pleas. He contends that the plea transcripts do not disclose the entire plea agreement. That portion of the plea agreement not on the record is a purported agreement by the defendant to cooperate with the FBI in certain narcotics investigations. In return for the defendant‘s cooperation it is alleged that the FBI agreed to urge the prosecutor to recommend a more lenient sentence.
In the case at bar the record reveals that the defendant did not comply with the purported plea agreement. His motion to withdraw his guilty pleas was an attempt to extricate himself from an alleged plea bargain that he breached. This is readily apparent from the colloquy between the court and the defendant at the sentencing proceedings:
”The Court: Mr. Clark.
”Defendant Clark: Well, at the time of the plea bargaining it was an agreement with the law agency that I was to co-operate with them and failure to do so
on my behalf. I feel that at this time I wish to withdraw all four motions for the plea and stаnd trial. ”The Court: For what reason?
”Defendant Clark: I want a jury. I want a jury. I withdraw my plea.
”The Court: What was improper about the pleas that you gave to this Court?
”Defendant Clark: Well, two or three reasons. Mainly the fact that I felt that it wasn‘t any plea bargaining, you know, on my behalf, you know.
”The Court: Specifically what do you mean?
”Defendant Clark: For me, I want to withdraw my plea of guilty to not guilty.
”The Court: I am asking you for what reason.
”Defendant Clark: Well, the reasons were at the timе I was approached by the F.B.I. to co-operate with them and that the stipulation would be that they would get my bond reduced and get me out on bond, and to plead to the charge, but failure to do so, your [sic] know, nothing accomplished by that. They were supposed to have everything taken care of if I would have co-operated, but I failed to do so, I feel that I would like to withdraw my plea.” (Emphasis supplied.)
Following this colloquy defеnse counsel conceded that the government had not breached the plea agreement.
”The Court: Do you know anything in the plea bargaining as to this plea that were [sic] violated?
”Mr. Brown: (Defense counsel) Nothing comes to my mind.”
A remand to have the plea agreement placed on the record for the benefit of this Court is unnecessary. Accepting as true defendant‘s assertions regarding the missing portions of the plea agreement, the defendant unequivocally admitted on the record that he breached the plea agreement. The FBI‘s obligation to urge the prosecutor to
The defendant has accompanied his brief with a sworn affidavit alleging certain cooperation with the FBI. A single affidavit is insufficient to remand or reverse a plea of guilty. People v Rodriguez, 61 Mich App 42; 232 NW2d 293 (1975). The application of this rule seems particularly appropriate to this situation, in light of defendant‘s clear admission on the record that he did not cooperate with the FBI.
The cases of People v Christian, 68 Mich App 480; 242 NW2d 813 (1976), and People v Rodriguez, supra, are easily distinguishable. In both of those cases there existed the possibility that the defendants were entitled to some unfulfilled promises. That is not the situation here.
Nor do I agrеe that a remand merely to place the plea agreement on the record is required at all times. Although People v Strong, 59 Mich App 159, 162; 229 NW2d 354 (1975), supports such a proposition, it‘s validity is suspect today. Strong was decided in light of People v Shekoski, 393 Mich 134; 224 NW2d 656 (1974), which required strict compliance with the court rule. In Guilty Plea Cases, 395 Mich 96, 113; 235 NW2d 132 (1975), the Michigan Supreme Court modified Shekoski. It stated that whether a particular departure from
In the instant case the apparent reason for not placing the entire plea agreement on the record was to protect the defendant‘s cover. This may or
The remaining issue raised by the defendant is without merit. See People v Moore, 60 Mich App 1, 3-4; 230 NW2d 281 (1975).
Affirmed.
D. T. ANDERSON, J. (concurring). I would not set aside the plea nor rеmand for an evidentiary hearing. I concur with Judge BASHARA, but would go further and estop the defendant, his attorney and the prosecutor from denying by affidavit or testimony the truth of the statements made in court for the express purpоse of inducing the court to accept the plea. To permit this is to use the solemn requirements of the plea processes as handcrafted by the Supreme Court to perpetrate a fraud upоn the court. It denigrates the judicial process. Further amplification of this writer‘s reasons appear in the majority opinion in People v Serr, 73 Mich App 19; — NW2d — (1976).
M. F. CAVANAGH, J. (dissenting). Defendant appeals by leave granted from the refusal of the trial judge to grаnt defendant‘s motion to withdraw his guilty pleas to four charges of breaking and entering an occupied dwelling with intent to commit a larceny.
At each proceeding, defendant was advised of all his rights pursuant to
However, at the sentencing proceeding, defendant stated that he wished to withdraw his pleas and wanted a jury trial. He alleged that there had been an agreement with the FBI to the effect that he would cooperate with them and they would get his bond reduced аnd advise the judge of his cooperation. While defendant‘s statements suggest that he may not have fulfilled his part of this newly disclosed bargain, the prosecutor himself acknowledged that there was more to the agrеement than the reduction of bond. He admitted that there was some understanding that if defendant helped the police, the FBI “would check on behalf of him * * * “. However, he did not know what had happened. The trial judge dеnied defendant‘s motion.
While, there is no absolute right to withdraw a guilty plea, the trial judge‘s discretion “should be exercised with great liberality * * * ” when the defendant is seeking to withdraw such a plea prior to sentencing, and should be granted unless the grounds therefor are frivolous. People v Zaleski, 375 Mich 71, 79; 133 NW2d 175 (1965). While a single affidavit on defendant‘s behalf will not cause this Court to remand for an evidentiary hearing or reverse a guilty plea, People v Rodriguez, 61 Mich App 42, 47-49; 232 NW2d 293 (1975), where the record indicates that the рlea may be infirm because of unfulfilled or unstated promises to defendant, we should remand for an evidentiary hearing.
In this case, defendant has not only submitted a detailed affidavit (to the effect that the FBI sought his coоperation in apprehending some drug dealers, promised to aid in sentencing, and received his cooperation), but brought his contentions to the attention of the sentencing judge. The prosecutor himself аcknowledged that the FBI was involved. The record indicates that there may very well have been a violation of
* Circuit judge, sitting on the Court of Appeals by assignment.