People v. Ceteways

• Decision Date: 27 April 1987
• Docket Number: Docket No. 88773
• Citation: 156 Mich.App. 108,401 N.W.2d 327
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Kajana CETEWAYS, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 327

401 N.W.2d 327

156 Mich.App. 108

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Kajana CETEWAYS, Defendant-Appellant.

Docket No. 88773.

Court of Appeals of Michigan.

Submitted Sept. 4, 1986.

Decided Nov. 4, 1986.

Released for Publication March 9, 1987.

Leave to Appeal Denied April 27, 1987.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., L. Brooks Patterson, Pros. Atty., Robert C. Williams, Chief, Appellate Div., and Richard H. Browne, for the People.

Gerald M. Lorence, Detroit, for defendant-appellant on appeal.

Before KELLY, P.J., and BEASLEY and CYNAR, JJ.

BEASLEY, Judge.

Defendant, Kajana Ceteways, pled guilty, pursuant to a plea-bargain agreement, to armed robbery, M.C.L. Sec. 750.529; M.S.A. Sec. 28.797, and to possession of a firearm during the commission of a felony, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). The Oakland Circuit Court sentenced defendant to the mandatory two years in prison on the felony-firearm conviction and to not less than fifteen nor more than thirty years in prison on the armed robbery conviction, the two sentences to be served consecutively. Defendant was given credit for 215 days already served. Defendant appeals as of right.

In addition to the charges to which he pled guilty, defendant was originally charged with assault with intent to commit murder, M.C.L. Sec. 750.83; M.S.A. Sec. 28.278. The assault charge was based on the fact that codefendants Richard and Jimmy Lee Carter had shot at police from their car while Ceteways was driving them away from the scene of the robbery. In the course of the robbery itself, the victim was badly cut in the neck, but this was not alleged in the assault information. Trial on all three counts was scheduled for December 3, 1984. On November 29, 1984, just prior to trial, defendant pled guilty in exchange for the prosecutor's agreement to dismiss the assault charge. The prosecutor made the following statement regarding the plea bargain:

"Your Honor, it's a result of our investigation that Mr. Ceteways was driving the car when the assault with intent to murder took place and that it was plainly Richard Carter, also Jimmy Carter who fired the shots at the police officers. Pursuant to conferring with the officer in charge, he's agreed that Mr. Ceteways should be proceeded upon against the armed robbery charge and the possession of firearm during the commission of a felony and that since he did not fire any shots at the officers, that we would not proceed upon him on the Assault with Intent to Murder as an aider and abettor, should he plead guilty to the Armed Robbery and Possession of a Firearm. Therefore, that's the sum and substance of any plea negotiations. If he pleads guilty as charged to Armed Robbery, Possession of a Firearm we will not proceed against him on the Assault with Intent to Murder since he did not fire the shots and that is the only part of the agreement should the court accept his pleas to the Armed Robbery and Felony Firearm."

Before the trial judge questioned defendant regarding his plea, defendant's attorney, Richard Monash, said:

"[MR. MONASH:] Mr. Ceteways has been fully, thoroughly advised of his rights. He knows full well that there's a trial date scheduled for Monday morning, that each and every witness that he requested has now been subpoenaed, served and is available for Monday morning. However, after extremely involved and lengthy discussion with my client, he's indicated to me it is his desire to offer the plea as outlined in that form.

"THE COURT: Is that correct?

"MR. CETEWAYS: Yes, sir, Your Honor."

Defendant told the court that he had signed the plea form, that the answers were truthful, that he had gone over it with his attorney, and that he was freely and voluntarily pleading guilty. The usual colloquy concerning waiver of rights and sentencing took place and defendant described the details of the offense.

There were two different hearings at which sentences were pronounced. The first took place on January 24, 1985. At that hearing, defendant addressed the court as to his good prior record and his remorse. The prosecutor then gave his view of the facts, including the following:

"It is the feeling of the victim and police officers involved that while Mr. Ceteway [sic] might not be as active in the assault as the Carters were, but he was the one that devised the plan and organization. Certainly there's a strong feeling that he's as guilty as all in this incident in which Mr. Norman was nearly killed; his neck was cut and came within millimeters of severing his carotid artery. It's almost a felony murder, Your Honor. The Court should take that into consideration and this man did play an equal part and certainly deserved the fate of the others."

Defense counsel addressed the court, reminding the court that the assault charge had been dismissed, and that "the facts of this case indicate my client is not guilty of any assaultive conduct." He stressed that Ceteways was primarily a driver and nothing else. He also stressed that defendant's record for thirty-seven years had been spotless, that he had been an aid to the police in riot control and neighborhood education, and that this one afternoon was in stark contrast to the rest of his life. He pointed out that the sentencing guidelines suggested a minimum sentence of between thirty-six and seventy-two months for defendant and said that, under the circumstances, those guidelines were realistic.

The court then discussed the probation department's recommendation of not less than twenty nor more than eighty years with Thomas Bell, a probation officer. When asked why the recommendation was so much higher than the guidelines, Bell responded:

"The discussion at the time was that of the seriousness of the offense and the fact that the victim was injured to the extent that he could have been killed and also that the police officers were fired upon, could have been seriously injured or killed during the police chase. It had a lot to do with the recommendation made by the Panel that it was an extremely serious offense and everyone concurred that all three defendants were involved to the extent that they deserved the sentence as recommended by the Panel."

Defense counsel responded that the probation department should not hold defendant responsible for the assaultive crime once the assault charge had been dismissed. Defendant himself expressed confusion at the prosecutor's and Mr. Bell's allegations concerning his responsibility for the assault, saying:

"[MR. CETEWAYS]: Now it appears as if I'm going to be sentenced because I'm supposed to have shot at the police. I [sic] supposed to have had something to do with the man being cut.... I really don't understand this, you know. My attorney had talked to me and he explained to me that I'm up here on charges of Armed Robbery and Felony Firearm. And now it appears that the Prosecutor is saying that this man is responsible for shooting at police officers, which I never did and I really don't understand this.

"THE COURT: Well of course, the law does say that you are just as responsible as the people that you committed the crime with and when you embark upon something like an armed robbery, you take the consequences.

"MR. MONASH: To that extent, Your Honor, he obviously when he took the plea, he recognized the responsibility in that regard and he accepted it as being an aider and abettor in the armed robbery."

Opining that the guidelines were too lenient in this case, the trial judge sentenced defendant to not less than fifteen nor more than eighty years in prison, a sentence which was "a little bit more lenient" than that given to the codefendants. He also imposed the mandatory two-year sentence for felony-firearm and gave defendant credit for 202 days served. Defendant stated his intention to appeal.

Immediately following, the codefendants were sentenced to twenty to eighty years and twenty-three to eighty years, plus the mandatory two-year sentence for felony-firearm. At this point, all three defendants said that they would like to read their presentence reports, which they had thought were supposed to be updated. Counsel had read the reports, but defendants had not. Ceteways said that he wished to read the updated report if that was the correct procedure. His counsel said that since the current report was identical to the most recent, prior report which the two of them had reviewed together, there was no need. In view of the obvious confusion, the court determined to get an update of the presentence reports and have defendants read them. As to defendant, the following conversation took place:

"THE COURT: Are you asking that you have an updated presentence report?

"MR. LUMBERG: For the record, Eugene Lumberg, on behalf of--

"THE COURT: (interjecting) Just a minute. Are you?

"MR. CETEWAYS: I don't know.

"THE COURT: We'll adjourn it one week and I'll have an update. Can you do an update by next Thursday?

"PROBATION DEPARTMENT: Yes, Your Honor.

"THE COURT: Have him brought back next Thursday for sentencing."

The court then stressed that the reports should be read by all the defendants prior to the next hearing:

"It is your obligation gentlemen to show these reports to your clients and I expect by the time that they stand here to be sentenced two weeks from today you will have shown them the report; all the reports in the file relating to your clients."

Finally, defendant appears to have asked whether his sentence could commence immediately, instead of waiting for the update:

"MR. CETEWAYS: I'm not familiar with this. What I was wondering is, the sentence, I could go ahead on with it, get it over with and I'm interested in seeing the P.S.I. I came over here today to be sentenced.

"THE COURT: Mr. Ceteway [sic], I'll delay it two weeks. We'll have an update and you're going to read it. Have a seat."

On February 6, 1985, the date scheduled for resentencing, defe...