Summary
stating that a defendant must move to withdraw his or her plea in order to avoid waiving the right to challenge an imposed sentence
Summary of this case from People v. KennedyOpinion
Docket No. 151314.
Decided December 7, 1992, at 9:00 A.M.
Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Chief of Research, Training, and Appeals, and Jeffrey Caminsky, Assistant Prosecuting Attorney, for the people. Roman S. Karwowski, for the defendant.
Before: HOOD, P.J., and CONNOR and TAYLOR, JJ.
Defendant pleaded guilty in the Recorder's Court of Detroit of second-degree murder, MCL 750.317; MSA 28.549, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2), in exchange for the dismissal of a charge of first-degree murder, MCL 750.316; MSA 28.548. Pursuant to the parties' sentencing agreement, defendant was sentenced to a term of twenty to forty years plus the mandatory two years for the firearm conviction. He appeals as of right, arguing that the sentence is disproportionate and not individually tailored. We disagree and affirm.
The sentencing guidelines recommended a minimum term of twelve to twenty-five years. The minimum imposed on defendant was within the guidelines and is therefore presumptively proportionate. People v Milbourn, 435 Mich. 630; 461 N.W.2d 1 (1990); People v Broden, 428 Mich. 343; 408 N.W.2d 789 (1987).
Further, we note and emphasize that defendant received exactly the sentence to which he previously had agreed and may not now challenge that sentence, because he has made no effort to withdraw his plea. People v Vitale, 179 Mich. App. 420; 446 N.W.2d 504 (1989); see also People v Nixten, 183 Mich. App. 95; 454 N.W.2d 160 (1990). A bargain is indeed a bargain. Further, in this case, we have no claim of ineffective assistance of counsel nor any indication that the plea was in any way tainted or that the prosecutor in any way violated the terms of the agreement.
We therefore hold that a defendant who pleads guilty and is sentenced in accordance with a plea bargain and sentencing agreement waives the right to challenge the sentence unless there is also an attempt to withdraw the plea for a sound legal reason.
Affirmed.