People v. Siebert
| Decision Date | 07 September 1993 |
| Docket Number | 146737,Nos. 146736,s. 146736 |
| Citation | 507 N.W.2d 211,201 Mich.App. 402 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Douglas SIEBERT, Defendant-Appellee. PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Raymond OATMAN, Defendant-Appellee. |
| Court | Court of Appeal of Michigan — District of US |
Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of Research, Training, and Appeals, and Thomas M. Chambers, Asst. Pros. Atty., for the People.
Robert F. Mitchell, Detroit, for Douglas Siebert.
Mark Kriger, Southfield, for Raymond Oatman.
Before DOCTOROFF, C.J., and WEAVER and WHITE, JJ.
The people appeal the trial court's denial of the prosecutor's motion to withdraw from plea and sentence agreements after the court sentenced defendants to terms of years less than those set forth in the agreements. Defendants respond that their guilty pleas were validly accepted, they fully complied with the terms of the agreements to their prejudice, there is no authority for the prosecutor to withdraw from an agreement under such circumstances, and reinstatement of the original charges would be contrary to the Due Process and Double Jeopardy Clauses. We reverse.
Defendants were charged with delivery of over 650 grams of cocaine and conspiracy to deliver over 650 grams of cocaine. M.C.L. §§ 333.7401(1), 333.7401(2)(a)(i); M.S.A. §§ 14.15(7401)(1), 14.15(7401)(2)(a)(i). In a separate information, they were also charged with conspiracy to possess with intent to deliver marijuana. M.C.L. § 750.157a; M.S.A. § 28.354(1), M.C.L. §§ 333.7401(1), 333.7401(2)(c); M.S.A. §§ 14.15(7401)(1), 14.15(7401)(2)(c). Defendant Siebert additionally was charged with gambling, taking bets, and conspiracy to gamble. M.C.L. § 750.301; M.S.A. § 28.533, M.C.L. § 750.157a; M.S.A. § 28.354(1). The penalty for delivery of over 650 grams of cocaine is life imprisonment without parole. 1
Defendants and the prosecutor entered into plea and sentence agreements that provided that the defendants would be permitted to plead guilty to the lesser offenses of conspiracy to deliver, and delivery of, between 225 and 650 grams of cocaine, M.C.L. § 333.7401(2)(a)(ii); M.S.A. § 14.15(7401)(2)(a)(ii); M.C.L. § 750.157a; M.S.A. § 28.354(1), would cooperate with state and federal drug investigations by providing information, testimony, and other assistance, and would be sentenced to twenty to thirty years as contemplated by statute and that the charges concerning marijuana, gambling, and conspiracy to gamble would be dismissed.
Defendants pleaded guilty as agreed in October and November 1990. The terms of the agreements were discussed on the record by the judge and counsel. The judge accepted the pleas. Sentencing was deferred to obtain presentence reports and so that defendants could perform in accordance with their agreement to cooperate with drug enforcement authorities. In the months that followed, both defendants cooperated extensively.
Defendants were sentenced approximately one year later, in October 1991. In a presentence proceeding shortly before sentencing, the judge said he jealously guarded his sentencing prerogatives and had uniformly told parties that he would not be bound by any sentence bargain or agreement. The judge stated that he considered himself free to exercise his discretion to depart from the statutorily prescribed minimum sentence for substantial and compelling reasons, as provided by M.C.L. § 333.7401(4); M.S.A. § 14.15(7401)(4). The judge did not indicate what sentence he thought would be appropriate. The prosecutor agreed that the court retained complete sentencing discretion, but argued that under People v. Killebrew, 416 Mich. 189, 330 N.W.2d 834 (1982), a prosecutor may withdraw from a plea and sentence agreement if the court decides not to sentence in accordance with the agreed-upon terms.
After the court sentenced Siebert to five to thirty years, and Oatman to three to thirty years, the prosecutor moved to withdraw from the plea agreements. The court denied the motion. The prosecutor dismissed the charges concerning marijuana, gambling, and conspiracy to gamble. The people now appeal, contending that the prosecutor was entitled to withdraw from the plea and sentence agreements when the court declined to sentence in accordance with the agreements.
Defendants argue that the only authority for a prosecutor's motion to vacate a defendant's plea is found in MCR 6.310(C), which states:
Vacation of Plea before Sentence. On the prosecutor's motion, the court may vacate a plea before sentence is imposed if the defendant has failed to comply with the terms of a plea agreement.
Defendants assert that the prosecutor failed to establish a right to withdraw under this court rule because the motion was made after the sentences were imposed and because defendants have more than fully complied with the terms of the plea agreements.
While MCR 6.310(C) does not authorize a prosecutor to withdraw under these circumstances, the prosecutor does not rely on this court rule and does not assert a right to withdraw on the basis of defendants' failure to cooperate. Rather, the prosecutor seeks to withdraw on the basis of the court's failure to honor the agreements. We do not read MCR 6.310(C) as stating the only basis on which the prosecutor may withdraw or as precluding withdrawal under these circumstances.
Defendants rely on People v. Pool, 183 Mich.App. 191, 454 N.W.2d 121 (1989), where a panel of this Court held that the trial court erred in resentencing the defendant in response to the prosecutor's motion to vacate sentence and resentence on the ground that the original sentence did not comply with the sentence agreement. In Pool, the prosecutor did not mention the agreement at the time of sentencing, did not object to the sentence when imposed, and did not state an intention to rely on the agreement until one month after sentencing. Additionally, the prosecutor, in effect, sought specific performance of the agreement rather than to be allowed to withdraw from the agreement. Thus, Pool is distinguishable and, in all events, is not binding because it precedes Administrative Order Nos. 1990-6 and 1992-8.
Defendants also rely on People v. Lowe, 172 Mich.App. 347, 431 N.W.2d 257 (1988). In Lowe, the defendant asserted that the trial court erred in permitting a plea agreement that allowed the prosecutor to withdraw from the agreement if the sentence recommendation was not accepted by the court. 2 A panel of this Court observed that prosecutors are aware that sentence recommendations are only that and that sentencing judges retain exclusive authority with regard to sentences, concluded that the trial court understood that it was not bound by the recommendation, and found no error in the court's following the recommendation. The Court added:
We do not decide here what the consequences would have been if the trial court had, in the exercise of its sentencing authority, given defendant a more lenient sentence. Defendant's plea had already been accepted. Would the prosecution then be forced to appeal defendant's conviction and argue that the defendant's plea should be set aside? That defendant should face a full trial and possibly a greater sentence? We leave that question for another panel when properly posited. [Id. at 353, 431 N.W.2d 257.]
We read Lowe as recognizing that the issue presented in the instant case had yet to be decided. 3
Defendants stress that while Killebrew and MCR 6.302(C)(3) expressly provide a defendant with the right to withdraw from a plea agreement where a judge declines to follow its terms, neither provides such a right to prosecutors. We conclude, however, that while Killebrew and MCR 6.302(C)(3) do not expressly provide prosecutors with a right to withdraw, neither is inconsistent with such a right. Indeed, Killebrew implies such a right in the case of a sentence agreement.
In Killebrew, the Supreme Court held that where a prosecutor and a defendant agree to a specific sentence disposition in exchange for a guilty plea, the trial court, after considering the presentence report, can either accept the agreement or reject it. Id., 416 Mich. at 206-207, 330 N.W.2d 834. If the court accepts the agreement, it is obliged to sentence the defendant according to the agreed-upon terms. If the court concludes that the sentence is inappropriate to the circumstances or the offender, it is obliged to reject the plea and inform the defendant that it will not accept the plea or be bound by the agreement. Id. at 207, 330 N.W.2d 834. In the case of a sentence recommendation, which, in contrast to a sentence agreement, merely suggests a particular sentence as a nonbinding term of the agreement, the trial court can accept the guilty plea but refuse to be bound by the recommended sentence. The court, after indicating the sentence it intends to impose, is obliged to offer the defendant the opportunity to withdraw the guilty plea. Id. at 209-210, 330 N.W.2d 834. 4
MCR 6.302(C)(3), incorporates and clarifies the holding in Killebrew. Staff Comment, MCR 6.302. This subrule expands the judicial options set forth in Killebrew to four:
If there is a plea agreement and its terms provide for the defendant's plea to be made in exchange for a specific sentence disposition or a prosecutorial sentence recommendation, the court may
(a) reject the agreement; or
(b) accept the agreement after having considered the presentence report, in which event it must sentence the defendant to the sentence agreed to or recommended by the prosecutor; or
(c) accept the agreement without having considered the presentence report; or
(d) take the plea agreement under advisement.
If the court accepts the agreement without having considered the presentence report or takes...
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...may consider and negotiate a penalty that he or she deems necessary to serve the interests of the People.' " People v. Siebert , 201 Mich.App. 402, 415, 507 N.W.2d 211 (1993), quoting People v. Farrar , 52 N.Y.2d 302, 306-307, 437 N.Y.S.2d 961, 419 N.E.2d 864 (1981).5 In ruling that the bar......
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People v. Siebert
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