People v. Black

302 N.W.2d 612, 103 Mich. App. 109, 1981 Mich. App. LEXIS 2682

• Court: Michigan Court of Appeals
• Decided: January 22, 1981
• Docket: Docket 50382
• Status: Published

Opinions

Bronson, P.J.

Defendant pled guilty as charged to the offense of larceny in a building. MCL 750.360; MSA 28.592. He was sentenced to a term of three years’ probation, with the first 30 days to be spent in the St. Clair County Jail. Defendant now appeals as of right.

At the plea-taking hearing, the prosecutor admitted there had been a bargain arranged in this cause. When asked by the court to state the terms of the agreement, the prosecutor stated that, in exchange for the guilty plea, "the prosecution will not oppose the court’s assessing delayed sentence, and would encourage such, without depriving the court of any authority that it may have”. Defendant contends that he should have been allowed to withdraw his plea when the judge decided not to impose delayed sentencing. We agree.

In People v Briggs, 94 Mich App 723, 726-727; 290 NW2d 66 (1980), this Court held that, where a prosecutor makes a sentence recommendation which the trial judge decides he cannot follow, defendant must be allowed to withdraw his plea. See, also, People v Hagewood, 88 Mich App 35; 276 NW2d 585 (1979). In our opinion Briggs controls the disposition of this case.

The prosecution on appeal contends that reliance on Briggs is misplaced because in Briggs there was a sentence recommendation, while here there was none. In our opinion, the prosecution’s encouragement of delayed sentencing was the equivalent of a recommendation. The concepts of encouraging a particular result and recommending a result are synonymous. In either case, a defendant has the right to rely on the support of the prosecutor vis-á-vis the sentence advocated before the trial court and to withdraw his plea if the trial court decides it cannot impose the sentence in dispute.

The prosecution also contends that because the sentence imposed in this case was "liberal” compared to the "harsh” maximum which could have been imposed, this distinguishes Briggs from the instant matter. While we do not dispute that the disparity between the recommended sentence and actual sentence in Briggs was far more extreme than in this case, we fail to see how this is significant. If a defendant was induced to plead guilty believing he would receive a particular sentence, the fact that the sentence actually imposed was only somewhat harsher than the one which induced the plea does not save the bargain. But for the defendant’s perception that a particular sentence would be imposed, he may have declined to plead guilty.¹

At this point we note that another panel of our Court reached a result conflicting with Briggs and Hagewood in People v Armstrong; 99 Mich App 137; 297 NW2d 637 (1980). Armstrong stands for the proposition that if the trial court advises defendant it need not follow the recommended sentence and gives defendant the opportunity to withdraw his plea, there is no right to withdraw the plea after sentencing actually occurs. Without the benefit of the Armstrong decision, the prosecution essentially argues that its rationale should be adopted by this panel. We disagree. If the trial court knows that it is not going to impose the sentence recommended by the prosecutor, defendant should be given the chance to withdraw his plea with the benefit of this information. ABA Standards, Pleas of Guilty, § 3.3 (Approved Draft, 1968); Briggs, supra; Hagewood, supra. There exists no good reason why a trial court should be coy with a defendant concerning whether it will or will not impose the sentence recommended.² Unless the trial court actually tells defendant it will not impose the recommended sentence, it seems unfair to refuse to allow the plea to be withdrawn.

In any case, even assuming that Armstrong represented the better rule, it would not apply here. Although the trial judge advised defense counsel during an in-chambers conference that a delayed sentence might not be imposed, he did not apprise defendant in open court at the time of sentencing that he was not bound by the recommendation and did not extend to defendant the opportunity to request to withdraw his plea. Rather, he allowed defendant’s attorney father, appearing as of counsel, and defendant’s attorney to point out inaccuracies in the presentence report and to speak on defendant’s behalf. After this occurred, the trial court immediately proceeded to impose the objectionable sentence.

Defendant also contends that the trial court erred in holding ex parte communications with the presentence investigator. These communications occurred after the presentence report recommending a delayed sentence was filed and prior to sentencing. In its opinion denying defendant’s "amended motion for a new trial” the court stated that no information was conveyed to it which was not available to defendant and his attorney in the presentence report. Whether the trial judge actually received information not contained in the presentence report is irrelevant in our opinion. Sentencing is a critical stage in a criminal proceeding at which a defendant is entitled to assistance of counsel. Mempa v Rhay, 389 US 128; 88 S Ct 254; 19 L Ed 2d 336 (1967). Where the trial court has communicated with the probation officer ex parte, we must presume that this right has been denied. See People v Oliver, 90 Mich App 144, 149-150; 282 NW2d 262 (1979), rav’d on other grounds 407 Mich 857; 283 NW2d 502 (1979). It may well be that defendant was not prejudiced by the ex parte communications. However, as the Supreme Court stated in Glasser v United States, 315 US 60, 76; 62 S Ct 457; 86 L Ed 680 (1941): "The right to have the assistance of counsel is too fundamental and absolute to indulge in nice calculations as to the amount of prejudice arising from its denial”.

We reject defendant’s assertion that an insufficient factual basis was established for his guilty plea. While it’s true that defendant denied knowledge that the stolen items, lottery tickets, were going to be taken by his friends and cohorts, this, in and of itself, is not fatal. From the facts admitted by defendant, including the admission that he accepted some of the lottery tickets, an inculpatory inference upon which a conviction for the charged offense could have been sustained might reasonably be drawn by a jury. People v Haack, 396 Mich 367, 376-378; 240 NW2d 704 (1976).

Reversed and remanded.

D. C. Riley, J., concurred.

1 Of course, the defendant’s perception of what sentence he would receive must be reasonable. If he merely assumed he would get a particular sentence without representations made by the prosecutor or the court, the fact that he received a more severe sentence would not require allowing him to withdraw his plea.

2 Indeed, the only reason which we can conceive of explaining why a trial court would refuse to inform a defendant that it will not impose the recommended sentence is to get him to plead guilty so that it can then impose a stiffer sentence. We are unable to see how the ends of justice are served by allowing this sort of judicial trickery.