Oakland County Prosecutor, In re

• Decision Date: 03 September 1991
• Docket Number: Docket Nos. 124704,129651
• Parties: In re OAKLAND COUNTY PROSECUTOR. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph FELICE, Defendant-Appellant. OAKLAND COUNTY PROSECUTOR, Plaintiff, v. OAKLAND COUNTY JUDGE, Defendant.
• Court: Court of Appeal of Michigan — District of US

Page 455

477 N.W.2d 455

191 Mich.App. 113

In re OAKLAND COUNTY PROSECUTOR.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph FELICE, Defendant-Appellant.

OAKLAND COUNTY PROSECUTOR, Plaintiff, v. OAKLAND COUNTY JUDGE, Defendant.

Docket Nos. 124704, 129651.

Court of Appeals of Michigan.

Submitted Oct. 10, 1990, at Detroit.

Decided Sept. 3, 1991, at 9:10 a.m.

Released for Publication Dec. 16, 1991.

Frank J. Kelley, Atty. Gen., Gay Secor Hardy, Sol. Gen., Richard Thompson, Pros. Atty., Robert C. Williams, Chief, Appellate Div., and Paul J. Fischer, Asst. Pros. Atty., for the People.

Googasian, Hopkins, Hohauser & Forhan by George A. Googasian, Birmingham, for Judge Schnelz.

Tucker & Rolf, by Donald F. Tucker, A. William Rolf and Kevin M. Taylor, Southfield, for Joseph Felice.

Before SHEPHERD, P.J., and GRIBBS and JANSEN, JJ.

GRIBBS, Judge.

This matter involves two consolidated actions. In Docket No. 124704, the Oakland County Prosecutor seeks an order of superintending control directed to Oakland Circuit Judge Gene Schnelz, alleging error in the December 4, 1989, ruling that defendant Joseph Vincent Felice was entitled to withdraw his 1984 pleas of guilty to eight different charges. Judge Schnelz' ruling followed a Ginther ¹ evidentiary hearing pursuant to a Supreme Court order. In Docket No. 129651, defendant appeals by leave granted Oakland Circuit Chief Judge Steven Andrews' January 25, 1990, order denying defendant's motion to disqualify Oakland Circuit Judge Richard Kuhn.

This case has a lengthy procedural history. Defendant was originally charged in sixteen separate informations with thirteen counts of armed robbery, M.C.L. Sec. 750.529; M.S.A. Sec. 28.797, two counts of assault with intent to rob while armed, M.C.L. Sec. 750.89; M.S.A. Sec. 28.284, one count of unarmed robbery, M.C.L. Sec. 750.530; M.S.A. Sec. 28.798, one count of breaking and entering, M.C.L. Sec. 750.110; M.S.A. Sec. 28.305, and one count of prison escape, M.C.L. Sec. 750.193; M.S.A. Sec. 28.390. Two attorneys, Donald A. Brown and Otis Underwood, were appointed to represent defendant. Each attorney was assigned to handle the charges in eight different informations.

Pursuant to a plea-bargain agreement, defendant pleaded guilty to six counts of armed robbery, one count of assault with Defendant then moved in the circuit court to withdraw his pleas, claiming that they were involuntary and induced by the prosecutor's promise to refrain from making a sentence recommendation. On March 31, 1986, Judge Kuhn denied defendant's motion. Judge Kuhn's ruling on this issue was based on the plea transcript, which contained no reference to any sentencing agreement and contained defendant's assertion that no additional promises had been made. In addition, defendant raised no objection at sentencing to the presentence investigation report, which contained the prosecutor's recommendation of a twenty- to forty-year sentence.

intent to rob while armed, and one count of prison escape. Defendant was represented by Brown in half the pleas and by Underwood in the other half. Under the terms of the agreement, the remaining charges were dismissed. In addition, the prosecutor agreed not to pursue investigation of several suspected offenses. Defendant was sentenced to concurrent terms of twenty to forty years for each of the armed robbery convictions, ten to forty years for the assault [191 Mich.App. 116] with intent to rob while armed conviction, and one to five years for the prison escape conviction. Defendant appealed as of right, and his convictions and sentences were affirmed by this Court. Unpublished opinion per curiam of the Court of Appeals, decided April 8, 1985 (Docket No. 78611). Our Supreme Court denied defendant's delayed application for leave to appeal. 424 Mich. 853 (1985).

Defendant sought leave to appeal, which this Court denied. Unpublished order of the Court of Appeals, entered October 27, 1986 (Docket No. 92039). Defendant again filed a delayed application for leave to appeal to the Supreme Court, and, on March 31, 1987, the Court remanded the case to the circuit court for an evidentiary hearing and to "reconsider the defendant's motion to withdraw his guilty pleas". 428 Mich. 875, 402 N.W.2d 471 (1987).

At that hearing before Judge Kuhn, Underwood testified that he did not recall any offer by the prosecutor, but that his experience was that the prosecutor's office did not get involved in sentencing. He did not tell defendant that there was any "promise" regarding sentencing. Underwood said the concept of the prosecutor entering into the sentencing decision was never an issue and that he did not recall discussing it with defendant. Underwood told defendant that it was his "considered opinion" that defendant might get a six-year minimum sentence, but that it was just a "guess." Underwood recommended that defendant accept the plea offer "because there wasn't much alternative."

Defendant testified that he was aware of his guilt, but hoped for leniency. Defendant felt he was "assured" that Judge Kuhn would stay within the sentencing guidelines. The guidelines minimum range was, in fact, ten to twenty years, and defendant was sentenced to a minimum sentence within the guidelines range. The guidelines recommendation was undoubtedly due in part to defendant's prior record of ten felony and four misdemeanor convictions.

At the conclusion of the hearing, Judge Kuhn, in a seven-page written opinion, found that defendant's pleas were voluntary and denied his motion to withdraw the pleas. Judge Kuhn noted that both defense attorneys had "extensive experience in trying criminal matters before this Court. In fact, Mr. Brown has been practicing criminal law for over twenty-five years and Mr. Underwood for approximately thirteen years." This Court denied the defendant's application for leave to appeal Judge Kuhn's decision. Unpublished order of the Court of Appeals, entered April 26, 1988 (Docket No. 103141). Defendant again filed an application for leave to appeal to the Supreme Court, which reviewed the matter and, in lieu of granting leave, "remanded for a new hearing before a different judge on the question of ineffective assistance of counsel." 432 Mich. 871, 435 N.W.2d 752 (1989).

The second evidentiary hearing was held before Judge Schnelz. Defendant testified that he was "assured" that Judge Kuhn would sentence him to a minimum sentence within the guidelines range, which defendant Underwood testified that, on the basis of his experience, he had believed defendant would get a lenient sentence, but that he had told defendant that the judge would be the one to decide the length of his sentence. Underwood testified that he had not mentioned the possibility of a prosecutorial recommendation to defendant, because he had not expected the prosecutor to make a recommendation. Underwood testified that he had told defendant he was guessing that the minimum sentence would be between six and ten years and that the prosecutor's guess was similar, but that it was up to the judge. ² Underwood also stated that he had told defendant that he "could be wrong" and that defendant could have drawn the conclusion that the prosecutor would stay out of the sentencing process.

mistakenly believed to be six to ten years.

Judge Schnelz delivered a twelve-page written opinion in which he found that defendant's pleas were induced by his belief that the prosecutor would stay out of the sentencing process. Judge Schnelz concluded that defendant had received ineffective assistance of counsel:

The foregoing testimony clearly established that, although the prosecutor never actually promised to refrain from making a sentence recommendation, that [sic] Mr. Underwood assumed the prosecutor would do so. Based on his own assumption Mr. Underwood lead [sic] Defendant to believe, and Defendant did in fact believe that the prosecutor would not make a recommendation. The testimony also established that Defendant relied on that belief in entering his pleas of guilty.

The evidence demonstrates that Defendant's plea was based on a misrepresentation (albeit an apparently innocent misrepresentation) by his attorney of the terms of the plea bargain. The misrepresentation was both significant and prejudicial to Defendant since it was a primary consideration in his decision to plead guilty. Since Defendant's attorney failed to effectively convey to him all the terms of the plea bargain on which his guilty plea was based, Defendant did not receive effective counsel under either legal standard.

At the hearing before Judge Kuhn, Mr. Underwood testified that he did not recall the prosecutor making a promise to abstain from making a sentence recommendation. Mr. Underwood also testified that he did not tell Defendant that any such promise was made. That testimony comports with the testimony given before this Court except that Mr. Underwood qualified his earlier testimony in two (2) significant ways. First, Mr. Underwood stated that the prosecutor never actually promised [not] to make a sentence recommendation but that he, himself, assumed it. Second, while he never expressly told Defendant that the prosecutor made such a promise, he conveyed that impression to the Defendant. It is those two (2) qualifications on which this Court relies in rendering this decision.

Furthermore, it is clear from the testimony that the prosecutor never promised to abstain from making a sentence recommendation and the Honorable Richard D. Kuhn never promised to give a lighter sentence.

ORDER

WHEREFORE, and for the foregoing reasons, it is hereby ordered that Defendant's motion to withdraw guilty plea is granted. [Emphasis changed.]

In their appellate briefs and at oral argument, the attorneys in this matter have argued at length concerning Judge Schnelz' findings of fact. We find that, even accepting Judge Schnelz' findings as true, defendant has not established ineffective...