People v. Ott

372 N.W.2d 694, 144 Mich. App. 76

• Court: Michigan Court of Appeals
• Decided: July 2, 1985
• Docket: Docket 70019
• Status: Published

Opinions

Per Curiam.

Defendant pled guilty to assault with intent to do great bodily harm less than murder, MCL 750.84; MSA 28.279, and to larceny over $100, MCL 750.356; MSA 28.588. He appeals as of right seeking to have his guilty plea set aside and to have the case remanded to the trial court for entry of a conviction for assault with a dangerous weapon (felonious assault), MCL 750.82; MSA 28.277, and for larceny over $100.

Defendant was originally charged with assault with intent to commit murder, MCL 750.83; MSA 28.278, and with larceny over $100. On October 15, 1982, the prosecution informed the trial court that a plea bargain had been reached between the people and defendant. The substance of the bargain was that defendant would plead guilty to felonious assault, rather than face the assault with intent to commit murder charge, and he would also plead guilty to the larceny count. The trial court questioned the propriety of the bargain and held an evidentiary hearing on the matter. Witnesses at the hearing testified that defendant and others were apprehended after being observed shoplifting at a K-Mart store. Defendant escaped and he was chased down by Richard Thompson, a security guard for the store. When Thompson recaptured defendant, defendant pointed an automatic pistol into Thompson’s face and said, "Your fucking ass is dead”. Four men then jumped defendant and an altercation followed. Another witness testified that he saw defendant pull the trigger on the pistol during this altercation. The handgun, however, never discharged. Defendant admitted that he pointed the pistol at Thompson and made a threatening comment, but he claimed that the trigger was pulled accidently when the gun was seized from his hand. A police officer testified that the pistol was operable but that, at the time of the assault, it could not have been fired because the bullets were still in the clip. It was also stated that the victims were not opposed to the reduced charge.

After hearing the testimony, the trial judge refused to accept defendant’s guilty plea to felonious assault. The trial judge said that he could not accept the plea because, under the circumstances, it would not be in the public’s interest.

On October 20, 1982, a second plea bargain was reached between defendant and the prosecutor. Under this second arrangement, defendant agreed to plead guilty to assault with intent to do great bodily harm less than murder, MCL 750.84; MSA 28.279, and to the larceny count. In exchange, a separate charge against him was dropped by the prosecutor. The trial judge accepted defendant’s guilty plea under this second plan.

On appeal, defendant contends that the trial court committed error by refusing to accept the first proposed plea bargain between the defendant and the prosecutor. We do not agree with defendant’s contention.

The issue is whether the trial court can refuse to accept a guilty plea after a bargain is reached between the prosecutor and the defendant. Clearly the trial court could withhold its consent to a guilty plea. GCR 1963, 785.7 unequivocally states: "A defendant may plead guilty or nolo contendere only with the court’s consent.” The Michigan Supreme Court stated in People v Killebrew, 416 Mich 189, 211; 330 NW2d 834 (1982):

"If the judge feels that the agreement reached by the defendant and government attorney will serve the interests of justice, he may accept the agreement or recommendation. If, however, the judge, in an exercise of his discretion, finds that the bargain is not appropriate, he is free to reject the plea.”

The United States Supreme Court has similarly ruled that a defendant has no absolute right to have his guilty plea accepted. North Carolina v Alford, 400 US 25, 34-35; 91 S Ct 160; 27 L Ed 2d 162 (1970), citing Lynch v Overholser, 369 US 705, 719; 82 S Ct 1063; 8 L Ed 2d 211 (1962).

The prosecutor and defendant do not have the right to present the trial court with a fait accompli. the judge must be allowed to exercise his discretion; his role is not simply ministerial. The judge is not merely a rubber stamp with which the bargain is sealed.

This is not a case where the court interfered with the prosecution’s charging power as was the case in Genesee Prosecutor v Genesee Circuit Judge, 391 Mich 115; 215 NW2d 145 (1974), and People v Matulonis, 60 Mich App 143; 230 NW2d 347 (1975). As our factual summary notes, the prosecutor had already brought charges; the issue here was the propriety of the guilty plea. The trial court did not err in refusing to accept the guilty plea in this case. The conviction is affirmed.

Affirmed.