People v. Killebrew
| Decision Date | 18 February 1983 |
| Docket Number | J,3,Docket Nos. 64397,Nos. 2,64398 and 64571,s. 2 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael Brian KILLEBREW, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Jerome BRIGGS, Defendant-Appellee. anuary Term 1981. Calendar |
| Court | Michigan Supreme Court |
William L. Cahalan, Pros. Atty., Terrance K. Boyle, Deputy Chief, Crim. Div., A. George Best, II, Asst. Pros. Atty., Detroit, for plaintiff-appellee in Nos. 64397 and 64398.
Culpepper & Sorise by Domnick J. Sorise, Detroit, Wendy R. Kyles, for defendant-appellant in Nos. 64397 and 64398.
Calhoun County Prosecutor's Office, John H. MacFarlane, Sr. Asst. Prosecutor, Battle Creek, for plaintiff-appellant in No. 64571.
State Appellate Defender Office by R. Steven Whalen, Asst. Defender, Sheila N. Robertson, Research Atty., Detroit, for defendant-appellee in No. 64571.
State Bar Defender Systems and Services Committee by F. Martin Tieber, Chairperson, Lansing, Criminal Defense Attorneys of Michigan by Thomas M. Harp, President, Detroit, for amicus curiae.
We granted leave to appeal in these two cases to address the issue of "whether sentencing disposition is an appropriate subject for plea agreement; and, if so, what is the proper role of the court with respect to a sentence agreement". 408 Mich. 958, 959 (1980). We recognize that "charge bargaining" is a traditionally accepted practice in Michigan. We now proceed to determine whether or not sentence bargaining will likewise be accepted and, if accepted, under what terms.
We hold that sentencing concerns are appropriate subjects for plea bargaining. However, we hold that the judge's role in plea negotiations, sentence bargaining included, is limited to consideration of the bargain between the defendant and the prosecutor. The judge may not become involved in the negotiation of the bargain. Finally, the defendant must be given the opportunity to withdraw his guilty plea if the judge rejects the proffered bargain or chooses not to follow the prosecutor's sentence recommendation.
We are appreciative of the helpful briefing of counsel, particularly the Wayne County Prosecutor.
Defendant Briggs was initially charged with armed robbery, M.C.L. Sec. 750.529; M.S.A. Sec. 28.797; assault with intent to do great bodily harm less than murder, M.C.L. Sec. 750.84; M.S.A. Sec. 28.279; and possession of a firearm during commission of a felony, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). Before trial commenced, the defendant and the prosecutor agreed that the defendant would plead guilty to the armed robbery count in exchange for (1) dismissal of the assault and firearm charges, (2) a recommendation by the prosecutor that the defendant receive no more than a 12- to 25-year sentence, and (3) the prosecutor's promise not to bring an habitual offender charge against the defendant.
The trial judge accepted the guilty plea but prefaced his acceptance with the warning that he was not bound by the sentence recommendation: "I will state I have not agreed upon the possibility of a plea or possible sentence in this case with anyone whomsoever, and I hereby accept your plea". (Briggs, Defendant-Appellee's Brief, p. 2).
At sentencing 18 days later, the trial judge again emphasized that he was not required to follow the prosecutor's sentence recommendation, repeated the recommendation of 12 to 25 years, and proceeded to sentence the defendant to 20 to 40 years imprisonment.
On appeal, the Court of Appeals held that the defendant should have been given the opportunity to withdraw his plea, once the judge decided not to follow the prosecutor's sentence recommendation. 94 Mich.App. 723, 726, 290 N.W.2d 66 (1980).
In November 1977, the defendant was charged with two unrelated charges of armed robbery. The defendant stood mute at the preliminary examination; the prosecutor's [Appellant's Brief, pp. 105a-106a]
office offered no reduced pleas. Pretrial conference commenced with the judge, the defendant, and defense counsel present; the prosecutor was absent. The judge proceeded as follows:
The trial judge then engaged in sentence negotiations with the defendant and his counsel and reached the agreement that if the defendant pled guilty he would receive a sentence of no more than 15 to 25 years on each count to run concurrently with whatever sentence the defendant would receive on a pending felony offense. The plea was entered in the presence of the defendant, his counsel, and an assistant prosecuting attorney. The judge then sentenced the defendant pursuant to his agreement. On appeal as of right, the Court of Appeals affirmed the defendant's convictions without opinion.
On June 20, 1980, this Court granted leave to appeal to the prosecutor in People v. Briggs, 408 Mich. 958 (1980), and to the defendant in People v. Killebrew, 408 Mich. 959 (1980).
No challenge is being directed today at the constitutionality of the practice of plea bargaining. In Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), the Supreme Court of the United States sanctioned its use, recognizing the pervasiveness of the practice and the advantages of the procedure for both the defendant and the state.
By all estimates, the practice of plea bargaining is even more pervasive today. As one commentator noted:
Langbein, Torture & Plea Bargaining, 46 U.Chi.L.Rev. 3, 9 (1978).
Given the prevalence of its use, it is not surprising that the Supreme Court of the United States has labeled plea bargaining "an essential component of the administration of justice". Santobello v. New York, 404 U.S. 257, 260, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971).
Of course, merely because the practice is deeply entrenched does not prove its value. The Supreme Court of the United States, however, has enumerated the benefits of the procedure.
Santobello, supra, 261, 92 S.Ct. at 498. See also Brady, supra, 397 U.S. at 752, 90 S.Ct. at 1471.
Thus, we begin with the premise that the general practice of plea bargaining withstands constitutional scrutiny and offers significant benefits to both the defendant and the state. Charge bargaining, a species of plea bargaining, has also been specifically approved by the Supreme Court of the United States, Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978),
and its practice is well-established in Michigan. See, e.g., Genesee Prosecutor v. Genesee Circuit Judge, 386 Mich. 672, 194 N.W.2d 693 (1972). We now, therefore, direct our attention to two other variations of the practice: sentence agreements and prosecutorial sentence recommendations.
Any inquiry into the parameters of plea bargaining must include an analysis of the mechanics. In essence, the practice involves the act of self-conviction by the defendant in exchange for various official concessions. Alschuler, Plea Bargaining and Its History, 13 Law & Society Review 211, 213 (1979). The state, in the persons of the prosecuting attorney and the judge, has at its disposal various concessions to induce the defendant's guilty plea.
The judge's bargaining strength clearly lies in his statutorily granted sentencing power, M.C.L. Sec. 769.1; M.S.A. Sec. 28.1072. Judges can use this power to offer reduced sentences in order to persuade defendants to plead guilty.
The prosecuting attorney's strength stems from his charging power and his ability to make a sentencing recommendation to the judge.
The prosecutor has various devices in his arsenal of concessions--first, charge bargaining. The prosecuting attorney may agree with the defendant to bring reduced charges or to dismiss certain charges or cases altogether. 1 Alternately, the prosecutor may file a supplemental information charging the defendant as an habitual offender. 2 Since, generally, the defendant has little interest in the title of his crime, the prosecuting attorney's bargaining power is his ability to circumscribe the judge's sentencing discretion by locking defendant's crime into a lower sentencing range. 3 The second device is sentence agreement. The prosecuting attorney, after conference with the defendant, may present to the court a sentence agreement stating that the parties agree that a specifically designated sentence is the appropriate disposition of the case. The court may either accept or reject the...
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