Summary
In Holt not only did the prosecutor fail to acknowledge the agreement but on appeal stated the agreement to have been different and more restrictive than the agreement which was placed upon the record and acknowledged by defendant and his counsel.
Summary of this case from People v. YoungOpinion
Docket No. 25396.
Decided April 6, 1976.
Appeal from Recorder's Court of Detroit, John R. Murphy, J. Submitted March 2, 1976, at Detroit. (Docket No. 25396.) Decided April 6, 1976.
Andrew Holt was convicted, on his plea of guilty, of unarmed robbery. Defendant appeals. Remanded.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Patricia J. Boyle, Principal Attorney, Research, Training and Appeals, and Arthur N. Bishop, Assistant Prosecuting Attorney, for the people. Gage, Burgess Burgess, for defendant.
Before: D.E. HOLBROOK, JR., P.J., and McGREGOR and N.J. KAUFMAN, JJ.
As a result of apparent plea bargaining defendant pled guilty to the offense of unarmed robbery, MCLA 750.530; MSA 28.798. While a plea bargain was placed upon the record it was acknowledged only by the defendant and his counsel; no representative of the prosecuting attorney's office being present.
The nature of the plea agreement as ascertained from reviewing the plea-taking transcript was that in return for defendant's plea of guilty to unarmed robbery the original charge of armed robbery together with all other charges pending against defendant in the Recorders Court for the City of Detroit would be dismissed. The plea-taking transcript clearly reveals that there were in fact other charges pending against the defendant in said court.
On appeal the people argue that the defendant merely bargained away a possible life sentence in return for a sentence carrying a 15-year maximum and should not now be heard to complain. This is the totality of the prosecutor's understanding of the plea agreement as determined from his brief, his copy of a pretrial statement and his oral argument on appeal.
Based on the foregoing it is apparent that the prosecutor's understanding of the plea agreement is far different than the agreement which was placed on the record and verbally acknowledged by the defendant and his counsel. In fact, the agreement as stated by the prosecutor is far more restrictive than the agreement set forth in the record.
GCR 1963, 785.7(2) requires that any plea bargain between the prosecutor and the defendant be placed upon the record and "affirmatively acknowledged by the defendant, his lawyer, and the prosecutor". (Emphasis supplied.) Not only was the court rule not complied with but the prosecutor's absence from the plea taking rendered it impossible to be complied with.
In People v Head, 67 Mich. App. 678; 242 N.W.2d 485 (1976), a panel of this Court, in analyzing Guilty Plea Cases, 395 Mich. 96; 235 N.W.2d 132 (1975) (People v Crowder), said:
"As we read Crowder, supra, we believe that the Supreme Court's primary concern was in knowing what the plea bargain was and if it had been fulfilled. Although there is no allegation in this case that the plea bargain was not fulfilled since the plea agreement was not affirmatively acknowledged * * * we remand this case to the trial court to determine what the plea bargain was and if it has been fulfilled."
Because of the obvious inconsistency between what the prosecutor now claims the bargain to have been and what actually appears on the written record, not only is it impossible to determine what the plea bargain was but it is likewise impossible to ascertain if the agreement was fulfilled. We therefore remand this case to the trial court to determine the nature of the bargain and whether it was fulfilled.
The trial court shall hold an evidentiary hearing, within 30 days of the release of this opinion, to determine what the plea bargain was and whether it has been fulfilled. The trial court shall make its findings of fact which shall be transmitted together with the transcript of the hearing to this Court within 15 days of the hearing. Each party shall have 20 days thereafter to file such supplementary briefs as the party desires.
We retain jurisdiction. Remanded.