People v. Kline

• Decision Date: 04 May 1982
• Docket Number: Docket No. 51310
• Citation: People v. Kline, 318 N.W.2d 510, 113 Mich.App. 733 (Mich. App. 1982)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Donald KLINE, Defendant-Appellant. 113 Mich.App. 733, 318 N.W.2d 510
• Court: Court of Appeal of Michigan

Page 510

318 N.W.2d 510

PEOPLE of the State of Michigan, Plaintiff-Appellee, v.Donald KLINE, Defendant-Appellant.

Docket No. 51310.

113 Mich.App. 733, 318 N.W.2d 510

Court of Appeals of Michigan.

Submitted May 5, 1981.

Decided March 2, 1982.

Released for Publication May 4, 1982.

[113 MICHAPP 734]Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol.Gen., William L. Cahalan, Pros.Atty., Edward Reilly Wilson, Chief Appellate Asst. Pros.Atty., and David G. Edick, Asst. Pros.Atty., for the People.

Ronald A. Molter, Detroit, for defendant-appellant.

Before BASHARA, P. J., and KAUFMAN and BANKS, ^* JJ.

BANKS, Judge.

This case raises a number of issues surrounding the defendant's plea of guilty to armed robbery.

First, defendant argues that the trial court erred when it did not suppress evidence seized at the time defendant and others were arrested.Defendant was arrested on the anonymous tip of a citizen shortly after the armed robbery of a clothing store in the City of Detroit.Based only on the citizen's tip, the police went to 15876 Santa Rosa, announced their presence and broke into the residence when they heard movement inside.Evidence then seized connected the defendant and others with the armed robbery.The trial court refused to suppress evidence seized without a warrant on the basis that the officers were in "hot pursuit".We disagree.Payton v. New York, 445 U.S. 573, 589-590, 100 S.Ct. 1371, 63 L.Ed.2d 639(1980), Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723(1964), People v. Casey, 102 Mich.App. 595, 599, 302 N.W.2d 248(1980), aff'd411 Mich. 179, 305 N.W.2d 247(1981), People v. Strelow, 96 Mich.App. 182, [113 MICHAPP 735] 190-192, 292 N.W.2d 517(1980).However, because defendant pled guilty, we find the unlawful search and seizure issue waived.Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235(1973).

The second issue concerns the extent to which a trial judge should participate in plea and sentence negotiations.The record herein shows that, in the plea-taking process, the trial judge cross-examined the defendant at length and actively bargained with him from the bench.¹It is apparent that it [113 MICHAPP 737] was the judge who negotiated the plea and the sentence in this case.

While it is true that the courtrule, GCR 1963, 785.7(2)(a), (b) and (4)(b), does not expressly prohibit a trial judge from entering into plea negotiations, the better rule is, we feel, embodied in F.R.Crim.P. 11(e).²SeeUnited States v. Werker, 535 F.2d 198(CA 2, 1976), andGriffith v. Wyrick, 527 F.2d 109(CA 8, 1975).We also agree with thoughts expressed by Judge Kelly in People v. Mathis, 92 Mich.App. 670, 674-675, 285 N.W.2d 414(1979), and [113 MICHAPP 738]People v. Bennett, 84 Mich.App. 408, 413-414, 269 N.W.2d 618(1978), that the trial judge "should be called upon in open court to approve the plea bargain reached by the adversaries, but should not be the instigator of, nor the conduit for, negotiations".Mathis, 675.

However, although the trial judge acted imprudently by participating in plea and sentence negotiations, we decline to reverse on that ground since such participation is not expressly prohibited by court rule, statute or Supreme Court ruling.We would instead urge that the Supreme Court consider the amendment of GCR 1963, 785 to expressly prohibit such plea and sentence negotiations.

Finally, we observe that trial counsel and the trial court had before them substantial evidence that, at the time of the plea, defendant's mental capacity was in question.Because a defendant must be competent in order to plead guilty, People v. Matheson, 70 Mich.App. 172, 245 N.W.2d 551(1976), we remand to the trial court and direct that new counsel, other than the attorney who represented the defendant in the plea proceedings, be appointed.We further direct that the trial court commit the defendant to the Center for Forensic Psychiatry for an evaluation of competency.

Remanded.

*James L. Banks, 8th Judicial Circuit Judge, sitting on Court of Appeals by assignment pursuant to Const.1963, Art. 6, Sec. 23, as amended1968.

1"THE COURT: FileNumber 79-07236, The People of the State of Michigan versus Donald Kline; the charge, Robbery Armed.It carries a maximum sentence of life, and there is no reduced plea by the Prosecutor's Office.There was also no sentence recommendation by the Prosecutor's office, because there was no reduced plea.

"Mr. Metz, are you going to stand in for Mr. Agacinski.

"MR. METZ [Assistant Prosecuting Attorney]: The Court has directly stated what the prosecutor has offered, and also we have not engaged in any way in sentence bargaining.

"THE COURT: The Court has talked with Mr. Nelson on behalf of Mr. Kline.I've indicated that I would sentence him to no more than three to fifteen years, and I would recommend a training unit, and that was the extent of the agreement as to the Court as to the sentence agreement.Is that correct, Mr. Nelson?

"MR. NELSON [Defense Counsel]: That's correct.

* * *

"THE COURT: Mr. Kline, do you understand the charge against you is Robbery Armed, which carries a maximum of life imprisonment?

"THE DEFENDANT: Yes, ma'am.

"THE COURT: And I've indicated to your attorney if I accept your guilty plea, I will sentence you to no more than three to fifteen years; do you understand that, sir?

"THE DEFENDANT: Yes, ma'am.

"THE COURT: But I could sentence you to life; do you understand that?

"THE DEFENDANT: Yes.

"THE COURT: Has anyone forced you to plead guilty?

"THE DEFENDANT: No, ma'am.

"THE COURT: Has anyone told you I'd be lenient in order to get you to plead guilty other than what I've told you?

"THE DEFENDANT: No, ma'am.

"THE COURT: Are you pleading guilty because you are guilty?

"THE DEFENDANT: Yes, ma'am.

"THE COURT: Is this plea being offered freely, voluntarily and understandingly by you without any undue influence, compulsion or duress, and also without any promises of leniency by the Court?

"THE DEFENDANT: Yes, ma'am.

* * *

"MR. METZ: May we approach the bench for a minute, Your Honor.

"MR. NELSON: Wait a minute.I think Mr. Metz has raised the issue that he feels that there is not a sufficient factual basis regarding the use of a device to make one believe a handgun was used.I would ask that the Court as an offer of proof read the examination transcript, which indicates that one of his confederates did hold a pair of pants over his hand in such a manner as to lead one to believe there was--that he did have a gun and he was armed and did state something such as 'give me all your money or I'm going to blow your head off', this type of thing, and I think that the Court--

"THE COURT: Well, I did read that, but--

"MR. NELSON: At the motion, the Court read the transcript.

"THE COURT: I know what's in there, but I think the problem lies with Mr. Metz.I guess he's trying to show that this defendant knew or heard those words uttered.

"MR. METZ: My belief, Your Honor, would be this defendant would have had to have this specific intent and not just larceny, but an Armed Robbery.

Did you discuss it ahead of time or at the time the actions occurred, whether he knew it and continued the criminal enterprise.That would be sufficient also.I have a question under the circumstances.

"MR. NELSON: Pardon me, it's my understanding of the law that an aider and abettor, if one abets, the intent is there.The intent is passed over and that's in essence what we have there, that intent of the one...