People v. Bolden

259 N.W.2d 389, 78 Mich. App. 120, 1977 Mich. App. LEXIS 1172

Opinions

Quinn, P. J., and M. J. Kelly, J.

Defendant was charged with uttering and publishing forged instruments, MCLA 750.249; MSA 28.446, a felony which carries a 14-year maximum. Pursuant to a plea agreement, she pleaded guilty to attempted uttering and publishing forged instruments, MCLA 750.92; MSA 28.287, and was sentenced to a term of 40 months to 5 years. Thereafter, she filed a motion to set aside the plea or in the alternative to modify the sentence to conform to the plea agreement. She says through her appellate counsel that "the Trial Court breached the agreement she had reached with the prosecutor and the police officers and that said agreement was the inducement for the entry of her guilty plea”. An evidentiary hearing was held on the motion after which the trial court denied the relief requested. Defendant appeals on one issue:

"Did the Trial Court commit an abuse of discretion by failing to grant the Defendant-Appellant’s Motion to Set Aside her Guilty Plea or to modify the sentence to conform to the plea agreement?”

The prosecuting attorney stated the plea agreement on the record as follows:

"Yes. In return for not being prosecuted on. the greater charge of uttering and publishing, the defendant has agreed to testify against one Mamie Campbell. She has already testified at preliminary examination. Further the People have indicated to the defendant we will recommend to this honorable Court a sentence from two to four years and that they will run concurrent with the sentence for which this defendant is currently serving in Detroit House of Corrections. We would indicate, however, that these recommendations are not binding on the Court and that rests within the sole discretion of the Court.”

The record clearly shows that defendant and her trial attorney concurred that she was told by the trial court, and remembered being told by the trial court at the time of the evidentiary hearing, that he did not have to follow the recommendation of the prosecutor. She explains her failure to come to grips with the difference between a recommendation and a sentence agreement by stating that "she thought she had an agreement which had been fulfilled by her testifying in the preliminary examination against Mamie Campbell and by further commitment to testify in Circuit Court if necessary”. She says that if she did not think that there was such an agreement she would not have pled guilty to the offense. She fails to comment on the fact that she did not plead guilty to the offense charged with its 14-year maximum, but pled guilty to a lesser offense with a five-year maximum. This apparently we are not to consider as being of any consequence either in her thought processes or in the four corners of the entire bargain.

We are not persuaded by the defendant’s post hoc arguments. First of all because a defendant’s mistaken belief is insufficient to set aside a guilty plea, People v Michael Williams, 36 Mich App 188; 193 NW2d 387 (1971); and secondly because the Supreme Court has taken us out of the equation. In People v Hall, 399 Mich 288; 249 NW2d 62 (1976), an even stronger case than the case presented by Ms. Bolden was before us. The question was whether or not defendant believed that he had been promised a 10-year minimum but had received a 20-year minimum. An evidentiary hearing was held in the trial court and the plea was upheld. In evaluating the matter on appeal we reversed the trial court. The Supreme Court majority said we had no business doing that and that we "erred in substituting * * * [our] judgment for that of the circuit judge. It was the circuit judge’s responsibility to determine whether the plea was induced by a promise of leniency which went unfulfilled.” 399 Mich at 291. (Citation omitted.)

In this case, the circuit judge has exercised his responsibility and has determined that Ms. Bolden was not misled. His opinion is clear and emphatic on the issue:

"The Court is fully satisfied at the time she entered the plea she knowingly and understandingly assented to the agreement that was stated upon the record and she understood what it was and understood it was merely a recommendation and that is all. I have no iota of doubt of her understanding at that time.

"This defendant has been around and knows what goes on in courts of law and knows all about deals and so on.

"She was represented by competent counsel. Mr. Geary. She has talked with Mr. Horton and Mr. Schaberg and she herself was present in court at the time that that agreement was stated upon the record and she confirmed it.

"The Motion to Set Aside the Plea of Guilty is denied.”

The circuit judge has exercised his judgment and fulfilled his responsibility. We are instructed in People v Hall, supra, at 291, not to substitute our judgment for that of the circuit judge. We do not see this as a People v Serr, 73 Mich App 19; 250 NW2d 535 (1976), issue. The dissent proposes a remand for an evidentiary hearing. An evidentiary hearing has already been had. It was held on June 14, 1976, and the trial judge issued his opinion promptly thereafter. To send this back for another evidentiary hearing before a trial judge who has already ruled that he had "no iota of doubt” would be an exercise in futility.

Affirmed.