399 N.W.2d 66 | Mich. Ct. App. | 1986
PEOPLE
v.
OLSEN
Michigan Court of Appeals.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Joseph T. Barberi, Prosecuting Attorney, and Jann Ryan Baugh, Assistant Attorney General, for the people.
*296 State Appellate Defender (by Gail Rodwan), for defendant on appeal.
Before: MacKENZIE, P.J., and D.F. WALSH and SHEPHERD, JJ.
PER CURIAM.
On September 30, 1983, defendant pled guilty to attempted forgery, MCL 750.248; MSA 28.445, MCL 750.92; MSA 28.287, and larceny from a building, MCL 750.360; MSA 28.592. In exchange the prosecutor agreed to dismiss one additional charge, as well as an habitual offender information. The prosecutor also agreed not to proceed with certain future cases in which defendant might admit involvement. Defendant failed to appear for his scheduled sentencing.
On November 30, 1984, pursuant to a negotiated plea, defendant pled guilty to absconding a bond, MCL 750.199a; MSA 28.396(1), as follows:
[The Prosecutor]: Yes, your Honor, the plea agreement is as follows: ... if the defendant pleads guilty to [absconding] and continues his plea of guilty to [attempted forgery and larceny from a building], the People will dismiss files 84-4047, 84-4049, and 84-4050. Number one (1). Number two (2), we will not proceed against the defendant and an habitual offender. Number three (3) we will recommend concurrent sentences. Number four (4) the parties will agree that the defendant will be sentenced, assuming that's alright with the Department of Corrections, for all three (3) files on December 28th. And the final part of the plea agreement is, if by December 28th, the date of sentence, he has not made full restitution as determined by the Probation Department, before the sentencing, for [the] files with which he is charged [i.e., the 3 dismissed as part of the absconding case, the attempted forgery and larceny cases, and the case dismissed as part of the plea taken on September 30, 1983], then there is no plea agreement *297 and the plea agreement is set aside and we can proceed against the defendant as if there were no plea agreement. There is no sentence recommendation, other than the sentences be concurrent and no consecutive.
The Court: Alright, is that a complete and accurate statement of the plea agreement, [defense counsel]?
[Defense Counsel]: Yes, it is, your Honor.
The Court: And, Mr. Olsen, did you understand what ... the prosecutor, just stated?
Defendant: Yes, sir, I did.
The Court: Do you understand it completely? Do you understand that it involves dismissal of three (3) files?
Defendant: Yes, sir.
The Court: And it means that the prosecutor will not proceed against you as being a habitual offender, he's recommending concurrent sentences on the two (2) charges to which you would be sentenced in September of `83, and this matter, the obsconding [sic] charge... he's stating that if you do not make full restitution in all these six (6) files, by the time of sentences in the plea agreement is null and void. Do you understand that, Mr. Olsen?
Defendant: Yes.
The Court: Do you agree to that?
Defendant: Yes.
At sentencing, the prosecutor noted that defendant had not made restitution. The prosecutor did not move to reinstate the files he had agreed to dismiss, but did recommend the imposition of consecutive sentences. Defendant's offer of partial restitution was rejected. The court imposed sentences of from forty to sixty months and from twenty-four to forty-eight months imprisonment for the attempted forgery and larceny convictions, respectively to be served consecutively to a thirty-two to forty-eight month sentence for absconding. *298 Defendant appeals as of right and requests this Court to amend his sentence to impose concurrent sentences or, alternatively, to remand to the sentencing court for such an amendment. We decline to do either and affirm.
Defendant contends that he is entitled to specific performance of the prosecutor's agreement to recommend concurrent sentences because the restitution requirement of his plea bargain was illegal and unenforceable. The fallacy in defendant's argument is that the prosecutor did not order defendant to make restitution as part of the plea bargain. Payment of restitution was simply an agreed-upon condition precedent to the prosecutor's obligation to perform as promised. When defendant failed to meet the condition, the prosecutor's obligation to recommend concurrent sentencing ceased. At the time defendant entered into the plea bargain defendant knew better than anyone whether he had the ability to raise the money, and the risk he ran if he did not. Defendant will not now be heard to say that he should have made a better deal.
Since defendant has failed to perform his undertakings under the plea agreement, he has no right to specific performance of the prosecutor's agreement to recommend concurrent sentencing.
Affirmed.
SHEPHERD, J. (concurring).
At the time of the plea it was made clear on the record at least twice that if defendant did not make full restitution by the time of sentencing the plea agreement would be null and void. Defendant did not make restitution and had defendant moved to vacate the plea I believe the trial judge would have been obligated to grant the motion and set all cases against defendant for trial. The prosecutor also would *299 have been free to prosecute those future cases in which the defendant might have been involved. The defendant chose not to move to vacate the plea undoubtedly because he did not believe it to be in his interest to go to trial on all outstanding and future charges. Instead defendant chose to ratify the plea but now wants to take advantage of a portion of the plea agreement which he claims to be invalid.
Defendant is correct when he says that restitution can only be ordered as part of a sentence of probation and the court may not require a probationer to pay restitution unless the probationer is or will be able to make payment during the term of probation. MCL 771.3(5), (6); MSA 28.1133(5), (6). People v Blaney, 139 Mich App 694; 363 NW2d 13 (1984). However this is not a case where restitution was ordered as part of a sentence. This was a plea bargain where the defendant freely undertook to make restitution as part of the agreement.
Since defendant continues to maintain in the brief filed in this case on appeal that he does not wish to have the plea of guilty vacated, I agree with the majority that at the sentencing he was subject to the maximum penalty allowed by law.
