People v. Cummings

• Decision Date: 06 July 1978
• Docket Number: Docket No. 77-2013
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Warren CUMMINGS, a/k/a Leon Bell, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 658

269 N.W.2d 658

84 Mich.App. 509

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Warren CUMMINGS, a/k/a Leon Bell, Defendant-Appellant.

Docket No. 77-2013.

Court of Appeals of Michigan.

July 6, 1978.

Released for Publication Sept. 18, 1978.

Bruce R. Saperstein, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, Appellate Chief Asst. Pros. Atty., Andrea L. Solak, Asst. Pros. Atty., for plaintiff-appellee.

Before CAVANAGH, P. J., and BRONSON and WALSH, JJ.

BRONSON, Judge.

The primary issue in this guilty-plea appeal is whether a plea may be set aside before sentencing on the prosecutor's motion on the basis that defense counsel concealed material facts during plea bargaining.

Defendant originally pled guilty to attempted breaking and entering an occupied dwelling with intent to commit larceny on June 28, 1976, pursuant to a plea bargain. ¹

On July 6, 1976, before sentencing, the prosecutor moved to set aside this plea on two bases: (1) in his plea, defendant stated that he did not know it was an occupied dwelling, and (2) the prosecutor was not made aware of defendant's extensive record for breaking and entering. The trial court granted the motion on both bases.

Subsequently, defendant pled guilty to breaking and entering an occupied dwelling with intent to commit larceny, M.C.L. § 750.110; M.S.A. § 28.305. He moved on the sentencing date to withdraw the plea, but that motion was denied. He now appeals of right.

Defendant first contends that the trial court erred in setting aside his original plea to attempted breaking and entering. The trial court's first reason for setting aside the plea was insufficient. It is not an element of M.C.L. § 750.110; M.S.A. § 28.305 that defendant know the building he entered was an occupied dwelling house. ²

However, we hold that the trial court's second reason was sufficient to justify setting aside the plea.

As a general rule, even unwise plea bargains are binding on the prosecutor. Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); People v. Reagan, 395 Mich. 306, 235 N.W.2d 581 (1975). However, People v. Reagan, supra, indicates that there may be situations in which a plea agreement may be held not to bind the prosecutor:

"We are not confronted with the situation where the prosecutor is misled by force of defendant's connivance into a disadvantageous agreement or where facts not within the fair contemplation of agreement have come to light." People v. Reagan, supra, at 318, 235 N.W.2d at 587. ³

See State v. Lord, 109 N.J.Super. 80, 262 A.2d 244 (1970).

In the case at bar, the lower court found that defense counsel had concealed material information during plea bargaining. There was evidence to support this finding. ⁴ On these facts, the trial court did not abuse its discretion in setting aside defendant's first guilty plea.

Defendant next contends that the trial court abused its discretion in not allowing him to withdraw his second guilty plea on the date of sentencing. At sentencing, defendant stated that he wanted to withdraw his guilty plea, but offered No reason for wanting to withdraw it. The trial court denied his motion, stating that it had reviewed the plea and found it knowingly and voluntarily made. ⁵ We hold that the trial court did not abuse its discretion. People v. Stewart, 23 Mich.App. 589, 179 N.W.2d 193 (1970). See People v. Zaleski, 375 Mich. 71, 133 N.W.2d 175 (1965).

Defendant also challenges his second guilty plea on the basis that the trial court failed to inform him of the possibility of consecutive sentences. This, however, is not required. People v. Bennett, 76 Mich.App. 264, 256 N.W.2d 459 (1977); People v. Larkins, 59 Mich.App. 199, 229 N.W.2d 378 (1975).

Finally, we hold that defendant was not prejudiced by the substitution of one attorney from the Detroit Defender's Office by another from the same office at sentencing. Defendant fails to even allege prejudice from that substitution. See People v. Edwards, 18 Mich.App. 526, 171 N.W.2d 592 (1969).

Affirmed.

1 In return for the plea, the prosecutor agreed not to proceed under the Habitual Offender Act, M.C.L. §§ 769.10-769.13; M.S.A. §§ 28.1082-28.1085.

2 See, e. g., People v. Benevides, 71 Mich.App. 168, 171-172, 247 N.W.2d 341 (1976), holding that the elements of breaking and entering an occupied dwelling are: (1) a breaking and entering, (2) of an occupied dwelling, (3) with felonious intent.

The statute reads in part:

"Any person who breaks and enters any occupied dwelling house, with intent to commit any felony or larceny therein, shall be guilty of a felony punishable...