People v. Dixon

• Court: Court of Appeal of Michigan
• Writing for the Court: CAMPBELL; T. M. BURNS
• Citation: People v. Dixon, 303 N.W.2d 32, 103 Mich.App. 518 (Mich. App. 1981)
• Decision Date: 04 February 1981
• Docket Number: Docket No. 48463
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Otis DIXON, Jr., Defendant-Appellant. 103 Mich.App. 518, 303 N.W.2d 32

Page 32

303 N.W.2d 32

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Otis DIXON, Jr., Defendant-Appellant.

Docket No. 48463.

103 Mich.App. 518, 303 N.W.2d 32

Court of Appeals of Michigan.

Feb. 4, 1981.

Released for Publication March 23, 1981.

[103 MICHAPP 520] William Douglas Winters, Ypsilanti, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William F. Delhey, Pros. Atty., James S. Sexsmith, Chief Appellate Asst. Pros. Atty., David A. King, Asst. Pros. Atty., for plaintiff-appellee.

[103 MICHAPP 521] Before CAVANAGH, P. J., and T. M. BURNS and CAMPBELL, ^* JJ.

CAMPBELL, Judge.

Defendant, Otis Dixon, Jr., pled guilty on February 5, 1979, to two counts of felonious assault, M.C.L. § 750.82; M.S.A. § 28.277, in connection with a sentence agreement between himself, the prosecutor and the trial court. Under the agreement, defendant was to receive a maximum sentence of five years on an habitual offender charge arising from the assaults. The supplemental information supporting the habitual offender charge was not filed until the day following defendant's plea-based conviction.

Defendant was sentenced to two years and eight months to four years in prison on both assault charges. The trial on the habitual offender charge was conducted on August 20, and 22, 1979, and on August 24, 1979, defendant was sentenced to six to eight years in prison on that charge and the sentences on the two underlying assault charges were vacated.

Defendant raises two issues worthy of discussion. First, he argues that the habitual offender conviction should be vacated and the sentences on the underlying charges reinstated, because the supplemental information was filed after defendant's conviction, in violation of the rule in People v. Fountain, 407 Mich. 96, 282 N.W.2d 168 (1979). A determination of Fountain's retroactivity is crucial to this argument because Fountain was decided on August 28, 1979, four days after defendant was sentenced. The weight of authority indicates that Fountain should be prospectively applied, People v. Heiler, 97 Mich.App. 636, 296 N.W.2d 10 (1980); People v. Holmes, 98 Mich.App. 369, 295 [103 MICHAPP 522] N.W.2d 887 (1980), but that limited retroactivity should be allowed for those cases pending on appeal at the time of the Fountain decision. People v. Reese, 97 Mich.App. 785, 296 N.W.2d 172 (1980); People v. Mohead, 98 Mich.App. 612, 295 N.W.2d 910 (1980) (dissent of Burns, J.).

The timing of defendant's conviction and claim of appeal have placed him in an unusual position. Because defendant's conviction occurred shortly before the decision in Fountain, his claim of appeal was not filed until after that decision. Consequently, defendant does not technically come within the limited retroactivity granted to pending appeals. Such a strict interpretation of the law would be unjust, however, because it would allow retroactivity on those cases tried sufficiently before Fountain to reasonably allow trial counsel to file a claim of appeal, but would deny retroactivity to those defendants convicted immediately prior to Fountain and whose legal counsel did not appeal as of right until after the decision. Trial counsel's justified reliance upon the 60-day appeal period contained in GCR 803.1 should not be penalized in this way.

The rule established in Fountain is inapplicable to this particular case, however. People v. Haywood, 97 Mich.App. 621, 296 N.W.2d 127 (1980), held that the Fountain pronouncement does not preclude the prosecutor from proceeding with a prosecution under the habitual offender act as long as the prosecution's action is prompt and provides fair notice to the defendant sufficiently in advance of trial of the current charge. As support for this position, Haywood relies upon Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978), which indicates that prosecutors may file supplemental informations after a defendant's conviction[103 MICHAPP 523] as long as they do so promptly and have indicated their intention to file these charges at the outset of the plea bargaining negotiations so as not to surprise the defendant with a more serious charge after negotiations have been completed:

" 'It may be helpful to clarify at the outset the nature of the issue in this case. While the prosecutor did not actually obtain the recidivist indictment until after the plea conferences had ended, his intention to do so was clearly expressed at the outset of the plea negotiations. Hayes was thus fully informed of the true terms of the offer when he made his decision to plead not guilty. This is not a situation, therefore, where the prosecutor without notice brought an additional and more serious charge after plea negotiations relating only to the original indictment had ended with defendant's insistence on pleading not guilty. As a practical matter, in short, this case would be no different if the grand jury had indicted Hayes as a recidivist from the outset, and the prosecutor had offered to drop that charge as part of the plea bargain.' (Footnote omitted.) Bordenkircher, supra (434 U.S.), 360 (98 S.Ct. 666)." (Emphasis added.) Haywood, supra, 97 Mich.App. 624, 296 N.W.2d 127.

Under this standard, the prosecutor was not required to file a supplemental information prior to the defendant's conviction in the instant case. Defendant was aware of the prosecutor's intent to file the supplemental information and took that into consideration in his sentence bargaining agreement. Moreover, the supplemental information was promptly filed following the conviction. Accordingly, we find no reversible error.

Defendant's second argument requests specific performance of the sentencing agreement. It is well settled that where a plea bargain has been breached the defendant may elect to have the bargain specifically enforced or have the guilty plea withdrawn. Guilty Plea Cases, 395 Mich. 96, [103 MICHAPP 524] 127, 235 N.W.2d 132 (1975); People v. Eck, 39 Mich.App. 176, 197 N.W.2d 289 (1972); People v. Baker, 46 Mich.App. 495, 208 N.W.2d 220 (1973). A breach of a sentence agreement, however, only entitled defendant to withdraw his guilty plea. People v. Hagewood, 88 Mich.App. 35, 38, 276 N.W.2d 585 (1979). Specific performance is not available as an alternative remedy because the authority to pronounce sentences is within the...