People v. HeilerPeople v. Heiler
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- Before:
- Danhof
The prosecutor appeals, by leave granted, from the May 4, 1977, order of the circuit court directing reinstatement of a plea bargain. Because this Court granted the prosecution’s motion for stay of proceedings in its order granting leave to appeal defendant has not pled guilty pursuant to the reinstated bargain, but he stands ready to do so.
Defendant was charged, in a two-count information, with armed robbery,
On April 20, 1977, defendant agreed to the proposed plea bargain after discussing it with defense counsel, who thereupon communicated defendant’s acceptance of the plea bargain to the assistant prosecutor, stating that defendant would tender his plea after defense counsel had had an opportunity to confer with defendant’s parents. It was agreed that defendant would plead guilty on Friday, April 22, 1977. Before defense counsel had a chance to communicate with defendant’s parents, however, on April 21, the prosecutor’s office notified defense counsel that the plea offer was being withdrawn because the bargain was contrary to the prosecutor’s charging policy.
The parties stipulated at the hearing on the motion to reinstate the negotiated plea that defendant had made no statement to the police in reliance upon the plea agreement prior to its withdrawal by the prosecutor. Although the trial
To assess the propriety of the trial judge’s action, account must be taken of three fundamental precepts. First, as the United States Supreme Court recognized in Santobello v New York, 404 US 257; 92 S Ct 495; 30 L Ed 2d 427 (1971), “the disposition of criminal charges by agreement between the prosecutor and the accused, sometimes loosely called ‘plea bargaining’ is an essential component of the administration of justice,” id. at 260; 92 S Ct at 498; 30 L Ed 2d at 432, and, “when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled”. Id. at 262; 92 S Ct at 499; 30 L Ed 2d at 433. Secondly, “[t]he standards of commerce do not govern, and should not govern, the administration of criminal justice”, Reagan, supra, at 314, and once the prosecutor has pledged the public faith the court may hold him even to an unwise bargain. Id. 318. The judge’s power to so bind the prosecutor is circumscribed, however:
“A circuit judge does not enjoy supervisory power over a prosecuting attorney. He may reverse a magistrate’s decision only for abuse of discretion. He may not properly substitute his judgment for that of the magis
This limitation upon the trial judge’s power to control the exercise of prosecutorial discretion is founded upon the doctrine of separation of powers. Genesee Prosecutor v Genesee Circuit Judge, 386 Mich 672, 684; 194 NW2d 693 (1972) (hereinafter Genesee I), Genesee II, supra, at 121, People v Stewart, 52 Mich App 477, 483 n 7; 217 NW2d 894 (1974), lv den, 396 Mich 831 (1976). “Even, as in Michigan, when the judge may veto 3 the prosecutor’s decision to nolle prosequi, he lacks the power to dismiss on his own motion over prosecutorial objection.” People v Stewart, supra, at 483. The court’s statutory power to veto the prosecutor’s decision to discontinue a criminal proceeding,
“was not meant to significantly impair the common-law rule that only the prosecutor could exercise the power to enter a nolle prosequi. Rather, the statute was enacted primarily to protect defendants by not allowing prosecutors to exercise this power unless the reasons therefor were stated on the record and leave of the court was obtained and recorded. While the statute, by requiring the trial court’s permission, does effect some infringement on the prosecutor’s exclusive common-law power, the initial decision as to whether or not to enter a nolle prosequi nevertheless remains an executive
Whether the trial judge’s action in reinstating the plea bargain in this case is viewed as analogous to an amendment of the information to include a lesser offense not charged, a practice disapproved in Genesee Prosecutor I, supra, or as a judicial dismissal not based on a lack of evidence, as in Stewart, supra, and Nelson, supra, he acted improperly unless the prosecutor can be said to have abused his discretion by withdrawing from the plea agreement. 4 Although People v Reagan, supra, upon which the trial judge relied in concluding that “when a bargain is struck, it should be in good faith and upheld on both sides”, does refer to a “pledge of public faith”, a breach of which might constitute an abuse of discretion, it is clear from a close reading of the Reagan opinion that the bargain there was not binding until after the trial court approved the order of nolle prosequi:
“We conclude that the prosecutor’s office, in entering into the agreement with defendant, gave a pledge of public faith which became binding when the nolle prosequi order was approved by the trial judge.” Reagan, supra, at 309 (emphasis added).
“In Michigan, a trial court approval is the sine qua non of the decision to nolle prosequi.” Id. 317.
“Under the facts of this case, however, entry of the order of nolle prosequi was by its presence the final act of fruition of a binding agreement.” Id. 318 (emphasis added).
“In our view, a pledge of public faith in this instance gave force to an unwise agreement which became binding upon trial court approval of nolle prosequi.” Id. (emphasis added).
Accord, People v Shipp, 68 Mich App 452, 457; 243 NW2d 18 (1976) (“defendant’s performance of his part of the agreement made it binding on the prosecutor’s office.”).
Thus, even under the
Reagan
rule, his pledge of public faith nothwithstanding, the prosecutor is not bound by his unwise agreement until
after
trial court approval thereof coincident to entry of an order bringing the agreement to “fruition”. Similarly, in
People v Ciatti,
17 Mich App 4, 7-8; 168 NW2d 902 (1969), this Court noted that “Since defendant’s counsel should know that a prosecutor has no right to enter a
nolle prosequi
of a case without leave of the court (citation omitted),
defendant‘s attorney could not rely on any agreement with the prosecutor as a reason for being unprepared”.
(Emphasis added.) By the same token, defense counsel in this case had no more right to rely on the plea agreement prior to its
Balanced against the non-binding, but nevertheless broken, pledge of public faith are two additional considerations that we believe lead to a different result here than in Reagan. First, defense counsel stipulated that defendant had performed no act in reliance upon the agreement that might prejudice his defense. The loss of the one-day period that the agreement was purportedly in effect is not alleged to have prejudiced defendant in the preparation of his defense, nor did defendant make any inculpatory statements that might be used against him to the police in reliance upon and compliance with the terms of the agreement. In contrast, in Reagan defendant had submitted to a polygraph test, a potentially prejudicial factor that the Court took into account in arriving at its decision. Reagan, supra, at 314 n 10. In the absence of any showing whatsoever of prejudice to defendant stemming from the prosecutor’s breach of the tentative agreement, a second factor tips the balance:
“For the judiciary to claim power to control the institution and conduct of prosecutions would be an intrusion on the power of the executive branch of government and a violation of the constitutional separation of powers. Const 1963, art 3, § 2. It also violates our fundamental sense of fair play.” Genesee I, supra, at 684 (emphasis added).
Although we do not condone the conduct of the prosecutor’s office in this case, neither do we think it proper, in the absence of a finding of abuse of prosecutorial discretion and resultant prejudice to
The ruling of the trial judge granting defendant’s motion to reinstate the plea bargain is reversed and this case is remanded for further proceedings under the unamended information consistent with this opinion.
Notes
The pretrial summary directed counsel to “discuss the possibility of a negotiated plea”, and to complete all plea negotiations on or before May 6, 1977.
The trial judge thought that the question of whether there was prejudice to defendant was “awfully close”, but stated that it would not make any difference to his decision.
Since defendant has not yet tendered his guilty plea or performed any part of the plea agreement, he does not seek the remedy of specific enforcement of the agreement, as in Santobello, supra, People v Shipp, 68 Mich App 452, 456-457; 243 NW2d 18 (1976), and People v Eck, 39 Mich App 176; 197 NW2d 289 (1972). In each of those cases specific performance, or the alternate remedy of plea withdrawal, was available only after the plea had been accepted, defendant had acted to his prejudice in reliance upon the agreement, and the prosecutor had thereafter refused to perform its part of the bargain; Santobello and its progeny do not involve court compelled performance of a tentative agreement from which the prosecutor has withdrawn prior to judicial approval.