People v. Mathis, Docket No. 78-3544

• Decision Date: 01 October 1979
• Docket Number: Docket No. 78-3544
• Citation: 285 N.W.2d 414,92 Mich.App. 670
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Frank MATHIS, Defendant-Appellant. 92 Mich.App. 670, 285 N.W.2d 414
• Court: Court of Appeal of Michigan — District of US

Page 414

285 N.W.2d 414

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Frank MATHIS, Defendant-Appellant.

Docket No. 78-3544.

92 Mich.App. 670, 285 N.W.2d 414

Court of Appeals of Michigan.

Oct. 1, 1979.

Released for Publication Nov. 29, 1979.

[92 MICHAPP 671] Charles T. Burke, Livonia, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, III, App. Chief, Asst. Pros. Atty., for plaintiff-appellee.

Before KELLY, P. J., and R. B. BURNS and BASHARA, JJ.

KELLY, Presiding Judge.

The defendant was charged with assault with intent to murder in violation of M.C.L. § 750.83; M.S.A. § 28.278. Following a jury trial in Detroit Recorder's Court he was convicted of assault with intent to do great bodily harm less than murder, contrary to M.C.L. § 750.84; M.S.A. § 28.279. On July 14, 1978, he was sentenced to 61/2 to 10 years imprisonment and appeals of right raising three issues.

I

Defendant first claims that the sentence violated constitutional standards in that the trial court penalized the defendant for exercising his right to have a jury trial instead of pleading guilty. Defendant analogizes to the United States Supreme [92 MICHAPP 672] Court's holding in North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) wherein the Court held that an increased sentence upon reconviction of a defendant, after having had his original conviction set aside, must affirmatively appear to be free of vindictiveness on the part of the sentencing judge:

"In order to assure the absence of such a motivation, we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentence proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal." 395 U.S. at 726, 89 S.Ct. at 2081.

This case is not on all fours with Pearce because it does not involve a reconviction, but it is well-settled that a sentencing judge may not take into consideration a defendant's refusal to plead guilty in determining the sentence. People v. Travis, 85 Mich.App. 297, 303, 271 N.W.2d 208 (1978), People v. Earegood, 383 Mich. 82, 84-85, 173 N.W.2d 205 (1970). The basis for this claim of error is a recorded conference that took place in the trial court's chambers immediately preceding commencement of trial. Defendant and his mother were present in chambers when the following discourse took place:

"My name, for the record, is David Cato, representing the defendant Frank Mathis in this matter.

"In a discussion I had with my client today and [92 MICHAPP 673] before today, which was Sunday the 25th, my client told me that he would like to plead guilty in this matter.

"The only difference is that your Honor before a week ago had mentioned a possibility of a year maximum in the case excuse me a year minimum in the case, and I think that's changed this morning.

"So I think my client is aware of that.

"As far as the plea this morning, I think he would like to speak up on that issue.

"DEFENDANT: Exactly I want to know how much time I'm getting.

"THE COURT: I don't know until I get a pre-sentence report. You can take a trial and take your chances on life.

"I do understand Mr. Barron Gay is paralyzed for the rest of his life. They don't expect him to live more than three or four years. I'm sure you will be around long after that, and you will be back with your parents.

"Now, you can go out and hear the trial, and I will hear all the gory details, and the sentence will be accordingly; or you can take a plea in here.

"I told your lawyer a week ago the sentence would be one to twenty years. Now we have twenty witnesses sitting out there and a jury panel sitting there. It's no longer one to twenty, I can assure you of that.

"No promise is made as to your sentence. I'm not going to make any promises today.

"We can start the trial right now. It's up to you. The trial will start in 60 seconds if you don't make up your mind.

"If you are innocent, you should go to trial. If you didn't intend to kill him, you should go to trial."

Neither defendant nor plaintiff enlighten us with a context surrounding the trial court's reference to the discussion of "a week ago". The record does not show any pretrial hearing occurring the week prior. Apparently the pretrial was conducted on May 11th because there is a form in the record entitled "Final Conference Memorandum" which includes the following information:

[92 MICHAPP 674] "PRESENT: The Hon. Joseph A. Gillis Date 5-11-78

"The court and counsel have reviewed the court file and all pleadings filed. The transcript of any preliminary examination, appearances of counsel, prior rulings of the Court, and all other necessary filings are present and in good order.

"The Court has informed the defendant of the Prosecutor's position regarding plea negotiations. The defendant understands that the Court will not accept any plea to a reduced charge and will not discuss sentence or other concessions after the close of the final conference."

This form is not signed, but bears signature lines for counsel for defense, assistant prosecuting attorney and defendant.

A motion was praeciped for June 2, 1978, before Judge Gillis on behalf of a co-defendant designated as a "motion to have juror questionnaire produced in courtroom on day of trial". The co-defendant pleaded on June 8, 1978, before Judge Gillis. There is nothing in the record that has anything to do with any proceeding in this case that took place a week prior to the trial date. We have no record of any kind which describes the context in which a communication with the defense lawyer was made regarding a one to twenty sentence.

This case presents a good example of difficulties which can arise when a trial judge actively participates in the plea bargaining process. We have said in dicta that trial courts should not actively participate in plea bargaining negotiations. People v. Bennett, 84 Mich.App. 408, 269 N.W.2d 618 (1978), Lv. den. 405 Mich. 835 (1979). We are well aware that in an overburdened high-crime population center trial courts are disposed...