People v. Cohens, Docket No. 53138

• Decision Date: 28 January 1982
• Docket Number: Docket No. 53138
• Citation: 111 Mich.App. 788,314 N.W.2d 756
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Vernard COHENS, Defendant-Appellant. 111 Mich.App. 788, 314 N.W.2d 756
• Court: Court of Appeal of Michigan — District of US

Page 756

314 N.W.2d 756

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Vernard COHENS, Defendant-Appellant.

Docket No. 53138.

111 Mich.App. 788, 314 N.W.2d 756

Court of Appeals of Michigan.

Submitted Sept. 15, 1981.

Decided Dec. 15, 1981.

Released for Publication Jan. 28, 1982.

[111 MICHAPP 790] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Principal Asst. Pros. Atty., Appeals, and Janice M. Joyce, Asst. Pros. Atty., for the People.

Lynn Chard, Asst. State Appellate Defender, Detroit, for defendant-appellant on appeal.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., and Stephen F. Schuesler, Asst. Atty. Gen., for amicus curiae.

Before RILEY, P. J., and GILLIS and MAHER, JJ.

J. H. GILLIS, Judge.

Defendant was charged in separate informations with two counts of first-degree murder, M.C.L. § 750.316; M.S.A. § 28.548, and two counts of possession of a firearm during the commission of a felony, M.C.L. § 750.227b; M.S.A. § 28.424(2). Pursuant to a plea-bargain and sentence agreement,[111 MICHAPP 791] defendant pled guilty to two counts of second-degree murder, M.C.L. § 750.317; M.S.A. § 28.549, and two counts of felony-firearm. Prior to tendering his pleas, defendant was advised by the court that upon his pleas of guilty he would be sentenced to the mandatory two-year term on each felony-firearm conviction, to run consecutively, followed by a term of life imprisonment on each second-degree murder conviction, to run concurrently. On October 10, 1979, defendant was sentenced in accordance with the above agreement.

On February 4, 1980, defendant's appellate counsel filed a motion for new trial. The motion cited OAG 1979, No 5583 (October 16, 1979), which ruled that Proposal B, M.C.L. § 791.233b; M.S.A. § 28.2303(3), precludes parole consideration under M.C.L. § 791.234; M.S.A. § 28.2304 (commonly known as the "lifer law"), for any prisoner serving a life term for one of the crimes enumerated in Proposal B. Defendant argued in the trial court that his pleas were involuntary and unintelligently made because he was not informed that nonparolable life sentences would be imposed, that his pleas were illusory because he was denied the benefit of his plea bargain, and, alternatively, that he was entitled to be resentenced because the sentencing judge was unaware of the effect of Proposal B on life sentences.

On June 25, 1980, the trial court entered an order denying defendant's motion for new trial and finding that Proposal B did not operate to preclude parole consideration under the lifer law for persons serving life sentences.

Proposal B is an initiated law ratified by the people of Michigan in the general election held November 7, 1978. Designated as M.C.L. § 791.233b; M.S.A. § 28.2303(3), it provides in part:

[111 MICHAPP 792] "A person convicted and sentenced for the commission of any of the following crimes shall not be eligible for parole until the person has served the minimum term imposed by the court which minimum term shall not be diminished by allowances for good time, special good time, or special parole."

Proposal B contains a list of crimes which includes second-degree murder, M.C.L. § 791.233b(N); M.S.A. § 28.2303(3)(N). ¹

M.C.L. § 791.234(4); M.S.A. § 28.2304(4) provides:

"A convict who is imprisoned in a prison or reformatory of this state under sentence for life or for a term of years, other than prisoners sentenced for life for murder in the first degree and prisoners sentenced for life or for a minimum term of imprisonment for a major controlled substance offense, who has served 10 calendar years of the sentence, shall be subject to the authority and jurisdiction of the parole board and may be released on parole in the discretion of the parole board, subject to the conditions set forth in this subsection. A parole shall not be granted a convict so sentenced and so imprisoned until after a public hearing held in the manner prescribed for pardons and commutations in sections 44(c) to (e) and 45. Notice of the public hearing shall be given to the sentencing judge, or his successor in office, and parole shall not be granted if the sentencing[111 MICHAPP 793] judge, or his successor in office, files written objections to the granting of the parole, which written objections shall be made part of the hearing. A parole granted under this subsection shall be for a period of not less than 4 years, and subject to the usual rules pertaining to paroles granted by the parole board. A parole ordered for a convict under this subsection shall not become valid until the transcript of the record is filed with the attorney general whose certification of receipt thereof shall within 5 days be returnable to the office of the parole board. The file of a convict granted a parole under this subsection shall be a public record as in the manner made and provided for pardons and commutations."

The Attorney General's opinion No. 5583 (Oct. 16, 1979), issued six days after the sentencing date in this case, construed Proposal B as precluding parole consideration for prisoners serving life sentences. The Attorney General found that since M.C.L. § 769.9; M.S.A. § 28.1081 provides that no minimum term of years may be set when life is the maximum, the minimum term imposed by the court in such cases is, in effect, life imprisonment. Since Proposal B provides that a prisoner's minimum sentence may not be diminished, the Attorney General concluded that M.C.L. § 791.234(4); M.S.A. § 28.2304(4) had no application to prisoners sentenced to life terms for Proposal B crimes.

In the present case, there was no reference made during the plea or sentence proceeding as to whether defendant's life sentences would be parolable. However, we can safely assume that the only benefit which defendant expected to receive from the plea-bargain and sentence agreement was parole eligibility under M.C.L. § 791.234(4); M.S.A. § 28.2304(4). Since such parole eligibility is precluded by Proposal B, defendant's plea was rendered illusory.

[111 MICHAPP 794] A plea of guilty must be voluntarily and intelligently made. Guilty Plea Cases, 395 Mich. 96, 235 N.W.2d 132 (1975). In order to plead voluntarily, a defendant must know the direct consequences of his plea, including the actual value of any commitments made to him. People v. Lawson, 75 Mich.App. 726, 730, 255 N.W.2d 748 (1977).

The trial court's order denying defendant's motion for new trial indicates its disagreement with the Attorney General's opinion regarding the effect of Proposal B on life sentences and expresses a clear intent that defendant be eligible for parole under the lifer law. A very similar situation was addressed by this Court in People v. Penn, 102 Mich.App. 731, 302 N.W.2d 298 (1981). In that case, the trial judge expressly stated that he interpreted life imprisonment as it had been interpreted prior to the passage of Proposal B and indicated his belief that the Department of Corrections would be bound by his interpretation of the law. This Court reversed, holding that the Department of Corrections was bound by the opinion of the Attorney General and could therefore not honor the trial court's intent that that defendant be eligible for parole under the lifer law. We agree with the following holding in Penn, supra, 734, 302 N.W.2d 298, and find it fully applicable to the present case:

"Where a defendant's plea is induced by promises of leniency in sentencing and 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."

[111 MICHAPP 795] 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 ten years and a maximum of x number of years greater than fifteen and less than life. See Id., 733, fn. 2, 302 N.W.2d 298.

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