Opinion
Docket No. 48842.
Decided June 8, 1981.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Conrad Sindt, Prosecuting attorney, and Michael J. Berezowski, Assistant Prosecuting Attorney, for the people.
Nora J. Pasman, Assistant State Appellate Defender, for defendant on appeal.
Pursuant to a plea bargain defendant pled guilty to unarmed robbery, MCL 750.530; MSA 28.798. Thereafter sentenced to a term of 7 to 15 years imprisonment, defendant appeals as of right.
On appeal it is defendant's claim that his plea must be set aside for failure of the trial court to establish a factual basis for the plea and further because of an alleged illusory plea agreement. With defendant's latter argument we agree and accordingly reverse.
Defendant's plea, in the instant case, was entered on September 25, 1979, which was subsequent to the Supreme Court's decision in People v Fountain, 407 Mich. 96; 282 N.W.2d 168 (1979). Evidence in the record reveals that the prosecutor was aware of two prior convictions of the defendant as early as July, 1979. We also note that Fountain, supra, was a case which arose in the same county as that in which the defendant was charged in this case. Certainly the prosecuting attorney should be charged with being aware of that court's decision in Fountain. Fountain, supra, held that a prosecutor who has knowledge of a defendant's prior felonies must file habitual offender charges promptly, if at all. Hence an information charging same should have been filed promptly after the prosecutor had knowledge of Fountain. Yet this was not done. In fact, it never has been filed. This is true in spite of the fact that the prosecutor stated that part of the agreement was that the people would not proceed upon the habitual offender information which had already been filed.
In People v Martin, 100 Mich. App. 447, 459; 298 N.W.2d 900 (1980), this Court held that, after Fountain, a habitual offender information will not be considered "promptly" filed unless it is filed at least prior to the initiation of any plea negotiations. The Court in Martin went on to say:
"Use of the threat of supplementation in plea negotiations will always, it seems to us, carry with it the appearance at least of an attempt by the prosecutor to coerce a guilty plea which may not otherwise have been offered. Fountain changes the previous law, therefore, in that in order to avoid even the appearance of prosecutorial impropriety it makes the Stratton/Hatt [People v Stratton, 13 Mich. App. 350; 164 N.W.2d 555 (1968), People v Hatt, 384 Mich. 302; 181 N.W.2d 912 (1970)] procedure mandatory in the sense that failure to follow it will preclude the prosecution from proceeding on an habitual offender charge even absent a showing of prejudice to the defendant resulting from delay in filing the supplemental information."
Since in this case no habitual offender information was ever filed, much less prior to the initiation of any plea negotiations, we accordingly set aside defendant's guilty plea and remand for trial.
Reversed and remanded.