Opinion
Docket No. 51747.
Decided November 16, 1981.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert E. Weiss, Prosecuting Attorney, and Donald A. Kuebler, Chief, Appellate Division, for the people. Parker Buckley, for defendant.
Defendant pled guilty in the Genesee County Circuit Court to kidnapping, MCL 750.349; MSA 28.581. He was sentenced to serve a term of 10 to 20 years' imprisonment.
Defendant's primary claim on appeal is that the plea must be deemed involuntary due to the excessive intervention of the trial court into the plea-bargaining process. Defendant argues that his plea was a result of an impermissible "promise-threat" made by the trial court.
At a pretrial conference, the trial judge offered to sentence defendant to 10 to 20 years, if he pled guilty. Whether this offer was made originally by the court or originated as a sentence recommendation by the prosecutor is not clear on this record. Defendant refused to plead guilty and demanded a jury trial. Trial commenced on February 5, 1980. However, after trial began, and after a number of prosecution witnesses had testified, including the victim, defendant decided to reconsider his decision to go to trial. The jury was excused, and the possibility of defendant's offering a plea was discussed. Just prior to the taking of defendant's plea, the court stated:
"And, I had given, as I just said here in open court with you present, I had given three of the five that had gone through the previous trial a life sentence, which means there could be no consideration of parole before ten years are up. And, I had given Taxi and Crazy 10 to 20 years.
"And, I had indicated when we talked at an informal pre-trial conference, I indicated if you would plead I would give you 10 to 20. That would be the only offer I would make in terms of a sentence, do you understand that?"
We interpret this statement to mean that five co-felons were tried together, all were found guilty, three received life sentences, and two received terms of imprisonment of 10 to 20 years.
Defendant contends that the trial court's handling of his plea constituted an implicit "promise-threat" in which the court was pressuring him to plead guilty or receive a harsher sentence. While our conclusion might be different if the record supported the proposition that all of the co-felons who went to trial received life sentences, as we read the record, defendant knew that two of his five cohorts who went to trial received the same sentence he was being offered. Thus, we cannot agree that defendant only pled guilty to avoid a certain life sentence if he was convicted by the jury.
Defendant suggests that an implicit promise-threat atmosphere carried over from the pretrial conference through the presentation of the prosecution's case at trial and influenced his decision to plead guilty. We think it is more likely that, after the testimony of the victim, the defendant could see the writing on the wall and thus decided to plead guilty, taking a certain 10-year minimum sentence and avoiding the possibility of a much more severe sentence. If the so-called "promise-threat" really weighed oppressively on defendant's mind, he would have pled guilty before trial and not only after the complainant had testified. We believe the prosecutor and the trial judge gave defendant a break by not insisting on completion of the trial.
If the trial judge said anything which can be characterized as constituting a promise-threat, and we do not believe he did, we conclude that, just as in People v Earegood, 383 Mich. 82, 85; 173 N.W.2d 205 (1970), this statement was not what induced the plea of guilty. Instead, the complainant's testimony and defendant's knowledge that five co-felons had already been convicted for their parts in this abhorrent incident constituted the catalysts which induced the plea.
Defendant also asserts that his conviction must be reversed because the trial court failed to tell him about the consequences of a guilty plea when previous felony convictions, probation or parole are involved. In response to the court's queries, defendant stated that he was neither on probation nor parole and that he had no prior felony convictions. Appellate counsel acknowledges that defendant's responses were correct. In Guilty Plea Cases, 395 Mich. 96, 119; 235 N.W.2d 132 (1975), in a matter involving similar facts, the Supreme Court resolved this very issue adversely to defendant's contention. See, also, People v Lendzian, 80 Mich. App. 323; 263 N.W.2d 360 (1977).
Affirmed.
R.M. DANIELS, J., concurred.
I concur in the result reached by Judge BRONSON. I write only to express some discomfiture with the extent to which the trial court participated in the plea-bargaining scenario here. Defendant's appellate brief states:
"Lance was given the message loud and clear by the person from whom the sentence would come that a plea would result in 10 to 20, but if the trial continued, any number of years up to life was a clear possibility."
If that were the case, then the promise-threat scenario referred to in People v Earegood, 12 Mich. App. 256; 162 N.W.2d 802 (1968), rev'd on other grounds 383 Mich. 82; 173 N.W.2d 205 (1970), would become ostensible precedent for reversal.
Since Earegood, supra, this Court has continued to express its disapproval of the trial court's indiscriminate participation in the plea-bargaining process. People v Dixon, 103 Mich. App. 518, 524; 303 N.W.2d 32 (1981), People v Mathis, 92 Mich. App. 670, 674-675; 285 N.W.2d 414 (1979), People v Bennett, 84 Mich. App. 408, 413; 269 N.W.2d 618 (1978), lv den 405 Mich. 835 (1979). In Mathis, supra, 674-675, this Court wrote:
"This case presents a good example of difficulties which can arise when a trial judge actively participates in the plea bargaining process. We have said in dicta that trial courts should not actively participate in plea bargaining negotiations. People v Bennett, 84 Mich. App. 408; 269 N.W.2d 618 (1978), lv den 405 Mich. 835 (1979). We are well aware that in an overburdened high-crime population center trial courts are disposed to accept plea bargains involving favorable sentence considerations to defendants in advance of trial. Our concern is with the extent of the trial judge's participation in such negotiations. This Court favors a nonparticipatory, passive approach to the plea bargaining process on the part of the trial bench. The trial judge should be called upon in open court to approve the plea bargain reached by the adversaries, but should not be the instigator of, nor the conduit for, negotiations. A defendant's right to trial is sacrosanct and his judge must be, and appear to be, impartial."
Either the active participation in plea bargaining is poor judicial practice or it is not. I think it is poor practice. I think a sentence offer made by a trial judge at a pretrial conference in exchange for defendant's plea of guilty is coercive and should be discouraged. It carries an implied threat that, if he does not plead and is later found guilty, he will receive a harsher sentence. In cases where such a practice is supported by the record, I think reversal is required. Until the Supreme Court speaks to this issue, I think that trial judges would be well advised to follow Mathis, supra, and Bennett, supra.
In the case at bar, it is not clear that such a threat was made by implication or otherwise. This case was assigned to the trial court because three cases arising out of the same facts were handled by the same judge. It should be noted that the crime for which this defendant was convicted involved the kidnapping of a victim and then transporting her into a motorcycle club where some 14 or 15 hooligans participated in criminal sexual misconduct on the victim. How many cases were actually tried or pleas taken arising out of that misconduct before this case neither the record nor the briefs reveal. We do know that five co-defendants were sentenced, but that is all that is supported by the record.
Prior to trial, a pretrial conference was held but no pretrial summary is contained in the file. However, an unsigned handwritten note does appear stating, "no offers — will go to trial — prosecutor will furnish conviction records of nonpolice witnesses". During the plea proceedings, the trial judge mentioned a trial of a number of co-defendants. He stated that three co-defendants were sentenced to life while two received 10- to 20-year sentences. It is not clear from the transcript whether the two co-defendants who were sentenced to lesser terms had pled guilty. If this were the case, it could be seen as a threat that, if defendant continued with his trial, the judge would sentence him to life if he were found guilty. This would be unacceptable intrusive participation in the plea-bargaining process by the trial judge. However, because the record reflects no such scenario and no motion to set aside the plea on such grounds was made, I concur in the affirmance of defendant's conviction.