Opinion
Docket No. 58783.
Decided November 9, 1982.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Larry L. Roberts, Assistant Prosecuting Attorney, for the people.
State Appellate Defender (by Herb Jordan), for defendant on appeal.
On January 30, 1978, defendant pled guilty to two counts of second-degree murder, MCL 750.317; MSA 28.549, and was sentenced to life imprisonment. He appealed as of right. On February 6, 1981, this Court affirmed his conviction but remanded for a resentencing. He was again resentenced to life imprisonment. He again appeals as of right.
Defendant had originally been charged with two counts of felony murder. At defendant's plea, the following exchange took place:
"Court: If you plead guilty to murder in the second degree and if you do[,] the maximum sentence that you can get is any number of years up to and including life imprisonment. I had some discussion with your counsel and with the prosecutor and your counsel told me that you would prefer, in the event I accept your plea and subject to seeing the probation report, that you be given a straight life sentence in the hopes that you might be eligible for parole at the expiration of ten years. But, that if it was otherwise left to me to sentence you, you might not be eligible for parole for a period of more than ten years. Is that your thinking in the matter?
"Mr. Simmons: Yes, sir.
"Court: And is that why you would like to have a sentence of straight life, is that right?"
On appeal, this Court stated:
"Defendant apparently believed that if he was sentenced to life he would automatically be eligible for parole in ten years, whereas, if he was sentenced to a term of years he might not be eligible for parole for more than ten years.
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"Under these statutes, it is clear that even if defendant had been given a long indeterminate sentence he would still have been eligible for parole after ten years. Thus, the judge erred in stating `[I]f it was otherwise left to me to sentence you, you might not be eligible for parole for a period of more than ten years.' In addition, as defendant points out, [MCL 791.233(b); MSA 28.2303(b)] allowed a person with an indeterminate sentence to be considered for a special parole prior to the expiration of ten years, upon the approval of the sentencing judge. A special parole was not available for those receiving life sentences.
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"Since both the trial judge and defense attorney not only misstated but over-valued the consequences to defendant if he accepted the proposed sentence `bargain', we remand this case for resentencing."
Defendant now argues that the second sentencing judge erred in giving him life imprisonment. We agree.
People v Cohens, 111 Mich. App. 788; 314 N.W.2d 756 (1981), is analogous. There, the defendant was given life imprisonment after pleading guilty to two counts of second-degree murder. The trial judge believed that the defendant would in fact be eligible for parole. However, Proposal B precluded the parole board from ever giving defendant parole. This Court first quoted from People v Penn, 102 Mich. App. 731, 734; 302 N.W.2d 298 (1981):
"Where a defendant's plea is induced by promises of leniency in sentencing, the promise is later broken, `the conviction will be reversed and the defendant will be allowed to withdraw the plea, or else the promise will be specifically enforced'. People v Nickerson, 96 Mich. App. 604, 607; 293 N.W.2d 644 (1980). The same result is required where the record reveals no other reason for a plea than a reduced sentence and where the court clearly intended that a shorter sentence be served." (Emphasis in original.)
Cohens then ordered specific performance:
"The trial judge and the prosecutor, on appeal, have stated their desire and intent that defendant be sentenced to parolable life terms. Because the Department of Corrections cannot presently honor that intent, defendant's sentences for second-degree murder are vacated and the case is remanded for resentencing. In order to effectuate the trial court's intent, defendant may now be resentenced to a minimum of 10 years and a maximum of x number of years greater than 15 and less than life." 111 Mich. App. 788, 795.
The trial judge intended to sentence defendant to the more lenient of two possible sentences: life or a term of years. As it turns out, the life sentence was not more lenient than a sentence of a term of years. If defendant is sentenced to a term of years he will be eligible for special parole sooner than if he is sentenced to life imprisonment. Because one of the main reasons for defendant's pleading guilty was the sentencing concession, we believe that he did not receive his benefit of the bargain at the new sentencing. Therefore, we remand this case for a new sentencing and direct the trial judge to give him a sentence of a term of years.
Reversed and remanded, we do not retain jurisdiction.