People v. Crabtree, Docket No. 58158

• Decision Date: 31 March 1982
• Docket Number: Docket No. 58158
• Citation: 317 N.W.2d 537,112 Mich.App. 720
• Parties: The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Rolland Gene CRABTREE, Defendant-Appellant. 112 Mich.App. 720, 317 N.W.2d 537
• Court: Court of Appeal of Michigan — District of US

Page 537

317 N.W.2d 537

The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Rolland Gene CRABTREE, Defendant-Appellant.

Docket No. 58158.

112 Mich.App. 720, 317 N.W.2d 537

Court of Appeals of Michigan.

Submitted Oct. 8, 1981.

Decided Jan. 13, 1982.

Released for Publication March 31, 1982.

[112 MICHAPP 721] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., John A. Smietanka, Pros. Atty., and Angela Baryames, Asst. Pros. Atty., for the People.

Andrew J. Burch & Associates, P.C., Coloma, for defendant-appellant.

Before MAHER, P. J., and HOLBROOK and ROBINSON ^*, JJ.

PER CURIAM.

Defendant pled guilty to possession of cocaine with intent to deliver, M.C.L. Sec. 333.7214(a)(iv); M.S.A. Sec. 14.15(7214)(a)(iv), M.C.L. Sec. 333.7401(1), (2)(a)(iv); M.S.A. Sec. 14.15(7401)(1), (2)(a)(iv). In exchange for defendant's plea, the prosecutor agreed to recommend probation.

At the guilty-plea hearing, in the course of the following exchange, defendant was informed that the trial court was in no way bound by the prosecutor's recommendation:

"THE COURT: All right. Mr. Gezon, has there been a plea agreement in this case:

"MR. GEZON: Yes, Your Honor. The People, if the defendant pleads guilty to the Information, will recommend that the sentence include probation and restitution in an amount of $1,050.00. It should be understood by the Defendant, clearly, that the People's recommendation does not bind the Court in any way.

"THE COURT: Absolutely not. You understand, Mr. Crabtree, I will listen to the recommendation, but I am certainly not bound by it, I can sentence you anywhere up to 20 years.

"MR. DREW: Your Honor, I have been over that point at very great length with my client.

"THE COURT: You understand that I may sentence you for up to 20 years in prison?

[112 MICHAPP 722] "THE DEFENDANT: Yes, sir."

The trial court declined to follow the prosecutor's recommendation and sentenced defendant to from 2 to 20 years.

Defendant contends that he is entitled to withdraw his plea on the ground that the trial court failed to follow the prosecutor's recommendation.

The Court of Appeals is currently divided over this issue. One group of cases is in agreement with defendant's position. See People v. Hagewood, 88 Mich.App. 35, 38, 276 N.W.2d 585 (1979); People v. Briggs, 94 Mich.App. 723, 726, 290 N.W.2d 66 (1980), lv. gtd. 408 Mich. 958 (1980); People v. Black, 103 Mich.App. 109, 302 N.W.2d 612 (1981); People v. Bahlhorn, 105 Mich.App. 118, 306 N.W.2d 416 (1981); People v. Schirle, 105 Mich.App. 381, 306 N.W.2d 520 (1981), and People v. Newsum, 105 Mich.App. 755, 307 N.W.2d 412 (1981). On the other hand, another line of cases puts forth the proposition that withdrawal need not be permitted where the defendant has been informed by the trial court, prior to acceptance of the plea, that the court is not bound by the prosecutor's recommendation. See People v. Davis, 74 Mich.App. 624, 254 N.W.2d 335 (1977); People v. Armstrong, 99 Mich.App. 137, 297 N.W.2d 637 (1980); People v. Yates, 99 Mich.App. 396, 297 N.W.2d 680 (1980); People v. King, 104 Mich.App. 459, 304 N.W.2d 605 (1981); People v. Johnson, 105 Mich.App. 614, 307 N.W.2d 385 (1981), and People v. Shovan, 112 Mich.App. ---, 316 N.W.2d 449 (1982). We believe that the latter group of cases reflect the more enlightened view. Accordingly, we affirm defendant's conviction, since the record shows that when he pled guilty he was fully informed by the trial court that it was in no way bound by the prosecutor's recommendation. We [112 MICHAPP 723] feel that a defendant who receives such a warning has sufficient notice of the limited value of such a recommendation to enable him to appreciate the consequences of his decision.

We note that our position is in conflict with Sec. 3.3(b) of the ABA Project on Standards for Criminal Justice, Standards Relating to the Administration of Criminal Justice (hereinafter ABA Standards), Pleas of Guilty (1968), and Sec. 4.1(c) of the ABA Standards, Function of the Trial Judge (1968), which provide that withdrawal should be permitted when the court decides not to follow the recommendation, and not merely when the court decides that it might not follow the recommendation.

However, we also observe that those standards have been superseded by new standards approved by the ABA on February 12, 1979. Section 14-3.3(g) of the new ABA Standards, Pleas of Guilty (1979), now provides:

"In cases where defendant offers to plead guilty and the judge decides that the final disposition should not include the charge or sentence concessions contemplated by the plea agreement, the judge shall so advise the defendant and permit withdrawal of the tender of the plea. In cases where a defendant pleads guilty pursuant to a plea agreement and the court, following entry of the plea, decides that the final disposition should not include the contemplated charge or sentence concessions,...