People v. Earegood, 19

• Citation: 383 Mich. 82,173 N.W.2d 205
• Decision Date: 12 January 1970
• Docket Number: No. 19,19
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. William Joseph EAREGOOD, Defendant-Appellee.
• Court: Supreme Court of Michigan

Page 205

173 N.W.2d 205

383 Mich. 82

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. William Joseph EAREGOOD, Defendant-Appellee.

No. 19.

Supreme Court of Michigan.

Jan. 12, 1970.

Robert F. Leonard, Pros. Atty., by Paul G. Miller, Jr., Chief Asst. Pros. Atty., Flint, for plaintiff-appellant.

Pelavin and Pelavin, P.C., by Michael A. Pelavin, Flint, for defendant-appellee.

Before BRENNAN, C.J., and DETHMERS, KELLY, BLACK, T. M. KAVANAGH and ADAMS, JJ.

Before the Entire Bench, except T. G. KAVANAGH, J.

PER CURIAM.

On July 23, 1965, defendant and two codefendants were charged with armed robbery and with assault with intent to commit murder. On October 12, 1965, defendant appeared before the trial judge at which time a call of the criminal calendar took place. On that occasion, the 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.' (Emphasis added.)

On November 16, 1965, an amended information was filed charging defendant with assault with intent to do great bodily harm less than the crime of murder. Defendant pled guilty on the same date to this lesser included offense. On December 17, 1965, defendant was sentenced to a minimum of eight years and a maximum of ten years. The two charges originally filed against defendant carry sentences for life or for any term of years. M.C.L.A. § 750.529 (Stat.Ann.1969 Cum.Supp. § 28.797); M.C.L.A. § 750.83 (Stat.Ann.1962 Rev. § 28.278). The maximum term of imprisonment for the charge to which defendant did plead guilty is ten years. M.C.L.A. § 750.84 (Stat.Ann.1962 Rev. § 28.279).

Upon appeal to the Court of Appeals, the conviction and plea were set aside and the cause remanded for trial. (12 Mich.App. 256, 162 N.W.2d 802). We granted leave. (381 Mich. 787).

Judge Levin wrote the majority opinion in the Court of Appeals. Commenting on the trial judge's statement, he wrote:

'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.'

We agree with this holding of the Court of Appeals. It is, of course, impossible for a reviewing court to enter into the thought processes of a trial judge in imposing sentence upon a defendant; and, as a general rule, sentences are not subject to review. Upon occasion, however, this Court has dealt with a variety of sentences. See Moore v. Parole Board (1967), 379 Mich. 624, 639, 154 N.W.2d 437. The usual procedure has been to send the case back to the trial judge for re-sentencing if it was found that the sentence was in some respect deficient. We limit our holding in this case to the proposition that it is impermissible for a judge in imposing sentence to take into consideration as a factor in determining the term of the sentence the fact that defendant pled or waived a jury at the last minute and we remand for re-sentencing.

We do not consider the question as to whether the...