*1 v OTT PEOPLE 1, 1984, July Lansing. May Submitted No. 70019. Docket Decided 2, 1985. Jr., Ott, charged with Defendant, with assault R. was Alexander bargain plea larceny $100. A murder and to commit intent which between defendant was reached charge assault plead of felonious to a would offered, larceny charge. was When that accept assault because to felonious to refused court case, that, it would of the under the circumstances felt court agreement reached was interest. A second not be in plead guilty to a of assault whereby would great bodily than murder and to harm less intent to do accepted was and defendant larceny count. This Freeman, Court, convicted, J. Defen- Donald R. Genesee Circuit refusing alleging appealed, the trial court erred that dant seeking have his proposed plea accept the first great bodily harm less to do with intent conviction of assault entry of a the case remanded set aside and than murder assault. Held: of felonious conviction guilty plea. free to refuse to trial court was guilty plea right to have his no absolute The defendant had charging interfere with the accepted, trial court did not and the power of the Affirmed. Borman, J., trial hold that dissented. She would
[1] [2,
[3-5]
See the annotations
Judge’s participation
Propriety
Right
4]
Am Jur
Plea;
accused’s
plea. 16 ALR4th 1089.
or refusal to
Am Jur
Am Jur
Nolo Contendere
2d,
2d,
2d, Prosecuting Attorneys
guilty plea involuntary. ALR4th 689.
sentencing
Criminal
References
Criminal Law §§
accept plea bargain.
to withdraw
in the ALR3d/4th
Law 486-499.
justice’s
or Non Vult.
plea bargaining
for Points in
§§
481-485.
consideration
from
100 ALR3d
§§
plea bargain prior
Headnotes
23-29.
Quick Index under
negotiations
of defendant’s failure
as
rendering
entry
Guilty
of
People
province
prose-
empowered to invade the
was not
finding
charging power
that
had
absent
cutor’s
majority’s
reliance on
She would hold that
been abused.
and,
misplaced
Sanford appeal. for defendant on Opinion of the Court Cynar Shepherd, P.J., and S. D. Before: Borman,* JJ. pled Defendant to assault
Per Curiam. great with intent to do harm less than bodily murder, 750.84; 28.279, MCL MSA and to larceny $100, 750.356; MSA 28.588. appeals over MCL He right seeking guilty plea as of to have his set aside and to have the case remanded to the trial court entry danger- of a conviction for assault with a (felonious assault), weapon 750.82; ous MCL MSA 28.277, and for over larceny $100.
Defendant originally charged with assault murder, with intent to commit MSA 28.278, and with On October larceny $100. 1982, the prosecution informed the trial court had been reached between the people defendant. The substance of the bar- gain was that defendant would plead guilty to *3 assault, felonious rather than face the assault with charge, intent to commit murder and he would also plead guilty larceny count. The trial questioned bargain propriety held an evidentiary hearing on the matter. Wit- nesses at hearing testified that defendant apprehended others were being after observed shoplifting at a K-Mart store. escaped Defendant and he was chased down by Thompson, Richard a guard for security the store. Thompson When defendant, recaptured pointed defendant an auto- pistol matic Thompson’s said, into face and "Your fucking ass is dead”. Four jumped men then defen- dant and an altercation followed. Another witness testified that he saw pull defendant the trigger on the pistol during this altercation. The handgun, however, never discharged. Defendant admitted that he pointed pistol at Thompson and made
* judge, sitting Appeals by assignment. Circuit on the Court of Opinion of the Court threatening comment, a but he claimed that trigger pulled accidently gun was when the was police from A officer seized his hand. testified that pistol operable that, was but the time of the assault, it could not have been fired because the clip. in the It bullets were still also stated that was opposed were not to the reduced the victims charge. hearing testimony, After the trial accept guilty refused to ous assault. The trial accept defendant’s to feloni- said that he could not plea because, circumstances, under the public’s it would not interest. be plea bargain 20, 1982, On October a second prosecutor. reached between defendant and the Under this second to arrangement, agreed plead guilty great to assault with intent to do bodily murder, harm less than MSA larceny exchange, 28.279, and to the count. In separate charge against dropped by him was prosecutor. judge accepted The trial defendant’s guilty plan. under this second appeal, On defendant contends that by refusing accept court committed error first proposed between the defendant agree and the We do with defen- dant’s contention.
The issue is whether the trial court can refuse after a is reached Clearly between the and the defendant. the trial court could withhold its to a consent guilty plea. unequivocally GCR 785.7 states: may plead "A or nolo contendere only preme Michigan with the court’s consent.” The Su- *4 People Killebrew,
Court stated in
v
416
(1982):
189, 211;
Mich
This is charging power as was prosecution’s with the v Genesee Circuit Prosecutor Genesee case 115; 215 NW2d Judge, 391 Mich Matulonis, 143; 230 NW2d (1975). notes, summary As our factual charges; the issue brought already had plea. The trial propriety here was the of the refusing accept court did not err affirmed. in this case. The conviction is Affirmed. (dissenting). I dis- respectfully
sent. appeal,
On
contends
charging
interfered with the
impermissibly
prosecutor by refusing
arrangement
negotiated
between
original
attorney.
himself
the prosecuting
turns
the trial court can
The issue
on
*5
People
81
by
S.D.
J.
Dissent
plea
refuse to
a
if it
believes that
prosecutor’s
generous.
is excessivley
The
I, however,
concludes that
it can.
majority
would
hold that
the trial court cannot
prov-
invade the
of the prosecuting
charging
ince
attorney’s
power
finding
power
absent a
that
that
has been abused.
Killebrew,
The majority
cites
416 Mich
189, 211;
(1982),
one issue: "whether appropriate plea agreement; and, so, subject if the proper what role of the court respect to a sentence agreement”. 189, 194, 416 Mich quot- ing leave, from the Court’s order granting 408 (1980). 958, Mich (Emphasis supplied.) The entire opinion is devoted to sentencing agree- ments, not or charge bargains. As stated the practices bargaining charge bargaining, the latter being species plea bargaining, are well established and accepted Id., 198, practices in Michigan. citing Genesee Prosecutor v Genesee Circuit Judge, 672; NW2d 693 as an example. The Court indicated that it did not intend to deviate from its earlier holdings to the effect that to decision "[t]he prosecute under one another, statute rather than prosecute all, or to is an exclusively executive function, vested within the pro- discretion of the sectuor, Genesee Prosecutor v Genesee Circuit Judge, [supra]”. Killebrew, (em- supra, p 199, fn 1 phasis supplied). The Court explained in Killebrew that "[t]he * * *
judge’s bargaining strength lies his statu- torily granted sentencing power, MCA 144 Mich Borman, S.D. to offer reduced this can use Judges
28.1072. plead defendants persuade in order sentences hand, the other On guilty.” role judicial emphasized limited in order must be process negotiation effect on coercive potential "minimize as a defendant, the function to retain percep- arbiter, perserve and to neutral *6 dispenser impartial as an judge of the tion Kille- I read the 202. As justice”. Supreme Court’s brew indicates the it opinion, to which the trial degree the concern grave be- negotiations involved with becomes the defendant: and the tween bargaining posi- unequal of the to the nature "Due defendant, any involvement the judge of the tions in the per- into negotiations transforms discussions ceived coercion. by is harmed who only it the defendant "Nor is negotia- in the involved allowing judge to become the perception of the bargain. public tion of the the must suffer when
judge as a neutral arbiter with the defendant the bench to barter descends from the deal he advocates. prosecutor over the terms of in "Therefore, must limited judicial participation be participa- effect of such order to minimize the coercive defendant, the voluntariness of tion on the to insure in the plea, preserve public and to confidence [the] system.” supra, pp 203-205. judicial concern, Supreme the Notwithstanding this for, statutorily recognized Court the need of, required involvement the trial court Id., Thus, "sentence-bargaining process”. competing these Court struck a balance between concerns: by S. D. balancing competing
"In these considerations —that degree kept of involvement must be minimal atmosphere and to retain avoid coercive confi judicial system judicial in and that control dence sentencing required by statute —we now hold that a participate not or shall initiate discus agreement. reaching may sions aimed at He negotiation engage in the itself. The trial plea-bargaining procedure judge’s role in the shall re judicial main The a detached and neutral that of official. agreements judge’s involvement will therefore Id., proceed along the format described in Part W’[1] omitted.) supplied; (Emphasis footnote opinion, As I it majority ignores read Supreme by balance established Kille- majority opinion permits brew. The the trial court role in the plea-bargaining proce- take an active only dure heretofore allowed be exercised short, major- and the defendant. In longer that our ity advocates trial courts no must remain judicial detached and neutral officials.
This illustrates a judge case how take an active in the plea negotiations. role The trial court *7 stated that its policy plea-bargained plea plea cases is to look behind bargain each to deter- bargain mine whether the satisfies view of its what is or is not in public origi- the interest. The nal charge was assault with intent to commit murder, 750.83; MCL MSA 28.278. original plea-bargained charge was assault danger- with a (felonious assault), ous weapon 750.82; MCL MSA 28.277. The only charge other to which defendant "bargain” could due to the trial court’s involve- opinion, Supreme In Part the V of Killebrew the outlined procedure the to be used if the reach a agreement sentence or the makes a sentence recommenda thereby judge’s statutorily granted tion. The Court the circumscribed sentencing sentence, rejects judge proposed discretion. If the the the may plea. then either affirm or withdraw his 144 great intent to commit was with
ment assault murder, MSA bodily harm less than arrangement represented a 28.279. This latter plead Either choice to the defendant: Hobson’s original charge. This it or the choice guilty to face accepted something not which defendant will- was accept- he was into something it was coerced ingly; feeling that of the trial court’s the ing because "not within original plea-negotiated However, or is not in what is public interest”. to a criminal respect interest with up judicial is not charge against the accused official, of it is a left to the discretion matter supra, 199, p fn prosecutor. Judge, Circuit
In Genesee Prosecutor Genesee 115; the Court was 215 NW2d that quite explicit stating circuit does "[a] power prosecuting enjoy supervisory not Id., 121. An generous plea attorney”. excessively more, of is not an abuse bargain, without confided to the power supervisory power enjoy
"A circuit
does not
prosecuting attorney.
may
magis-
He
reverse a
over a
may
He
only
trate’s decision
for abuse
discretion.
magis-
properly
judgment
substitute his
for that of
prosecuting attorney
reviewing
or
as if he
trate
the
were
magistrate’s
acting
supervi-
novo
in a
decision de
or
respect
sory capacity
prosecuting attorney.
may
only
their
if it
He
appears
reverse or revise
decisions
they
on
record that
have abused
Prosecutor,
supra, p
confided to them.” Genesee
omitted.)
(Emphasis supplied; footnotes
explains
GCR
785.7
what
court
consenting
consider
must
to a
or
6.101(F).
also,
See,
Nothing
nolo contendere.
MCR
suggests
therein even
remotely
given
too
consider
*8
85
People
Ott
v
Indeed,
trial court cannot consider
generous.
e.g.,
Genesee
Prose
see,
charge,
of a
the harshness
Judge,
Circuit
672;
v Genesee
cutor
386 Mich
194
People Curtis,
v
698;
389 Mich
(1972);
693
NW2d
(1973); Genesee Prosecutor v Gene
243
209 NW2d
supra; People
Judge,
Ford,
v
see Circuit
417 Mich
therefore,
(1982);
it follows that
66;
Defendant’s convictions and sentences
should be
vacated. This Court should enter convictions
felonious assault and larceny and the
$100
case should be remanded to
trail
allow the
to sentence the defendant accordingly._
judge’s
Automobile Inter-Ins
tial value because it is an
was harmless because defendant
NW2d 298
distinguishable
[unreported]),
power confided
crime. In
no factual
785.7(3)(a). circumstance,
tained in GCR
Here,
Both
judge’s
role
People Brent,
Bryant,
Bryant,
[1983]
basis to
vis-á-vis the
discretion is limited to
relied
unless the record shows that the
from the
in him in office with
v
on the other
and MCR
we affirmed the trial court’s
129 Mich
upon by
785.7.
support
Exchange,
present
(docket
prosecutor’s
unpublished opinion,
7.215[C]),
App
hand,
defendant’s
case. In
testified that he did not commit the
no.
574;
following
respect
64511,
this Court found that
charging power.
Brent, (bearing