People v. Serr
| Decision Date | 10 December 1976 |
| Docket Number | Docket No. 25751 |
| Citation | 73 Mich.App. 19,250 N.W.2d 535 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. George Edward SERR, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Fitzgerald, Dumon & Geddis by George Geddis, III, Owosso, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Gerald D. Lostracco, Pros. Atty., for plaintiff-appellee.
Before BASHARA, P.J., and CAVANAGH and ANDERSON, * JJ.
Defendant pled guilty to receiving or concealing stolen property in excess of $100.00 contrary to M.C.L.A. § 750.535; M.S.A. § 28.803. He was sentenced to 2 to 5 years. On pronouncement of sentence defense counsel moved to vacate the guilty plea. The defense attorney submitted the question to the court on the basis of his sworn petition and the transcript of the plea proceedings, without further evidence. The court denied the motion and this appeal as of right was taken.
The plea was a result of plea bargaining placed on the record. Defendant was to plead guilty, as he did. In exchange the prosecution would move to dismiss a pending prosecution for delivery of marijuana contrary to M.C.L.A. § 335.341(1)(c); M.S.A. § 18.1070(41)(1)(c) and a larceny charge under a city ordinance would be dismissed.
Defendant claims his plea was induced by his understanding of a plea bargain as disclosed by a certain statement during the plea taking process. He claims this limited the court to imposition of a maximum sentence of one year in jail.
The prosecutor stated the plea bargain on the record, including the following:
'It is further a part of the plea negotiation that I recommend, and I will recommend to the court at this time, that the Defendant be sentenced to one year in the county jail.'
The defense attorney said, after the prosecutor had stated the agreement on the record:
'It is also part of the plea bargain, as Mr. Lostracco stated, that this matter would be considered as a county jail sentence rather than any sentence in Jackson Prison.'
Thereafter the court informed defendant he could be imprisoned in a state prison for up to five years or fined up to $2500.00. The defendant, in response to the court's question, said he understood this.
The court then recognized the plea bargain on the record, which would result in a dismissal of the delivery of marijuana charge and the ordinance matter. In addition, the court said the prosecutor is '. . . recommending that I sentence you to not over one year in the county jail'. This was confirmed by the prosecutor and defense counsel and the following occurred:
'The Court: Do you understand that, Mr. Serr, that this is the entire plea bargain, there is nothing else in it. Do you understand this?
The Defendant: Yes, sir.
The Court: Do you want me to confirm it, that is, accept it for you?
The Defendant: Yes.
The Court: If that is the case, how do you wish to plead?
The Defendant: Guilty.'
The defendant was informed of his rights which he would waive as required by GCR 1963, 785.7(1)(d). The court learned he was on probation or parole and the following exchange took place:
'The Court: He already has been. Do you understand, Mr. Serr, that despite the plea negotiation here, that recommendation is not binding upon me. I will consider it very, very highly, but it is not binding and at this time I do not know what my sentence will be, except that it will not be over the statutory limit I have told you of five years. Do you understand this?
The Defendant: Yes.
The Court: That the court makes no promise to you what the sentence will be. Do you understand this?
The Defendant: Yes.
The Court: And knowing this do you want to plead guilty?
The Defendant: Yes.'
The defendant then acknowledged there were no other promises and that his attorney had not told him to plead guilty or influenced him except as stated in court.
The appellant's claim of error hinges on what he claims was an understanding on his part that the sentence would be no more than a year in jail, and no prison sentence.
The defendant was represented by counsel throughout. The plea process required by GCR 1963, 785.7 was followed meticulously and with understanding by the court of the statements as they developed. The court adapted questions to the responses of the defendant, his attorney and the prosecutor. It was a 'textbook plea'. Defense counsel took no issue with the judge when defendant was advised that the court was not bound by the prosecutor's recommendation. It is the opinion of this court that where the letter and intent of GCR 1963, 785.7 are followed the defendant is bound by his answers and will not be heard to deny the truth of his statements to the court.
The travail of the Michigan Supreme Court in fashioning the rule to meet constitutional and humanitarian and common sense standards should not be rendered totally ineffective by denials easily conjured up after a sentence not to the liking of the defendant.
GCR 1963, 785.7(4)(b) specifically requires the judge to state whether he has agreed upon the possibility of a plea or the possible sentence.
In the case at bar the court clearly stated it had not agreed upon a sentence but left the matter open within the limits of the statutory maximum sentence. Defendant acknowledged he understood, and knowing this, wanted to plead guilty.
The trial judge did not abuse his discretion when he refused to set aside the guilty plea. It was clear on the record that in exchange for the guilty plea the prosecutor would recommend no more than one year in jail and would dismiss two other charges. It was equally clear this agreement was carried out. The defendant was given an opportunity to change his mind after he was advised the recommendation was not binding on the judge. He chose to continue his guilty plea with full knowledge of what could happen.
But there is a deeper issue involved here. Is there a limitation on the testimony which the defendant or his attorney can offer? Defendant's motion for withdrawal of the guilty plea was brought under GCR 1963, 785.7(6)(b): 'After the court accepts the plea: (i) the court may set it aside on defendant's motion.'
The plea had been accepted under GCR 1963, 785.7(5): 'The court shall not accept the plea unless it is convinced that the plea is understanding, voluntary and accurate.'
GCR 1963, 785.8 relates to certain procedures upon sentencing.
It is noted that there is no time limitation placed upon the filing of defendant's motion to set aside a plea. People v. McPherson, 24 Mich.App. 515, 180 N.W.2d 340 (1970). It is clear that until the plea has been accepted on the record the defendant may withdraw his plea as a matter of right. Thereafter it becomes a matter addressed to the court's discretion to be decided at an evidentiary hearing.
Upon a motion to set aside a plea, accompanied by a proper affidavit, an evidentiary hearing must be held where the critical facts are in dispute. People v. Michael Anthony Williams, 391 Mich. 832 (1974); People v. Bartlett, 17 Mich.App. 205, 169 N.W.2d 337 (1969).
'If the record made before a defendant tenders a guilty plea does not factually support claims he wishes to urge on appeal, he must first move in the trial court to set aside the plea, and seek a separate record factually supporting the claims.' People v. Boone, 68 Mich.App. 650, 652, 244 N.W.2d 4, 5 (1976). But Boone held that the defendant was not entitled to an evidentiary hearing in the absence of an affidavit setting out specific allegations. He in effect had waived his right to an evidentiary hearing. This is an example of evidentiary estoppel.
Except for People v. Boone, supra, all the earlier cases arose before the present requirements of tripartite personal confirmation of a plea bargain fully placed upon the record.
There is no inconsistency between the requirement of an evidentiary hearing as to voluntariness and understanding and the limitation of admissible evidence. For example, the claim of being under the influence of drugs at the time of the plea may be susceptible of proof by evidence from the defendant unless he was specifically asked about it. Testimony of others would be admissible.
Undisclosed agreements not put on the record can be testified to by others than the prosecutor, defense attorney or defendant.
It is a rule of evidentiary estoppel that is here recognized as a logical result of the solemn inquires of GCR 1963, 785.7 into which (1) the constitutional protections have been incorporated, (2) the terms of a plea bargain (if any) are confirmed by all the participants, and (3) the prosecutor and defense attorney have specifically concurred in the regularity of the proceedings.
Earlier cases here cited have not considered the full effect of the solemn process mandated by GCR 1963, 785.7 (1)--(3).
GCR 1963, 785.7 was drafted to assure that a plea would be a solemn proceeding in open court during which the defendant would be addressed personally by the court and would personally respond to the court to assure that any plea offered was made with full understanding: (1) of the constitutional and other legal rights of the defendant, (2) of the consequences of the plea in terms of possible penalty, (3) that there was no coercion or hidden promise or undisclosed mental reservation affecting the offering of the plea, and (4) that the defendant did in fact do the acts constituting the offense to which the plea is offered. It is as solemn an occasion as the trial of the matter. It differs from a trial in that the defendant himself must respond to the questions as to his understanding of his rights and of the plea bargain, if any, the voluntariness of the plea and the commission of the offense. The elaborate process devised by the court has as its purpose protection of the accused and of the public as well as certainty and finality of the facts accepted by the court on which...
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