People v. Lowe, Docket No. 100360
| Decision Date | 23 November 1988 |
| Docket Number | Docket No. 100360 |
| Court | Court of Appeal of Michigan — District of US |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gregg LOWE, Defendant-Appellant. |
Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of the Crim. Div., Research, Training and Appeals, and Olga Agnello, Asst. Pros. Atty., for the People.
James Sterling Lawrence, Detroit, for defendant-appellant on appeal.
Before KELLY, P.J., and GRIBBS and SIMON, * JJ.
Pursuant to a plea agreement, defendant pled guilty to armed robbery, M.C.L. Sec. 750.529; M.S.A. Sec. 28.797. The agreement provided that a felony-firearm charge would be dismissed and that the recommended sentence would be 7 1/2 to 15 years; however, if a more lenient sentence was imposed, the prosecutor could withdraw from the agreement. After ascertaining that defendant understood the consequences of tendering a guilty plea and after a factual basis for the crime was established, the trial court accepted defendant's plea and defendant was convicted of armed robbery. Defendant was subsequently sentenced to 7 1/2 to 15 years imprisonment.
Defendant's first issue on appeal is that he was denied his right to allocution at his sentencing hearing. The colloquy that took place at the September 15, 1986, sentencing hearing was, in pertinent part, as follows:
(Court reads letter.)
Defendant was then sentenced to 7 1/2 to 15 years imprisonment.
MCR 6.101(G)(2) provides that a defendant, defense counsel, and the prosecutor must be given "a reasonable opportunity to advise the court on the record of any circumstances that they believe the court should consider in imposing sentence...."
Referring to GCR 1963, 785.8(2) [now MCR 6.101(G)(2) ], the Supreme Court in People v. Berry, 409 Mich. 774, 781, 298 N.W.2d 434 (1980), stated:
The issue boils down to whether the trial court's inquiry of "Anything further?" satisfies the Berry requirement that the trial court "inquire specifically of the defendant separately whether he or she wishes to address the court before the sentence is imposed." We think not. The question posed by the trial court can be seen as a general statement made to either the prosecutor, the defense counsel, or defendant. Although an argument could be made that defendant made his thoughts known to the sentencing court through the letter he gave to the court, the court was obligated, despite the sentence agreement (see People v. Berry, supra ), to specifically inquire, on the record, separately of defendant whether he wished to address the court. Our review of the transcript does not reveal such an inquiry.
In People v. Coles, 417 Mich. 523, 532, 339 N.W.2d 440 (1983), the Supreme Court stated that "[d]efendants are also guaranteed the right of allocution prior to being sentenced and must be resentenced if this right is violated." Since we have concluded that defendant was not properly afforded his right to allocution, this case is remanded for resentencing.
Defendant also raises three other sentencing issues. First, defendant contends the trial court erred in permitting a sentence agreement that would allow the prosecution to withdraw its approval of the agreement if defendant was not given at least a sentence of 7 1/2 to 15 years. Defendant argues that with this agreement the prosecutor could, in effect, withdraw the plea agreement if the sentence was too lenient.
In People v. Schirle, 105 Mich.App. 381, 384, 306 N.W.2d 520 (1981), this Court stated:
Here, the trial court was delivered a plea bargain that would have allowed the prosecution to nix the agreement if defendant had not received a prison term of at least 7 1/2 to 15 years. Relying on People v. Killebrew, 416 Mich. 189, 330 N.W.2d 834 (1982), defendant argues that this type of sentence agreement circumvents and violates the rules regarding plea agreements and specific sentence recommendations. In Killebrew, the Supreme Court reasoned that, despite the fact that the prosecution merely made recommendations for a defendant's sentence, the reality was that defendants routinely relied on the prosecutor's recommendation and the prosecutor's ability to secure the sentence when a plea was offered. The Killebrew Court realized that "[t]o most defendants, the distinction between a sentence agreement and a sentence recommendation is little...
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