PEOPLE v STRICKLAND
Docket No. 28472
Court of Appeals of Michigan
September 6, 1977
78 Mich. App. 40
Submitted June 16, 1977, at Lansing. Leave to appeal applied for.
Allowing trial on a higher charge following reversal of a plea-based conviction of a lesser offense would (1) discourage exercise of the defendant‘s right to appeal a conviction claimed to be based on an improperly accepted plea, and (2) tend to insulate from appellate scrutiny noncompliance with the guilty plea procedure established by statute and court rule.
2. CRIMINAL LAW-GUILTY PLEAS-HIGHER CHARGE-LESSER CHARGE-SAME TRANSACTION-ACCEPTANCE OF PLEA.
Application of the rule that upon the acceptance of a plea of guilty, as a matter of policy, the state may not thereafter charge a higher offense arising out of the same transaction has been limited in cases where (1) a defendant withdraws his plea of guilty as distinguished from cases where the plea is set aside because of a procedural error, (2) the prosecutor appeals from the entry of a guilty plea, and (3) a defendant successfully appeals from a defective plea proceeding but the prosecutor pointed out the procedural error to the trial judge before the plea was accepted.
3. CRIMINAL LAW-PLEA OF GUILTY-WITHDRAWAL OF PLEA-SUBSEQUENT CHARGES-HARSHER SENTENCES-REASONING-RECORD.
The rule which forbids charging a defendant with a higher offense upon the vacation of a plea-based conviction does not
4. CRIMINAL LAW-GUILTY PLEAS-PLEA PROCEEDINGS-SUBSTANTIAL COMPLIANCE-COURT RULES.
Only substantial compliance with most of the requirements of the court rule governing the taking of a defendant‘s guilty plea is now required because it has been demonstrated that perfect compliance with the desired guilty plea procedures is an impossibility (
5. CRIMINAL LAW-APPEAL AND ERROR-DISMISSAL OF CHARGES-CONDITIONS-AGREEMENT NOT TO APPEAL.
It is error to allow a dismissal of charges by the prosecution in one case on the condition that a defendant not appeal his conviction in another case.
6. CRIMINAL LAW-GUILTY PLEAS-APPEAL AND ERROR-HIGHER CHARGE-SAME TRANSACTION-DIFFERENT TRANSACTION.
The rule that upon the acceptance of a plea of guilty, as a matter of policy, the state may not charge a higher offense arising out of the same transaction if the plea-based conviction on a lesser offense is challenged by a defendant and overturned on appeal because of a procedural error should not be extended to bar the prosecution from charging a defendant with a second charge arising out of a transaction other than the transaction giving rise to a first charge to which the defendant pleads guilty in return for the dropping of the second charge where the defendant later challenges the plea-based conviction as being procedurally defective and gains a reversal of that conviction on appeal.
7. CRIMINAL LAW-EVIDENCE-IMPEACHMENT-PRIOR CONVICTIONS-DEFENDANT‘S CREDIBILITY-DISCRETION.
A trial judge has the discretion to prohibit the use of a defendant‘s prior felony convictions to impeach the defendant‘s credibility if he should take the stand in his own behalf.
8. CRIMINAL LAW-EVIDENCE-PRIOR GUILTY PLEAS.
Evidence of prior guilty pleas is not admissible as evidence against a defendant but that rule does not prohibit a defendant from presenting such evidence.
Determinations of whether or not evidence is relevant rest within the sound discretion of the trial court, and the court‘s determination will not be upset on appeal unless a clear abuse of discretion has occurred.
DISSENT BY D. E. HOLBROOK, JR., P. J.
10. CRIMINAL LAW-GUILTY PLEAS-PLEA BARGAINS.
Plea bargains are an accepted method of disposing of criminal cases and are binding on each party.
11. CRIMINAL LAW-GUILTY PLEAS-PLEA BARGAINS-CONDITIONS-RIGHT TO APPEAL.
A plea bargain may not be conditioned on a defendant foregoing his right to appeal the plea-based conviction.
12. CRIMINAL LAW-GUILTY PLEAS-DISMISSAL OF CHARGES-REINSTATEMENT OF CHARGES-APPEAL AND ERROR.
The prosecution should not be permitted to renege on its bargain to dismiss charges against a defendant merely because the defendant has successfully appealed a plea-based conviction; to allow a prosecutor to reinstate charges that were once dismissed will have a “chilling” effect on some defendants concerning their right to appeal a plea-based conviction and the only way to prevent such a chilling effect on the right of appeal is to impose an absolute bar to the prosecution on the charges which were dismissed as a part of the plea bargain.
Appeal from Saginaw, Hazen R. Armstrong, J. Submitted June 16, 1977, at Lansing. (Docket No. 28472.) Decided September 6, 1977. Leave to appeal applied for.
Wyatt Strickland, Jr., was convicted of armed robbery. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert L. Kaczmarek, Prosecuting Attorney, and Peter C. Jensen, Assistant Prosecuting Attorney, for the people.
Dwan & Doyle, for defendant on appeal.
ALLEN, J. This appeal1 requires that we either extend or limit the following holding in People v McMiller, 389 Mich 425, 434; 208 NW2d 451 (1973).
“[W]e hold that upon the acceptance of a plea of guilty, as a matter of policy, the state may not thereafter charge a higher offense arising out of the same transaction.”
The precise question presented is this: Where a defendant charged with two armed robberies pleads guilty in one case in return for dismissal of the other, may the prosecutor later reinstate both charges if the defendant successfully appeals his plea-based conviction?
The present case is factually distinguishable from McMiller in two respects. First, the two charges in this case did not arise from the “same transaction“. Second, the prosecutor did not charge a “higher” offense; rather, he charged two offenses of equal rank where the defendant had previously been convicted of only one. While the facts are distinguishable, the defendant points out that the policy considerations underlying McMiller are also present in this case.
“Allowing trial on a higher charge following reversal of a plea-based conviction of a lesser offense would (1) discourage exercise of the defendant‘s right to appeal a
For the reasons outlined later in this opinion (Section I), we hold that McMiller does not require reversal of the defendant‘s conviction. We also reject two other less meritorious arguments raised by the defendant (Sections II and III).
FACTS
On February 24, 1973, a lone gunman robbed the Martinez Grocery in Saginaw. One week later, Scott‘s Auto Sales in Saginaw was similarly victimized. The defendant was arrested and charged in the Scott‘s case and immediately became a suspect in the Martinez case.2 While he was in custody on the Scott‘s charge, he confessed to committing the Martinez robbery.
Following negotiations, the defendant pleaded guilty to armed robbery in the Scott‘s case on April 16, 1973. That plea was taken by Saginaw County Circuit Judge Eugene Snow Huff who later imposed a 5-15 year sentence. The prosecutor then dismissed the charges in the Martinez case (this case) as required by the plea bargain.
The plea-based conviction in the Scott‘s case was appealed to another panel of this Court. The conviction was reversed and remanded in an unpublished opinion dated January 2, 1975, because Judge Huff had failed to give all of the warnings required by
The Scott‘s case was set for trial before Judge Huff on September 16, 1975. The defendant appeared with his attorney and once again pled guilty. The prosecutor emphasized-and the defendant and his attorney acknowledged-that the original plea bargain was no longer being offered to the defendant. The prosecutor clearly stated his intention to proceed with the Martinez case even if the defendant pled guilty in the Scott‘s case. After accepting the plea, Judge Huff again sentenced the defendant to 5-15 years in prison. That conviction has not been appealed.
The Martinez case was set for a jury trial before Judge Armstrong on February 3, 1976. A Walker4 hearing was held before the trial started in order to determine the voluntariness of the defendant‘s confession. The defendant testified that a Detective Washington had promised that he would not be prosecuted for the Martinez robbery if he confessed. But Washington denied making any promises. The judge accepted Washington‘s version of the events and ruled that the confession was voluntary and admissible.
The defendant then asked the judge to exercise his discretionary power to prevent the prosecutor from impeaching the defendant with evidence of two prior felony convictions.
The defendant then announced that, because of the adverse rulings on his various motions, he had decided not to testify. The defense rested without presenting any witnesses.
The jury found the defendant guilty of armed robbery as charged. Judge Armstrong sentenced the defendant to a 10-15 year term to be served concurrently with the 5-15 year sentence in the Scott‘s case. The irony is that, as a result of his “successful” appeal from his original plea conviction in the Scott‘s case, the defendant now has two convictions and a minimum 10-year sentence
I. IMPACT OF MCMILLER
People v McMiller, 389 Mich 425; 208 NW2d 451 (1973), cert den 414 US 1080; 94 S Ct 599; 38 L Ed 2d 486 (1973), had drawn a generally unfavorable response from most of the members of this Court. The underlying feeling has been that it is wrong to allow a defendant to retain all of the benefits of his plea bargain while allowing him to disown the attendant obligations.
McMiller was denied retroactive application in several cases where the second conviction-whether by plea or trial-was obtained before the McMiller decision was released. People v Potts, 55 Mich App 622; 223 NW2d 96 (1974), People v Skowronek, 57 Mich App 110; 226 NW2d 74 (1974), and People v McGreevy, 52 Mich App 52; 216 NW2d 623 (1974). Compare Mikowski v Grand Traverse County Sheriff, 52 Mich App 66; 216 NW2d 603 (1974), but contrast People v Goins, 54 Mich App 456; 221 NW2d 187 (1974).
This Court has repeatedly held that McMiller does not apply in cases where a defendant withdraws his guilty plea-as distinguished from cases where the plea is set aside because of a procedural error. People v Moore, 74 Mich App 195; 253 NW2d 708 (1977), and Moore v 9th District Judge, 69 Mich App 16; 244 NW2d 346 (1976). The Supreme Court initiated this limitation. See People v Millard, 394 Mich 99; 228 NW2d 783 (1975), and People v Lewandowski, 394 Mich 529; 232 NW2d 173 (1975).
In People v Triplett, 68 Mich App 531; 243 NW2d 665 (1976), this Court held that, while McMiller may prohibit retrial on a higher charge, it does not prohibit imposition of a higher sentence following retrial on the charge to which the initial plea was entered. But cf. North Carolina v Pearce, 395 US 711; 89 S Ct 2072; 23 L Ed 2d 656 (1969).
Even in the cases where McMiller has been strictly followed or extended by analogy, this Court has usually done so reluctantly. See People v Thornton, 70 Mich App 508; 246 NW2d 9 (1976), and People v Hubbard, 57 Mich App 542; 226 NW2d 557 (1975), remanded for reconsideration on other grounds, 395 Mich 801 (1975). But contrast People v Goins, supra.
Finally, we note that other courts, including the United States Supreme Court, would apparently decline to apply a McMiller-type analysis on facts like those in the present case. See Anno.: Enforceability of Plea Agreement, or Plea Entered Pursuant Thereto, with Prosecuting Attorney Involving Immunity from Prosecution for Other Crimes, 43 ALR3d 281, Santobello v New York, 404 US 257; 92 S Ct 495; 30 L Ed 2d 427 (1971), United States v Wells, 430 F2d 225 (CA 9, 1970), and State v Myers, 12 Ariz App 409; 471 P2d 294 (1970). It should be emphasized that all the preceding cita-
Two Michigan decisions deserve special comment because of their close similarity to the present case. In People v Clark, 43 Mich App 476; 204 NW2d 332 (1972), this Court allowed the prosecutor to reinstate separate substantive charges when an unexpected Supreme Court decision upset the bargained-for plea conviction. Since Clark was decided before McMiller, its validity as precedent is questionable. However, it should also be noticed that Clark was authored by then Judge LEVIN and it is factually distinguishable from McMiller on the same basis as is the present case. The rationale in the Clark decision was summarized as follows:
“Whether Clark sought to get out of the bargain or was relieved of the bargain is beside the point. He was not required to serve the sentence imposed by the court. We see no reason to hold the prosecutor in such a case to his part of the bargain. Clearly, this is a case of mutual mistake concerning a basic underlying assumption; on principle, although this is a mistake of law and not of fact, the people are entitled to be relieved of the consequences of that mistake.” 43 Mich App at 484.
The other decision deserving special mention is People v Goins, supra. This writer concurred in the Goins opinion which was written by Judge T. M. BURNS. The defendant in that case was charged with sale of marijuana and carrying a concealed weapon. Pursuant to plea negotiations, a third count charging possession of marijuana was added and the defendant pled guilty to that count
For present purposes, People v Goins, supra, may be distinguished because all of the charges arose out of the “same transaction” and sale of marijuana was a “higher” offense since it then carried a possible life sentence.
“[W]e hold that upon the acceptance of a plea of guilty, as a matter of policy, the state may not thereafter charge a higher offense arising out of the same transaction.” (Emphasis supplied.) People v McMiller, 389 Mich 425, 434; 208 NW2d 451 (1973).
By way of contrast, the charges in the present case arose from separate transactions and were of equal rank. Further, Goins was decided just one year after McMiller when there had been less time to evaluate McMiller‘s impact and the validity of its underlying policy assumptions.
Those policy considerations were quoted at the beginning of this opinion. We repeat them here in extended form.
“Allowing trial on a higher charge following reversal of a plea-based conviction of a lesser offense would (1) discourage exercise of the defendant‘s right to appeal a conviction claimed to be based on an improperly accepted plea, and (2) tend to insulate from appellate scrutiny non-compliance with the guilty plea procedure established by the statute and the court rule.
“We, the Bench and Bar of Michigan, have invested untold hours of effort in an attempt to devise a rule for the taking of guilty pleas which will fairly and finally
dispose of over 75% of our criminal cases. In the latest amendment to our court rule dealing with this subject we have detailed certain steps necessary to the proper taking of a guilty plea and provided that failure to follow the rule will constitute reversible error. We intend thereby to assure the corollary that observance of the rule will result in unassailable conviction.” 389 Mich at 432.
Subsequent experience demonstrated the impossibility of obtaining perfect compliance with desired guilty plea procedures. After an initial attempt at rigidly insisting on strict compliance, the Supreme Court reconsidered and now requires only substantial compliance with most of the requirements of
In People v Harrison, 386 Mich 269; 191 NW2d
“The Supreme Court has chosen, at least in words, to limit its Harrison rule to cases where the ‘stated reason’ for the adjournment of the trial is to chill exercise of a defendant‘s constitutional right to appeal a criminal conviction. And, even if the rule is not so limited-if it applies as well to cases where it can be demonstrated that, although not ‘stated‘, pending charges were held over the head of a convicted person in an effort to dissuade him from appealing-it has not been shown on this record that what was done here was done in an effort to chill Clark‘s, or any other defendant‘s, exercise of his right to appeal.” 43 Mich App at 483.
We believe that that reasoning applies equally in the present case.6
For all of the reasons outlined above, we refuse to extend McMiller by holding that it bars reinstatement of the charge in this case. We are free to reach that result because the present case is factually distinguishable in significant respects from the rule announced in McMiller. We choose to reach that result because of serious doubts about the continuing validity of McMiller‘s policy foundations.
The defendant had two prior felony convictions, one for rape and one for armed robbery (the Scott‘s conviction). The defendant asked the trial judge to exercise his discretion and prohibit impeachment with evidence of those convictions. The court made the following ruling:
“Well, it‘s the opinion of the Court exercising its discretion, that the prosecution may use this to test the credibility of the witness. * * * [S]o until the Supreme Court makes it absolutely mandatory that you can‘t use that for credibility it‘s the discretion of the Court that you may if you so choose.”
The trial judge obviously recognized his discretion and exercised it. People v Jackson, supra. He also clearly identified the exercise of his discretion as required by the order in People v Cherry, 393 Mich 261; 224 NW2d 286 (1974). He did not specifically enumerate and evaluate the various factors which People v Jackson, supra, borrowed from United States v Gordon, supra. In fact, the tone of the ruling suggests that he would allow impeachment in almost all cases. The defendant argues that these facts demonstrate an abuse of discretion, but we disagree. No Michigan case has yet required a trial judge to evaluate the Gordon consideration on the record. By allowing trial judges discretion in these matters, the Supreme Court must have accepted the fact that some judges would lean to allow impeachment in most cases, whereas others would usually prohibit it. But the matter is discretionary with the trial court. That discretion was exercised in this case. And we find no abuse of that discretion. The defendant‘s argument is without merit.
The defendant wanted to prove the prior plea bargain in the Scott‘s case in order to buttress his proposed testimony that Detective Washington had promised that he would not be prosecuted for the Martinez robbery if he confessed. The theory was that proving that things eventually worked out that way (in the initial plea bargain) would impeach Washington‘s testimony that he had made no promises in return for the confession. The trial judge ruled that he would allow the defendant to testify about what happened during the interview with Washington but he would not allow testimony about the later plea bargain in the Scott‘s case. He felt that evidence of what happened in the Scott‘s case was not relevant to this prosecution for the Martinez robbery.
Evidence of prior guilty pleas is not admissible against a defendant. People v George, 69 Mich App 403; 245 NW2d 65 (1976), but that rule would not have prohibited presentation of testimony in the present case where it was the defendant who sought to introduce the evidence.
But determinations of whether or not evidence is relevant rest within the discretion of the trial court, and the court‘s determination will not be upset on appeal unless a clear abuse of discretion has occurred. People v Rimson, 63 Mich App 1; 233 NW2d 867 (1975), and People v Hodo, 51 Mich App 628; 215 NW2d 733 (1974). We find no abuse of discretion in this case.
CONCLUSION
The conviction and sentence are affirmed.
D. R. FREEMAN, J., concurred.
As a matter of judicial policy I believe the prosecutor‘s original agreement with defendant to dismiss the Martinez charge in return for his guilty plea to the Scott‘s charge should bar the instant prosecution. My conclusion rests on the interplay between two important judicial policies-enforcing the prosecutor‘s end of a plea bargain and preventing a “chill” on a defendant‘s right to appeal.
Plea bargains are an accepted method of disposing of criminal cases and are binding on each party. People v Reagan, 395 Mich 306, 314; 235 NW2d 581 (1975), People v Eck, 39 Mich App 176, 178; 197 NW2d 289 (1972). In Reagan the Supreme Court held binding a prosecutor‘s bargain to dismiss charges if the defendant successfully passed a polygraph test. Although the defendant passed the test, the prosecutor brought charges. Regardless of the wisdom of the agreement, the nolle prosequi order placed on the record as part of the bargain represented a pledge of public faith by the prosecutor and is a binding agreement not to prosecute. 395 Mich at 317-318. I concurred in People v Shipp, 68 Mich App 452; 243 NW2d 18 (1976), lv den 397 Mich 826 (1976), which essentially held that if the prosecutor had not complied with his end of a bargain to dismiss charges, Reagan mandated that the defendant be discharged.
In short, when a prosecutor enters into an agree-
In People v Soto, 62 Mich App 370; 233 NW2d 545 (1975), the Court addressed both issues which form the basis of this dissent-enforcing a prosecutor‘s agreement and the “chill” on defendant‘s right to appeal if the prosecutor‘s agreement is not enforced. Although concluding that the unexplained delay in the prosecutor‘s filing of a dismissal of one charge until the 60-day appeal period had run on the plea-based conviction did not constitute per se error, the Court noted the “chilling” effect such deliberate prosecution practices1 might have on some defendants. The Court noted, however, that the “chilling” effect might be illusory since a prosecutor cannot renege on his bargain to dismiss charges merely because the defendant has appealed a plea-based conviction. 62 Mich App at 374. I agree there would be no “chilling” effect on defendant‘s right to appeal if the prosecutor was barred from resurrecting once-dismissed charges.2
As noted by the majority it is constitutionally obnoxious for a prosecutor to dismiss one charge on condition that a defendant not appeal a conviction or plea in another case, whether overtly as in People v Harrison, 386 Mich 269; 191 NW2d 371 (1971), or by waiting to dismiss a charge until after the 60-day appeal period on the plea-based conviction has expired, People v Ledrow, 53 Mich App 511; 220 NW2d 336 (1974), People v Butler, 43 Mich App 270; 204 NW2d 325 (1972). In the instant case the prosecutor brought the defendant to trial on the Martinez charge even though the prosecutor had obtained a second guilty plea and the same sentence in the Scott‘s case as he had obtained originally. In essence the defendant was punished for exercising his right to appeal.
In Soto the Court noted that the defendant in that particular case was not deterred from appealing but that less assertive defendants might be if they feared the prosecutor could reinstate once dismissed charges if they appealed the plea conviction. I do not think Soto goes far enough since it restricts its analysis to whether a particular defendant was actually deterred from appealing. To allow a prosecutor to reinstate charges that were once dismissed will have a substantial impact on all future defendants who agree to a plea bargain. Defense counsel will begin counseling their clients that appealing a plea-based conviction subjects the defendant to the full array of charges that were dismissed pursuant to the bargain. Thus a class of
As the Guilty Plea Cases, 395 Mich 96; 235 NW2d 132 (1975), provide, a prosecutor shares responsibility for ensuring the error-free taking of guilty pleas. Although we could not hold the prosecutor to this standard in the instant case, since the original plea was taken in 1973, in the future a prosecutor should have only himself to blame if a bargained-for guilty plea is found defective on appeal.
I believe the prosecutor should have been barred from resurrecting the Martinez robbery charge after defendant‘s successful appeal of the initial guilty plea to the Scott‘s charge. I would therefore vacate defendant‘s conviction and sentence on the Martinez robbery.