Summary
opining that "even if there had been a Cobbs agreement, defendant would no longer have been entitled to withdraw his plea because of his subsequent misconduct."
Summary of this case from People v. GooldyOpinion
SC: 164674 COA: 361190
01-12-2024
PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James Gerald GOOLDY, Defendant-Appellant.
Jackson CC: 17-005716-FH
Order
By order of January 4, 2023, the application for leave to appeal the June 14, 2022 order of the Court of Appeals was held in abeyance pending the decisions in People ? Posey (Docket No. 162373) and People ? Stewart (Docket No. 162497). On order of the Court, Posey having been decided on July 31, 2023, 512 Mich. 317, — N.W.2d —(2023), and Stewart having been decided on July 31, 2023, 512 Mich. 472, — N.W.2d — (2023), the application is again considered. Pursuant to MCR 7.305(H)(1), in lieu of granting leave to appeal, we REMAND this case to the Court of Appeals for consideration as on leave granted.
Viviano, J. (concurring).
The Court today remands this case to the Court of Appeals as on leave granted. That means that the Court of Appeals will address both issues raised by defendant. I agree that the Court of Appeals should consider defendant’s challenge to the proportionality of his sentence under People ? Posey, 512 Mich. 317 (2023). Posey was decided after the Court of Appeals denied leave in the present case, and thus reconsideration in light of Posey is warranted. I write to express my doubts that defendant can prevail on his second issue: that he should have been sentenced by Judge Thomas D. Wilson, who entered judgment on defendant’s plea of guilty to the underlying charges.
While Judge Wilson handled defendant’s plea and indicated he was likely to sentence defendant to probation, there was no formal Cobbs agreement entitling defendant to withdraw his plea unless he received an agreed-upon sentence. See People v Cobbs, 443 Mich. 276, 505 N.W.2d 208 (1993). On the date for sentencing in front of Judge Wilson, defendant—who had a history of absconding—once again absconded and was later arrested. When sentencing was rescheduled, Judge Wilson was unavailable on medical leave, and thus defendant was sentenced by Judge Edward J. Grant to a sentence within the guidelines range of 8 to 20 years in prison.
Defendant contends it was reversible error to be sentenced in front of Judge Grant rather than the judge who took the plea, Judge Wilson. Although the Court of Appeals denied defendant’s application for leave to appeal, Judge Shapiro dissented. He wrote that, because defendant relied on Judge Wilson’s statements about probation being the likely sentence, "fundamental fairness as well as the appearance of fairness require that he be resentenced and that Judge Wilson impose the sentence."
I believe a strong argument exists that defendant cannot obtain relief on this issue. Our court rules provide for just this situation: "If a judge ... for other good cause cannot undertake an assigned case, the chief judge may reassign it to another judge by a written order stating the reason." MCR 8.111(C)(1). Under current Court of Appeals caselaw, reassignment can be appropriate in the present circumstances: " ‘[A] defendant is entitled to be sentenced before the judge who accepts the plea, provided that judge is reasonably available.’ " People ? Bennett, 344 Mich App 12, 19 (2022), quoting People ? Robinson, 203 Mich App 196, 197, 511 N.W.2d 713 (1993). There appears to be no dispute here that Judge Wilson was not reasonably available. As such, it is unclear how defendant can prevail under the court rule or Bennett. This is particularly so where, as here, defendant could have been sentenced in front of the plea-taking judge had he not absconded.
Moreover, as Bennett itself recognized, the rule recognized in that case is on shaky ground, relying largely on summary orders from this Court that provided no analysis or insight. Bennett, 344 Mich App at 17-18 (discussing, inter alia, the orders in People v Clark, 408 Mich 945, 295 N.W.2d 482 (1980), and People ? Clemons, 407 Mich. 939, 291 N.W.2d 927 (1979)). As the Court of Appeals put it: And so a legal concept was born without any identified constitutional or statutory basis.
In the ordinary course of things, the pronouncement of a concept seemingly created out of whole cloth is closely followed by promulgation of a court rule that formally states the concept in a manner that provides clear guidance to the bench, bar, and litigants. Alas, we have searched in vain for a court rule or statute that recognizes and defines a right to be sentenced by the judge who took the guilty plea. [Bennett, 344 Mich App at 18.]
In an appropriate case, I would consider whether the rule in Bennett is sound. See also People ? Cruz, 511 Mich. 995, 997, 991 N.W.2d 186 (2023) (Viviano, J., concurring) (noting the Bennett Court’s doubts about the origins of this rule and stating that I would decline to extend the rule). In arguing for resentencing in front of the pleataking judge, Judge Shapiro appealed to vague notions of "fundamental fairness" but failed to cite any legal authority in support of his view. I am aware of no caselaw suggesting that a defendant who fails to appear for sentencing has a constitutional or other right, once he is later apprehended, to delay his sentencing until his preferred judge returns from a medical leave or to withdraw his plea. Certainly, nothing in Bennett supports that view. Indeed, even if there had been a Cobbs agreement, defendant would no longer have been entitled to withdraw his plea because of his subsequent misconduct. See MCR 6.310(B)(3).
Furthermore, depending on the length of the delay, adjourning sentencing to wait for a judge who is out on medical leave to return could create due process concerns, see Betterson V Montana, 578 U.S. 437, 439-440, 136 S.Ct. 1609, 194 L.Ed.2d 723 (2016), which a defendant could harbor as an appellate parachute.
For these reasons, I believe a strong argument exists that defendant is not entitled to resentencing in front of Judge Wilson. But, because this case is already being sent back to the Court of Appeals for reconsideration in light of Posey, I do not object to the Court’s full remand including the Bennett issue.