Defendant appeals from two plea-based convictions, one from Kalamazoo County for breaking and entering, MCLA 750.110; MSA 28.305, and the other from Calhoun County for
On May 28, 1975, defendant pled guilty as charged to breaking and entering in the Kalamazoo County Circuit Court. On June 30, 1975, the court sentenced defendant to 6 to 15 years imprisonment. On the same day, after sentencing in Kalamazoo County, defendant pled guilty to larceny over $100 in the Calhoun County Circuit Court. The original charge against defendant in Calhoun County was larceny from a person, MCLA 750.357; MSA 28.589. On August 28, 1975, the Calhoun County Circuit Court sentenced defendant to a concurrent term of 3 to 5 years.
Defendant claims that his plea to breaking and entering in Kalamazoo County was induced by a promise that the charge against him in Calhoun County would be dropped. This contention formed the basis of a motion to withdraw his plea in Kalamazoo County, filed after sentencing on July 29, 1975. The Kalamazoo County Circuit Court entered an order denying the motion on September 2, 1975. When representations that pending charges in another county will be dismissed lead a defendant to plead guilty and the charges are not dismissed, a withdrawal of the plea should be permitted.
People v Brooks,
In
Brooks, supra,
the Supreme Court had before it, on the record made at the plea taking, the representations made about the disposition of charges in another county. On the record made when defendant Lawson pled to the breaking and entering charge in the Kalamazoo County Circuit Court, no mention of charges pending in another
Defendant must be allowed to withdraw his plea of guilty to larceny over $100 entered in the Calhoun County Circuit Court. At the plea taking in Calhoun County, defendant’s counsel informed the court that the plea agreement, in addition to allowing a plea to larceny over $100 in exchange for the dismissal of the charge of larceny from a person, included the prosecutor’s promise not to request consecutive sentences. The prosecutor and defendant confirmed the court’s restatement of the agreement. The possibility that defendant could be subject to consecutive terms for the crimes in Kalamazoo County and Calhoun County did not exist. The purse snatching in Calhoun County happened on October 14, 1974, and the breaking
The record thus indicates that defendant pled with an exaggerated belief in the benefits of his plea and that nothing was done by the court, the prosecutor or his counsel to correct his misapprehension. In Hammond v United States, 528 F2d 15 (CA 4, 1975), the Court considered an analogous situation. Hammond’s attorney had erroneously advised him of the maximum possible prison term should Hammond go to trial on all the charges facing him and had recommended that he accept a plea bargain. The Fourth Circuit concluded:
"[I]n order to plead voluntarily, a defendant must know the direct consequences of his plea, including 'the actual value of any commitments made to him.’ Where, as here, counsel’s alleged advice, corroborated by the information supplied by the court, grossly exaggerated the benefit to be derived from the pleas of guilty, it would follow that the pleas were not voluntary.” 528 F2d, at 19.
See also, Cooks v United States, 461 F2d 530 (CA 5, 1972).
Since defendant surrendered his right to trial in apparent misapprehension of the value of commitments made to him, he should be allowed to withdraw his plea.
Defendant’s conviction for breaking and entering is affirmed. His case from Calhoun County is remanded to allow him to withdraw his plea of guilty.