People v. Earegood, Docket No. 2755

Decision Date28 June 1968
Docket NumberNo. 2,Docket No. 2755,2
Citation12 Mich.App. 256,162 N.W.2d 802
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. William J. EAREGOOD, Defendant-Appellant
CourtCourt of Appeal of Michigan — District of US

Michael A. Pelavin, Pelavin & Pelavin, Flint, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Robert F. Leonard, Pros. Atty., Genesee County, Donald A. Kuebler and Paul G. Miller, Jr., Asst. Pros. Attys., Flint, for appellee.

Before QUINN, P.J., and T. G. KAVANAGH and LEVIN, JJ.

LEVIN, Judge.

The fundamental question presented by this appeal is whether a trial judge may properly reduce or enlarge a sentence based on the amount of the court's time consumed before a defendant's conviction.

The defendant Earegood pleaded not guilty to the charge originally lodged against him at the arraignment on the information, August 2, 1965. At the criminal calendar call October 12, 1965, the defendant demanded a jury trial. Shortly before he was given an opportunity to do so the trial judge made the following statement:

'I think it is about time to make my usual announcement, gentlemen. The purpose of this call is to get pleas. If you are going to plead or waive a trial by jury now is the time to do it, so we can schedule. The court has a long memory, and all this goes on record, and when it comes time for sentence, if you plead or waive a jury at the last minute, it is a factor I take into consideration in sentencing. I am sure you all know the risk.'

Thereafter, on November 16, 1965, the information was amended to add the count of assault with intent to do great bodily harm less than the crime of murder, 1 and the defendant pleaded guilty to that charge. The requirements of GCR 1963, 785.3(2) were complied with before acceptance of his guilty plea. 2 The defendant was sentenced on December 17, 1965.

As we read his remarks of October 12, 1965, the trial judge told all in the courtroom, including the defendant, that those who dilly-dallied in offering a guilty plea might expect to be dealt with more severely should they later decide to offer one. We take the judge at his word and assume he sentenced as he promised he would, and, thus, that Earegood's sentence was increased because he dawdled before pleading. Because a sentence may not be enlarged or reduced depending on the alacrity with which the defendant pleads guilty, the sentence must be set aside.

But Earegood also contends the trial judge's remarks influenced him to plead guilty. This contention presents several subsidiary questions:

--Did the trial judge's remarks in fact influence the defendant to plead guilty?

--Is the plea insulated from attack because it followed negotiations and an agreement that the defendant would offer a plea of guilty to an added lesser offense?

--May a trial judge validly increase or reduce a sentence based on whether the defendant was convicted following a trial or a plea of guilty?

I.

The courts hold with substantial unanimity that a trial judge may not properly encourage a defendant to plead guilty 3 or impose a penalty in the form of an increased sentence 4 upon one convicted after a trial.

Most judges would probably agree it is improper for a trial judge to influence a defendant's decision whether to plead guilty and, thus, on this point at least, practice in general conforms to the judicial statements.

'The unequal positions of the judge and the accused, one with the power to commit to prison and the other deeply concerned to avoid prison, at once raise a question of fundamental fairness. When a judge becomes a participant in plea bargaining he brings to bear the full force and majesty of his office. His awesome power to impose a substantially longer or even maximum sentence in excess of that proposed is present whether referred to or not. A defendant needs no reminder that if he rejects the proposal, stands upon his right to trial and is convicted, he faces a significantly longer sentence. One facing a prison term, whether of longer or shorter duration, is easily influenced to accept what appears the more preferable choice.' United States ex rel. Elksnis v. Gilligan (SD NY, 1966), 256 F.Supp. 244, 254.

However, despite appellate court statements to the contrary (see footnote 4), many trial judges think it entirely proper to count against the defendant the fact that he has put the State to the expense of a trial, and sentence one convicted following a trial more heavily than if he had pled guilty. 5 This sentencing practice finds support in the American Bar Association's recently adopted Standards Relating to Pleas of Guilty (standard 1.8; quoted in full in footnote 8). 6 The standards state it is proper for a trial judge to grant sentence concessions to those who plead guilty as long as the judge himself does not participate in the bargaining (standards 3.3(a) and 1.8(a), discussed in part II, infra).

The commentary accompanying the standards takes no notice of either the relatively few supportive or the greater number of contrary judicial statements (see footnote 4), but rather relies on its own exegesis.

In those jurisdictions where plea bargaining focuses on the granting of sentence concessions, the present high proportion of guilty pleas is no doubt in part explained by the practice of granting such concessions or at least leading defendants to believe they will be granted. In proposing as a national standard the practices followed in those jurisdictions, practices contrary to most appellate court statements on the matter, ABA guilty pleas standard 1.8 (discussed in part III, infra) offers a truly minimum standard. 7 That standard does not--and we say this with sincere respect for the judgment of those who participated in the promulgation of the standards--represent the conscience of the law. It is inconsistent with fundamental principles concerning the judge's role, with the maintenance of any standards at all, and lends respectability to practices which no court should allow.

The high regard we all have for the ABA may well lead to uncritical adoption of standards issued under its authority with the result that the minimum standard will become the common standard. This we feel would be most unfortunate, and, accordingly, we address ourselves to what we believe to be a serious threat to well-established principles concerning the use of judicial power.

II.

ABA Guilty Plea standard 3.3(a) states:

'The trial judge should not participate in plea discussions'

while standard 1.8(a) states:

'It is proper for the court to grant charge and sentence concessions to defendants who enter a plea of guilty'.

There is, of course, a difference in degree between overt and covert participation, the former clearly being more inconsistent with the judge's role than the latter. But the fact that a particular judge grants sentence concessions to guilty pleaders is not the kind of fact likely to be kept secret. On the contrary, lawyers who properly represent their clients make it their business to learn the sentencing policies of the various judges before whom they appear. Thus, in a very real sense, the judge who adopts a practice of going lighter on guilty pleaders cannot avoid participation in the plea bargaining process. His practices may become so well known that it is unnecessary for him to inject himself in the process overtly, but this hardly means he does not participate. The judge's sentencing practices are a fact, and they are no less a fact because there is no need to rearticulate that fact upon each arraignment.

Standard 3.3(b) states that where a 'tentative plea agreement has been reached which contemplates entry of a plea of guilty * * * in the expectation * * * that sentence concessions will be granted, upon request of the parties the trial judge may permit the disclosure to him of the tentative agreement', and he may indicate 'whether he will concur in the proposed disposition if the information in the presentence report is consistent with the representations made to him.' It is further provided (standard 3.3(c)) that, notwithstanding the prior plea agreement, the trial judge 'should reach an independent decision.' And if the trial judge has concurred in the plea agreement (standard 3.3(b)) 'but later decides that the final disposition should not include the * * * sentence concessions contemplated by the plea agreement, he shall so advise the defendant and then call upon the defendant to either affirm or withdraw his plea of guilty'.

We are convinced of the impossibility of the judge's avoiding active participation in plea bargaining under the circumstances described by the standard. The length of sentence is the decision of the judge. Prosecutor-defense counsel bargaining over sentence concessions would be an exercise in futility unless the bargainers thought the result of their negotiations would influence the judge. Thus, without at least the judge's tacit approval (i.e., his 'participation'), such bargaining would not take place. If the prosecutor is willing to recommend, for example, 5 years, and the defendant is seeking 2 1/2 years, and they settle on 3 1/2 years, they must of necessity in such bargaining consider the judge's attitude.

If the judge permits disclosure to him of the prosecutor-defendant agreement upon sentence (as the quoted ABA standard contemplates), how can he avoid stating the reason for any disagreement with the recommended disposition and, perhaps, indicating what sentence he would agree to consider, at least in those jurisdiction where the administration of criminal justice has come to depend on a steady flow of guilty pleas? Indeed, what purpose would be served by disclosing the arrangement to the judge if not determination of whether the bargainers are on the beam? If a meeting of the minds or finalization of a previously negotiated...

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