People v. Shovan
People v. Shovan
Opinion of the Court
On March 12, 1980, defendant was convicted by a jury of larceny from a motor vehicle. MCL 750.356a; MSA 28.588(1). On March 26, 1980, defendant appeared for preliminary examination on the charge of attempted breaking and entering of an occupied dwelling. MCL 750.92, 750.110; MSA 28.287, 28.305. At that time, the defendant waived examination in order to plead guilty to the attempted breaking and entering charge. A plea agreement was placed on the record
"Also part of that agreement is that we are recommending one year in the county jail on the larceny from the motor vehicle.
"If the court follows our recommendation of one year, we will be free to recommend whatever we want concerning the attempted breaking and entering.
"If the court does not follow our recommendation, we will recommend that the second sentence, that sentence being the sentence coming from this attempted breaking and entering, would be served concurrently with the larceny from a motor vehicle sentence.”
Two days later, defendant was arraigned on the attempted breaking and entering charge and pleaded guilty. He was sentenced for both convictions on April 25, 1980, and received from two to five years for larceny from a motor vehicle and from two to five years for attempted breaking and entering. The latter sentence was to be served consecutively. Defendant appeals his plea-based conviction.
This appeal raises a single issue: whether the defendant should have been given the opportunity to withdraw his plea of guilty when the trial court did not follow the prosecutor’s sentence recommendation.
The issue has created two distinct viewpoints. The first requires that the matter be remanded and the defendant afforded the right to withdraw or affirm his plea when an opportunity to withdraw the plea is not provided prior to sentencing. People v Briggs, 94 Mich App 723; 290 NW2d 66 (1980), lv gtd 408 Mich 958 (1980), People v Newsum, 105 Mich App 755; 307 NW2d 412 (1981),
The plea agreement is somewhat elaborate. It contains alternate recommendations regarding sentencing. These terms were placed on the record three times, once when the defendant waived examination and twice during the course of the plea-taking procedure.
At the outset of the plea-taking procedure, the prosecutor stated the agreement in full. The court then inquired of the defendant, "Could you tell me the plea agreement as you understand it.” Defendant’s initial recollection extended only to the prosecutor’s promise to drop the supplemental information on the larceny conviction. After consultation with counsel, he also recalled the prosecutor’s promise "to recommend one year in the county jail”. At the trial court’s request, defense counsel and the prosecutor recited the balance of the terms of the agreement. The defendant then acknowledged that this was the agreement as he understood it and that he had not been promised anything beyond the agreement. At the conclusion of the plea, the trial court stated:
*442 "Let the record reflect that the court has not agreed upon the possibility of a plea or the possible sentence with the prosecutor, the defendant, or anyone acting in the interests of either.”
Immediately thereafter, the court accepted the defendant’s plea and set the matter for sentencing.
On the day of sentencing, the prosecutor’s opening remarks included the following:
"The people have, pursuant to the plea bargain, recommended that this court sentence Mr. Shovan to a term of one year in the county jail in the matter involving the larceny from a motor vehicle, and the people, after that time, when it appeared that that would not be the sentence, did recommend to this court that the terms be served concurrently.”
It is the frequent recitation and confirmation of the terms of the agreement, GCR 1963, 785.7(2)(b), the court’s conscientious questioning of the defendant, GCR 1963, 785.7(1)-(3), and the court’s clear disavowal of any obligation to accept the sentence recommendation, GCR 1963, 785.7(4)(b), that leads us to conclude that the defendant was not misled. Defendant’s plea was voluntarily and knowingly made. Indeed, we are left with the impression that the defendant simply does not like the sentence he received.
Affirmed.
Dissenting Opinion
(dissenting). The issue in this case is whether a trial court must inform a defendant who has pled guilty that it will not follow the prosecution’s sentence recommendation before imposing a sentence more severe than that which was recommended. Upon review of every published
While I disagree with many of the Michigan Supreme Court’s requirements and decisions involving the taking of pleas and appeals from plea-based convictions (which I am nonetheless bound to follow), the problem posed here does not involve a mere technical failure to comply with some aspect of GCR 1963, 785.7. The questions we are confronted with are to what extent a defendant has a reasonable expectation of receiving the sentence recommended by the prosecution and under what circumstances we will permit a defendant’s expectations based upon a sentence recommendation to be rebuffed without giving defendant an opportunity to withdraw his plea. In my opinion, the prosecution’s agreement to recommend a particular sentence does imbue the defendant with certain sentencing expectations. These expectations are often, if not usually, reinforced by defense counsel.
The underlying premise of People v Armstrong, 99 Mich App 137; 297 NW2d 637 (1980), and its progeny is that once the trial court informs the defendant that it is not bound by the sentence recommendation, defendant has no reasonable expectation of receiving the sentence recommended. I disagree with this conclusion. At least many trial courts in our state follow prosecution sentence recommendations as a matter of course. Where these sentence recommendations are not generally
Given the preceding, I am constrained to agree with the majority in People v Bahlhorn, 105 Mich App 118; 306 NW2d 416 (1981), that a cautionary instruction to the effect that the court is not bound by the prosecutor’s recommendation is insufficient to dispel a defendant’s expectation that the agreement will be carried out. The bottom line is that it is impossible for us to know what defense counsel has told his client about the value of the recommendation. We know that sometimes counsel explicitly promise what they cannot guarantee and, more often, implied promises are made by counsel. This is not to impugn the integrity of defense attorneys generally. If an attorney accurately tells his client that in his experience 95% of the time a particular trial court, although not bound by the prosecutor’s recommendation,, nonetheless follows it, the attorney has acted honestly and ethically. At the same time, I cannot reach any conclusion other than that the defendant in such circumstances has a reasonable expectation of receiving the sentence recommended by the prosecution.
Other approaches to this problem besides those adopted in Armstrong, supra, and Black, supra, are, of course, possible. One solution to the problem would be to order remands for evidentiary hearings every time a claim is made by a defen
I fail to see any substantial merit in the Armstrong holding in respect to this issue. Its chief virtue is that it disposes of more cases by guilty pleas than might otherwise have been.
I recognize, that the great majority of defendants who plead guilty are guilty. Nonetheless, where a prosecutor’s recommended sentence has induced the defendant to give up substantial constitutional rights, he should get the recommended sentence unless he is told that he will not and has an opportunity to withdraw his plea. The simple beauty of the rule I advocate is that it very clearly separates those defendants who would plead guilty in any case from those who really were induced to plead guilty because of the prosecutor’s sentence recommendation. I might also add that it is the latter group of defendants in which the few innocent accused willing to plea guilty are most likely to be found.
The majority opinion concludes, "Indeed, we are left with the impression that defendant simply does not like the sentence he received.” This may well be true, but it is ultimately not a persuasive argument. In every case where a sentence is imposed which is harsher than that recommended by the prosecutor, the defendant will not like the sentence imposed. My fundamental disagreement on this issue with the Armstrong Court and the majority here is that under the rule they advocate it is impossible to identify those defendants, whether guilty or innocent, who would have required the state to meet its burden of proving them guilty beyond a reasonable doubt but for their reasonable expectations of receiving the sentence recommended by the prosecutor.
I would remand to the trial court and give defendant the opportunity to withdraw his plea of guilty.
If the Armstrong view ultimately prevails, I would expect this to lessen the total number of cases disposed of by guilty pleas. First, competent counsel would no longer be inclined to urge guilty pleas for a mere sentence recommendation in borderline cases. Second, defense attorneys would have a much more difficult time convincing their clients to plead guilty for sentence recommendations when it began to get around that these were really not beneficial. Of course, if Armstrong does prevail, we will continue to have defendants convicted by guilty pleas which they would not have tendered but for the valueless sentence recommendation.
In Black, I relied in part on the ABA Standards, Pleas of Guilty, § 3.3 (Approved Draft, 1968) for support for my holding. It is true that the ABA Standards were revised in 1979 and § 3.3(b) of the new ABA Standards on Pleas of Guilty would now be satisfied by the Armstrong approach. In People v King, 104 Mich App 459; 304 NW2d 605 (1981), one panel of this Court implied that reliance on the old standards was invalid. I disagree. The ABA Standards are not the law in this state, but merely persuasive authority. I am convinced that the 1968 version of the ABA Standards on Guilty Pleas, § 3.3, represents the better approach. I also note that the King majority strains to find People v Briggs, 94 Mich App 723; 290 NW2d 66 (1980), lv gtd 408 Mich 958 (1980), the lead decision representing my position on this problem, decided correctly under the new ABA Standards. In my opinion, a fair reading of the new ABA Standards on Pleas of Guilty would require the conclusion that under their mandate Briggs is as incorrectly decided as the decisions citing Briggs as authority.
Ironically, the Armstrong rule will probably work its worst injustices among those accused of petty offenses for the first time. It is this group which will most easily get the prosecution to recommend probation in exchange for a guilty plea, and it is this group which otherwise would be most inclined to fight the charges if incarceration was thought to be a possibility. It is also among this group in which innocent accuseds would be most likely to plead guilty or nolo contendere, anticipating sure probation or deferred sentencing, in
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