Opinion
Docket No. 66433.
Decided June 22, 1983. Leave to appeal applied for.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Deputy Chief, Civil and Appeals, and Mark J. Cavanagh, Assistant Prosecuting Attorney, for the people.
State Appellate Defender (by R. Steven Whalen), for defendant on appeal.
Before: BRONSON, P.J., and J.H. GILLIS and MacKENZIE, JJ.
Defendant pled guilty to second-degree murder, MCL 750.317; MSA 28.549, in return for the prosecutor's agreement to recommend a sentence of imprisonment for 8 to 15 years. Defendant received the recommended sentence and appeals by right.
Defendant, relying on People v Rogers, 412 Mich. 669; 316 N.W.2d 701 (1982), argues that his conviction must be reversed because the circuit court failed to inform him at the plea-taking proceeding that he could not be placed on probation. However, in People v Jackson, 417 Mich. 243; 334 N.W.2d 371 (1983), Rogers, and People v Jones, 410 Mich. 407; 301 N.W.2d 822 (1981), an analogous case dealing with a failure to inform defendant of a maximum or a mandatory minimum sentence, were overruled as they applied to cases where there is a sentence bargain and the defendant has been sentenced in accordance with the bargain.
The Jackson opinion contains no definition of the term "sentence bargain". However, in People v Killebrew, 416 Mich. 189, 206-207; 330 N.W.2d 834 (1982), the Court used the term "sentence bargain" to include both sentence agreements and sentence recommendations such as that which defendant obtained here. Moreover, the reasons of policy on which Jackson is based apply equally to sentence agreements and sentence recommendations. A defendant who receives a sentence within the range of the sentence recommendation has suffered no prejudice through the failure to inform him of the possible sentence consequences if the recommendation were not followed. An important aspect of the Jackson rule is that it applies only if the defendant was sentenced in accordance with the sentence bargain. A defendant who did not receive a sentence within the range of the sentence recommendation, who was not thereby entitled to withdraw his plea under the rule stated in Killebrew, supra, and who was not informed of the sentence consequences at issue in Jones or Rogers, would still be entitled to reversal of his conviction. However, where, as here, defendant received a sentence within the range of the sentence recommendation, reversal is not required.
Defendant also argues that an insufficient factual basis was elicited at the plea-taking proceeding to support his plea. In Guilty Plea Cases, 395 Mich. 96, 130; 235 N.W.2d 132 (1975), the Court held that a factual basis is sufficient to support a guilty plea if an inculpatory inference could be reasonably drawn by a jury from the facts admitted by the defendant even if an exculpatory inference could also be drawn and defendant asserts that the latter is correct. Defendant focuses on the element of second-degree murder formerly referred to as "malice", which can be shown by proof of an intent to kill, an intent to do great bodily harm, or a wilful and wanton disregard by the defendant of the likelihood that the natural tendency of his behavior is to cause death or great bodily harm. An inference of an intent to do great bodily harm could reasonably be drawn by a jury from defendant's admission that he hit his victim on the back of the head with a baseball bat.
Affirmed.