Elliott, J.
GCR 1963, 785.7 was fully and carefully complied with when defendant, who was charged with armed robbery, entered a guilty plea to an added count of assault with intent to rob while armed. He was sentenced to a maximum term of ten years with the greatest minimum term, six and two-thirds years, permitted by
People v Tanner,
387 Mich 683; 199 NW2d 202 (1972).
There is no merit to the contention that a factual basis for the plea was not established as required by subparagraph 3 of that rule. Defendant told the judge that he entered the bar by the
back door with a gun in a bag. When an accomplice announced a holdup, defendant pulled out his gun and they proceeded to rob the bar and patrons of approximately $500. He said he was pleading guilty because he was guilty and that he had told the judge the truth.
Defendant further contends that he received an impermissible promise of leniency which induced him to plead guilty rather than take the chance of being convicted of armed robbery and face a possible sentence of life imprisonment. This claim is made by reason of the following portion of the plea-taking record:
"Q.
Do you know what the maximum sentence is on that charge?
’A.
Yes, I do, sir.
”Q.
What is it?
'A. I believe it carries life, I’m not sure.
’’The Court:
Is there a minimum sentence?
”Mr. Daggs:
It carries life down to probation, any number of years.
”The Court:
Let the record show, at this point that we have had Sergeant Provencal from the Armed Robbery, Major Theft Section of the Police Department here and Sergeant Provencal made a statement on this record yesterday. He suggested to me that because of your cooperation with the Police Department at the present time in solving several other cases, two other mean [sic] were arrested and one has already pled guilty; these arrests and the solution of many of these armed robbery cases came about as a result of your assistance to the Police Department. He suggested to me that I treat this case with a ten-year maximum.
"Now although this crime does carry a life sentence, at this time I would assure you and Mr. Daggs that I would treat this as a ten-year maximum, the worse
[sic]
I can do for you is put you in jail for ten years.
"I want the record to also reflect, Mr. Daggs and Mr. Palmer, if after I see a probation report in this matter,
my conscience and duties as a judge incline me toward the feeling I have to give you more than that, I will set this plea aside. At this time I see no reason for that to happen, do you understand that?
"Mr. Daggs:
Yes, your Honor.
"Q.
(By the court, continuing): Knowing all that, Mr. Palmer, you still want to plead guilty, is that right?
"A.
Yes, sir.
"Q.
And you are pleading guilty here because you are guilty?
"A.
Yes, I am.”
Later, after the waiver of each right covered by GCR 1963, 785.7(l)(d) and a determination from personal inquiry of defendant that his plea was freely, understandingly and voluntarily made and not the result of undue influence, compulsion or duress, the following dialogue is transcribed:
"Q.
(By the court, continuing): Now has anybody made any promises to you other than the promise I have already given you myself on the record here this morning?
"A.
No.
"Q.
No other promises have been made?
"Q.
You don’t have any deals going with anyone about the outcome of this case other than this arrangement I’ve discussed here on the record?
"A.
No.”
GCR 1963, 785.7(2) provides in part:
"If the tendered plea is the result of an agreement between the prosecutor and the defendant or his lawyer regarding the entry of a plea, the agreement shall be stated on the record and affirmatively acknowledged by the defendant, his lawyer and the prosecutor.”
This sentence admirably brings plea agreements into the open.
The unanimous opinion of the United States Supreme Court in
Santobello v New York,
404 US 257, 260-262; 92 S Ct 495, 498-499; 30 L Ed 2d 427, 432-433 (1971), states:
"The disposition of criminal charges by agreement between the prosécutor and the accused, sometimes loosely called 'plea bargaining’, is an essential component of the administration of justice. Properly administered, it is to be encouraged. If every criminal charge were subjected to a full-scale trial, the States and the Federal Government would need to multiply by many times the number of judges and court facilities.
"Disposition of charges after plea discussions is not only an essential part of the process but a highly desirable part for many reasons. It leads to prompt and largely final disposition of most criminal cases; it avoids much of the corrosive impact of enforced idleness during pretrial confinement for those who are denied release pending trial; it protects the public from those accused persons who are prone to continue criminal conduct even while on pretrial release; and, by shortening the time between charge and disposition, it enhances whatever may be the rehabilitative prospects of the guilty when they are ultimately imprisoned. * * *
"However, all of these considerations presuppose fairness in securing agreement between an accused and a prosecutor. It is now clear, for example, that the accused pleading guilty must be counseled, absent a waiver. * * * Fed Rule Crim Proc 11, governing pleas in federal courts, now makes clear that the sentencing judge must develop,
on the record,
the factual basis for the plea, as, for example, by having the accused describe the conduct that gave rise to the charge. The plea must, of course, be voluntary and knowing and if it was induced by promises, the essence of those promises must in some way be made known. There is, of course, no absolute right to have a guilty plea accepted. * * * A court may reject a plea in exercise of sound judicial discretion.
"This phase of the process of criminal justice, and the adjudicative element inherent in accepting a plea of
guilty, must be attended by safeguards to insure the defendant what is reasonably due in the circumstances. Those circumstances will vary, but a constant factor is that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.”
Santobello v New York, supra.
(Citations and footnotes omitted.)
Federal Rules of Criminal Procedure
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Elliott, J.
GCR 1963, 785.7 was fully and carefully complied with when defendant, who was charged with armed robbery, entered a guilty plea to an added count of assault with intent to rob while armed. He was sentenced to a maximum term of ten years with the greatest minimum term, six and two-thirds years, permitted by
People v Tanner,
387 Mich 683; 199 NW2d 202 (1972).
There is no merit to the contention that a factual basis for the plea was not established as required by subparagraph 3 of that rule. Defendant told the judge that he entered the bar by the
back door with a gun in a bag. When an accomplice announced a holdup, defendant pulled out his gun and they proceeded to rob the bar and patrons of approximately $500. He said he was pleading guilty because he was guilty and that he had told the judge the truth.
Defendant further contends that he received an impermissible promise of leniency which induced him to plead guilty rather than take the chance of being convicted of armed robbery and face a possible sentence of life imprisonment. This claim is made by reason of the following portion of the plea-taking record:
"Q.
Do you know what the maximum sentence is on that charge?
’A.
Yes, I do, sir.
”Q.
What is it?
'A. I believe it carries life, I’m not sure.
’’The Court:
Is there a minimum sentence?
”Mr. Daggs:
It carries life down to probation, any number of years.
”The Court:
Let the record show, at this point that we have had Sergeant Provencal from the Armed Robbery, Major Theft Section of the Police Department here and Sergeant Provencal made a statement on this record yesterday. He suggested to me that because of your cooperation with the Police Department at the present time in solving several other cases, two other mean [sic] were arrested and one has already pled guilty; these arrests and the solution of many of these armed robbery cases came about as a result of your assistance to the Police Department. He suggested to me that I treat this case with a ten-year maximum.
"Now although this crime does carry a life sentence, at this time I would assure you and Mr. Daggs that I would treat this as a ten-year maximum, the worse
[sic]
I can do for you is put you in jail for ten years.
"I want the record to also reflect, Mr. Daggs and Mr. Palmer, if after I see a probation report in this matter,
my conscience and duties as a judge incline me toward the feeling I have to give you more than that, I will set this plea aside. At this time I see no reason for that to happen, do you understand that?
"Mr. Daggs:
Yes, your Honor.
"Q.
(By the court, continuing): Knowing all that, Mr. Palmer, you still want to plead guilty, is that right?
"A.
Yes, sir.
"Q.
And you are pleading guilty here because you are guilty?
"A.
Yes, I am.”
Later, after the waiver of each right covered by GCR 1963, 785.7(l)(d) and a determination from personal inquiry of defendant that his plea was freely, understandingly and voluntarily made and not the result of undue influence, compulsion or duress, the following dialogue is transcribed:
"Q.
(By the court, continuing): Now has anybody made any promises to you other than the promise I have already given you myself on the record here this morning?
"A.
No.
"Q.
No other promises have been made?
"Q.
You don’t have any deals going with anyone about the outcome of this case other than this arrangement I’ve discussed here on the record?
"A.
No.”
GCR 1963, 785.7(2) provides in part:
"If the tendered plea is the result of an agreement between the prosecutor and the defendant or his lawyer regarding the entry of a plea, the agreement shall be stated on the record and affirmatively acknowledged by the defendant, his lawyer and the prosecutor.”
This sentence admirably brings plea agreements into the open.
The unanimous opinion of the United States Supreme Court in
Santobello v New York,
404 US 257, 260-262; 92 S Ct 495, 498-499; 30 L Ed 2d 427, 432-433 (1971), states:
"The disposition of criminal charges by agreement between the prosécutor and the accused, sometimes loosely called 'plea bargaining’, is an essential component of the administration of justice. Properly administered, it is to be encouraged. If every criminal charge were subjected to a full-scale trial, the States and the Federal Government would need to multiply by many times the number of judges and court facilities.
"Disposition of charges after plea discussions is not only an essential part of the process but a highly desirable part for many reasons. It leads to prompt and largely final disposition of most criminal cases; it avoids much of the corrosive impact of enforced idleness during pretrial confinement for those who are denied release pending trial; it protects the public from those accused persons who are prone to continue criminal conduct even while on pretrial release; and, by shortening the time between charge and disposition, it enhances whatever may be the rehabilitative prospects of the guilty when they are ultimately imprisoned. * * *
"However, all of these considerations presuppose fairness in securing agreement between an accused and a prosecutor. It is now clear, for example, that the accused pleading guilty must be counseled, absent a waiver. * * * Fed Rule Crim Proc 11, governing pleas in federal courts, now makes clear that the sentencing judge must develop,
on the record,
the factual basis for the plea, as, for example, by having the accused describe the conduct that gave rise to the charge. The plea must, of course, be voluntary and knowing and if it was induced by promises, the essence of those promises must in some way be made known. There is, of course, no absolute right to have a guilty plea accepted. * * * A court may reject a plea in exercise of sound judicial discretion.
"This phase of the process of criminal justice, and the adjudicative element inherent in accepting a plea of
guilty, must be attended by safeguards to insure the defendant what is reasonably due in the circumstances. Those circumstances will vary, but a constant factor is that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.”
Santobello v New York, supra.
(Citations and footnotes omitted.)
Federal Rules of Criminal Procedure, 11, has been amended and transmitted to Congress according to law to be effective August 1, 1974. As amended,
the rule requires that the court deter
mine "that the plea is voluntary and not the result of force or threats or of promises apart from a plea agreement”. It permits agreement for a plea to a lesser or related charge, or predicated on
dismissal of other charges, or with a promise that the prosecutor "will recommend or not oppose the imposition of a particular sentence, or will do both”. Further, "if a plea agreement has been reached * * * in the expectation that a specific sentence will be imposed * * * the court may accept or reject the agreement, or may defer its decision * * * until there has been an opportunity to consider the presentence report”. Finally, "if the court rejects the plea agreement, the court shall * * * advise the defendant personally * * * [and] afford the defendant the opportunity to then withdraw his plea * * * ”.
This procedure is essentially that which ABA Standards for Administration of Criminal Justice, Pleas of Guilty, recommends. The authors suggest that among appropriate considerations in determining a charge or sentence concession is "that the defendant has given or offered cooperation when such cooperation has resulted or may result in the successful prosecution of other offenders engaged in equally serious or more serious criminal conduct”. ABA Standards, Pleas of Guilty,
supra,
1.8(a)(v).
The courts of Michigan are bound by GCR 1963, 785 and court decisions and not by the Federal rules at present nor after August 1, 1974. However, our court rule contemplates plea agreements. Defendant cites no case that holds a plea induced by promise of a certain maximum sentence is involuntary. Negotiated pleas to reduced charges are common and approved. The sentence limit achieved by this defendant could have been accomplished by allowing him to plead to larceny from a person, a felony punishable by ten years imprisonment. When leniency is appropriate, it seems at least as permissible to have the expectation accomplished by a stated sentence concession as by
reduction of the charge to fit the sentence expectation. Defendant is primarily interested in the sentence not the charge, and should have less reason to complain about a sentence within the limits of his agreement. A plea to the charge with a sentence recommendation, binding the court to fulfill that recommendation or allow withdrawal of the plea, results in a conviction for the crime actually committed and acknowledged, and, if for some reason the plea is faulty, a trial after the plea is set aside will be upon a charge that the proofs will describe.
People v McMiller,
389 Mich 425, 434; 208 NW2d 451 (1973), holds:
"If the prescribed guilty plea procedure is observed in taking the plea, the conviction will stand. If the procedure is not observed, the conviction will be set aside and the defendant ordered tried on the charge to which the plea was offered.”
In this case, the guilty plea procedure (GCR 1963, 785.7) was observed. It can be said with respect to any negotiated plea that it was induced by the agreement; that is naturally and inevitably so whether the agreement was a charge reduction, dismissal of other charges or the expectation of a stated sentence concession. The existence of any such agreement does not make the plea involuntary. Frequently the agreement makes the plea not only voluntary but earnestly desired by the defendant. The conviction will stand.
Affirmed.
All concurred.