People v. Peete

• Decision Date: 21 November 1980
• Docket Number: Docket No. 45342
• Citation: 301 N.W.2d 53,102 Mich.App. 34
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lad D. PEETE, Defendant-Appellant. 102 Mich.App. 34, 301 N.W.2d 53
• Court: Court of Appeal of Michigan — District of US

Page 53

301 N.W.2d 53

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lad D. PEETE, Defendant-Appellant.

Docket No. 45342.

102 Mich.App. 34, 301 N.W.2d 53

Court of Appeals of Michigan.

Nov. 21, 1980.

Released for Publication Jan. 29, 1981.

[102 MICHAPP 36] James R. Neuhard, State Appellate Defender, R. Steven Whalen, Asst. State Appellate Defender, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., E. Reilly Wilson, Appellate Chief, Asst. Pros. Atty., Michael D. Lehto, Asst. Pros. Atty., for plaintiff-appellee.

Before BEASLEY, P. J., and CAVANAGH and PORTER, ^* JJ.

PER CURIAM.

On March 7, 1979, defendant plead guilty to two counts of first-degree criminal sexual conduct, M.C.L. § 750.520b; M.S.A. § 28.788(2), one count of unarmed robbery, M.C.L. § 750.530; M.S.A. § 28.798, and one count of breaking and entering with intent to commit larceny, M.C.L. § 750.110; M.S.A. § 28.305. He received an agreed-upon life sentence for each of the criminal sexual conduct convictions and a 10 to 15 year sentence on each of the other two counts. Defendant appeals as of right, raising two issues.

First, defendant contends his plea-bargain agreement was illusory. Defendant was originally charged in a six-count information for offenses committed on December 1, 1978. Counts I and II alleged two acts of sexual penetration that occurred under circumstances involving an unspecified[102 MICHAPP 37] other felony. Counts III and IV involved the same two acts of penetration but alleged the alternative statutory ground that these acts were committed while being aided or abetted by one or more other persons and while using force or coercion. Counts V and VI alleged unarmed robbery and breaking and entering an unoccupied dwelling with intent to commit larceny.

The plea-bargain agreement incorporated five considerations, some of which related to other offenses with which defendant was also charge. Defendant agreed to plead guilty to Counts I, II, V and VI, with a further sentence agreement that he would receive life sentences on Counts I and II, and a 15 year maximum sentence for Counts V and VI. Counts III and IV were dropped pursuant to the agreement. The defendant also agreed to plead guilty to a reduced charge of second-degree murder in another case and to receive a life sentence for that offense. The prosecution also agreed not to file a supplemental information charging defendant as an habitual offender. Finally, it was agreed that the charges of unarmed robbery and kidnapping, which arose from a separate transaction, would also be dismissed.

Defendant correctly argues that, where a plea is offered pursuant to a bargain with the prosecutor, voluntariness depends upon the defendant's knowledge of the actual value of the bargain. People v. Lawson, 75 Mich.App. 726, 255 N.W.2d 748 (1977), People v. Huizar, 89 Mich.App. 224, 280 N.W.2d 494 (1979). Where the benefits of the bargain are grossly exaggerated, the plea is not voluntary, and it should be vacated. Lawson, supra, 75 Mich.App., 730, 255 N.W.2d 748.

Quoting Hammond v. United States, 528 F.2d 15, 19 (CA 4, 1975), the Court in Lawson, supra, 75 Mich.App. 730, 255 N.W.2d 748, stated:

[102 MICHAPP 38] " '(I)n order to plead voluntarily, a defendant must know the direct consequences of his plea, including "the actual value of any commitments made to him." Where, as here, counsel's alleged advice, corroborated by the information supplied by the court, grossly exaggerated the benefit to be derived from the pleas of guilty, it would follow that the pleas were not voluntary.' "

Where the facts in a case indicate a plea is voluntary, whether or not defendant received consideration in return, the plea will be upheld. People v. Smith, 407 Mich. 906, 907, 289 N.W.2d 928 (1979), People v. James, 90 Mich.App. 424, 282 N.W.2d 344 (1979). Clearly, where the value of a bargain is genuine, is valid, and is known to a defendant, that plea will be upheld. People v. Peters, 95 Mich.App. 589, 291 N.W.2d 133 (1980). Thus, the fact that the dropped Counts III and IV arose from the same two sexual acts as Counts I and II and would not have supported separate criminal convictions would not by itself invalidate the plea.

Defendant also argues that the agreement not to file a supplemental information charging him as an habitual offender under M.C.L. § 769.11; M.S.A. § 28.1083, was meaningless when defendant received an agreed-upon life sentence. He argues that, under the plea agreement, he received two life sentences, so that, even had he been sentenced to a maximum punishment for being a third felony offender, he could not have received any greater punishment. While defendant may not have received a sentence benefit from this plea agreement on this point, it is widely recognized that sentence consequences are not the only benefits that may be received in plea bargaining. A conviction with no effect on a sentence may punish a defendant in several ways. Such a conviction may adversely impact parole considerations, among others. We [102 MICHAPP 39] reiterate, however, the fact that the defendant may have received reduced, little, or no consideration from this promise by the prosecutor would not by itself invalidate the plea.

Finally, it should be noted that "valuable" consideration flowed to the defendant from the agreement to dismiss the charges of unarmed robbery and kidnapping arising out of a separate transaction for the reason indicated above.

Most importantly, defendant argues that the prosecutor's plea agreement, which included a promise to reduce a separate and unrelated first-degree murder charge to second-degree murder, was illusory when the offense fell under M.C.L. § 791.233; M.S.A. § 28.2303, as amended. First-degree murder carries a mandatory life sentence with no possibility of parole. M.C.L. § 750.316; M.S.A. § 28.548 and M.C.L. § 791.234; M.S.A. § 28.2304. Under the law in effect before December 10, 1978, defendant's agreement to accept a life sentence for second-degree murder would have made him eligible for parole in 10 years. M.C.L. § 791.234; M.S.A. § 28.2304. The murder that was the subject of the plea agreement occurred after December 10, 1978, however, so it falls within the ambit of M.C.L. § 791.233; M.S.A. § 28.2303, as amended, which eliminated good time, special good time, and special parole for certain offenses. ¹ The Attorney General, in Opinion No. 5583, issued October 16, 1979, interpreted M.C.L. § 791.233; M.S.A. § 28.2303, as amended, as precluding parole consideration for any prisoner with a life sentence. Defendant argues that the value of all of the above-described aspects of the plea bargain were thereby rendered void.

[102 MICHAPP 40] We note that defendant has filed a separate appeal from the murder conviction, challenging the plea-taking court's noncompliance with GCR 1963, 785.7. In that appeal, however, defendant failed to raise the issue of the applicability of M.C.L. § 791.233; M.S.A. § 28.2303, as amended. In the instant case, the record reflects that the defendant was well advised and understood all of the consequences of this plea agreement. There is no allegation nor have we any evidentiary record establishing that he was misinformed as to the effect of any of the facets of the plea bargain. If defendant believes his plea bargain was illusory because of the sentence consequences of his plea to the murder charge, he should challenge that plea in the trial or appellate court. The trial court taking the murder plea may establish by evidentiary record that the defendant knew that he was faced with a possible, probable, or legally-mandated, nonparolable life sentence. The trial court may also find that the defendant was misinformed and set aside his plea. The trial court may find that something else was the intent of the parties to the plea agreement and specifically enforce the same. Finally, the trial court or an appellate court may determine that a second-degree murder life sentence is a parolable offense and give defendant the benefits of his plea bargain that he argues for.

Defendant's second challenge to his conviction is that he has been impermissibly placed in double jeopardy ² and that either the unarmed robbery or [102 MICHAPP 41] the breaking and entering conviction must be reversed because one was an essential element and, therefore, a necessarily lesser and included offense of first-degree criminal sexual conduct.

Under the criminal sexual conduct statute, an act of sexual penetration that occurs under circumstances involving the commission of any other felony is first-degree criminal sexual conduct. M.C.L. § 750.520b(1)(c); M.S.A. § 28.788(2)(1)(c). The information charging defendant did not specify what felony was being relied upon to support this charge. The information did, however, charge defendant with two other felonies: breaking and entering and unarmed robbery. The factual basis elicited at the plea-taking proceeding supports a finding that the criminal sexual conduct occurred under circumstances involving the unarmed robbery. Defendant's accomplice took a checkbook from the victim during the sequence of events that constituted criminal sexual conduct. The breaking and entering, however, occurred at a later time and in a different location, so, that offense cannot be regarded as having occurred in those circumstances. We must therefore decide if convictions for both first-degree criminal sexual conduct and the felony of unarmed robbery can be sustained.

We note that this case involves an application of the traditional double jeopardy restraint on courts and prosecutors which prevents imposing double punishment and conviction for a single act. This case does not involve a challenge to a clear legislative intent to doubly punish for a single criminal act. See People v. Jankowski, 408 Mich. 79, 85-86, 289 N.W.2d 674 (1980), Wayne County Prosecutor v....