People v. Smith

• Decision Date: 22 August 2017
• Docket Number: No. 332288,332288
• Citation: 321 Mich.App. 80,922 N.W.2d 615
• Parties: PEOPLE of the State of Michigan, Plantiff–Appellant, v. Virgil SMITH, Defendant–Appellee.
• Court: Court of Appeal of Michigan — District of US

321 Mich.App. 80

922 N.W.2d 615

PEOPLE of the State of Michigan, Plantiff–Appellant,

v.Virgil SMITH, Defendant–Appellee.

No. 332288

Court of Appeals of Michigan.

Submitted August 16, 2017, at Lansing.

Decided August 22, 2017, 9:15 a.m.

ON REMAND

Servitto, J.

This case is before us, as on reconsideration granted, People v. Smith , 501 Mich. 851, 899 N.W.2d 407, 2017 WL 3496629 (2017), to determine whether the trial court's order declaring a portion of defendant's plea agreement void was in error and whether the trial court's subsequent order denying the prosecution's motion to vacate defendant's plea constituted an abuse of discretion. This Court previously dismissed the appeal as moot. People v. Smith , unpublished opinion per curiam of the Court of Appeals, issued April 18, 2017 (Docket No. 332288), 2017 WL 1399983. We now affirm.

We stated the relevant facts in our prior decision:

In May 2015, defendant was involved in an altercation with his ex-wife. As a result, he was charged with domestic violence, MCL 750.81(2) ; malicious destruction of personal property, MCL 750.377a(1)(a)(i) ; felonious assault, MCL 750.82 ; and [carrying a firearm during the commission of a felony (felony-firearm) ], MCL 750.227b. On February 11, 2016, the prosecution and defendant entered into a plea agreement whereby defendant would plead guilty to the charge of malicious destruction of property and agreed both to resign his Senate seat and to refrain from holding public office during his five-year probationary period (which included a ten-month jail term). The remaining charges against the defendant would be dismissed. At the sentencing hearing, the trial court ruled sua sponte that the provisions of the agreement related to defendant’s Senate seat violated the constitutional principle of separation of powers and infringed on the people’s right to choose their representatives. Accordingly, the trial court declared those portions of the plea agreement void because they "offend[ ] the Constitution of the State of Michigan, [are] contrary to public policy and compromise[ ] the integrity of th[e] court." In all other respects, the court sentenced defendant in accordance with the plea agreement.

The prosecution subsequently moved to vacate defendant’s plea. The prosecution argued that in failing to resign, defendant had not complied with the plea agreement and that the prosecution should be permitted to negotiate a new plea deal given the trial court’s refusal to enforce the entirety of the original agreement. The trial court denied the prosecution’s motion. The trial court acknowledged that while plea agreements are akin to contracts, they must serve the interests of justice. The trial court then held that where the parties had initially indicated that the agreement protected the public and provided for punishment and rehabilitation, enforcement of the agreement without the "offending portion" would serve the interests of justice. [ Smith , unpub. op. 1–2 (alterations in original). ]

The trial court added that vacating the plea would harm the interests of justice because

[v]acating the plea would violate the fundamental principle that it is the right of the People to elect whom they chose to elect for office by allowing the prosecutor to pressure a member of the legislative branch to resign or face prosecution and likely imprisonment. Vacating the plea would violate the separation of powers set forth in the Michigan [C]onstitution, where only the Senate can discipline or remove one of its members convicted of this type of crime by allowing the prosecutor to pressure a member of the legislative branch to resign and face prosecution and likely imprisonment. Vacating the plea would violate public policy by allowing the prosecutor to dominate the legislative branch of government with the threat of forced resignation.

[And] granting the prosecution’s motion to vacate this plea would compromise the Court’s integrity by involving it in an act that violates public policy and offends the [C]onstitution.

On remand, we consider the prosecution's appeal of both the trial court's original order voiding a portion of defendant's plea agreement and its order denying the prosecution's motion to vacate defendant's plea.

A trial court's decision whether to set aside an accepted guilty plea is reviewed for an abuse of discretion. People v. Strong , 213 Mich.App. 107, 112, 539 N.W.2d 736 (1995). An abuse of discretion "occurs when the trial court chooses an outcome that falls outside the range of principled outcomes." People v. Lee , 314 Mich.App. 266, 272, 886 N.W.2d 185 (2016) (quotation marks and citation omitted). Issues of constitutional law are reviewed de novo. People v. Benton , 294 Mich.App. 191, 195, 817 N.W.2d 599 (2011).

On appeal, the prosecution argues that the trial court erred by voiding the portion of the plea agreement requiring defendant to resign his state Senate seat and to refrain from seeking elective or appointed public office during the five-year probationary period. The prosecution further argues that the trial court abused its discretion by refusing to allow the prosecution to withdraw the plea agreement and proceed to trial. The prosecution specifically contends that the plea agreement did not, as the trial court held, violate the separation of powers and that both defendant and the prosecution were entitled to receive the benefit of their end of the negotiated plea agreement.¹

The Michigan Constitution provides for the separation of powers: "The powers of government are divided into three branches: legislative, executive and judicial. No person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution." Const. 1963, art. 3, § 2. "While the Constitution provides for three separate branches of government, Const. 1963, art. 3, § 2, the boundaries between these branches need not be ‘airtight[.]’ " Makowski v. Governor , 495 Mich. 465, 482, 852 N.W.2d 61 (2014) (citations omitted). Indeed, the Michigan Supreme Court has held that this constitutional provision does not require " ‘that [the separate branches of government] must be kept wholly and entirely separate and distinct, and have no common link or dependence, the one upon the other, in the slightest degree.’ " Kent Co. Prosecutor v. Kent Co. Sheriff (On Rehearing) , 428 Mich. 314, 321–322, 409 N.W.2d 202 (1987), quoting Local 321, State, Co. & Muni. Workers of America v. Dearborn , 311 Mich. 674, 677, 19 N.W.2d 140 (1945), quoting Story, Constitutional Law (4th ed), p 380. Instead, "[t]he true meaning [of the Separation of Powers Clause] is that the whole power of one of these departments should not be exercised by the same hands which possess the whole power of either of the other departments; and that such exercise of the whole would subvert the principles of a free Constitution." Kent Co. Prosecutor . 428 Mich. at 322, 409 N.W.2d 202 (quotation marks and citations omitted).

Relevant to the instant matter, the Michigan Constitution contains a clause regarding the qualifications of an individual to serve as part of the state Legislature, including the state Senate:

Each senator and representative must be a citizen of the United States, at least 21 years of age, and an elector of the district he represents. The removal of his domicile from the district shall be deemed a vacation of the office. No person who has been convicted of subversion or who has within the preceding 20 years been convicted of a felony involving a breach of public trust shall be eligible for either house of the legislature. [ Const. 1963, art. 4, § 7.]

The Michigan Constitution identifies additional characteristics that disqualify someone from seeking public office:

A person is ineligible for election or appointment to any state or local elective office of this state and ineligible to hold a position in public employment in this state that is policy-making or that has discretionary authority over public assets if, within the immediately preceding 20 years, the person was convicted of a felony involving dishonesty, deceit, fraud, or a breach of the public trust and the conviction was related to the person's official capacity while the person was holding any elective office or position of employment in local, state, or federal government. This requirement is in addition to any other qualification required under this constitution or by law. [ Const 1963, art 11, § 8.]

Further, the Michigan Constitution states how a member of the state Senate can be forcibly removed from that position:

Each house shall be the sole judge of the qualifications, elections and returns of its members, and may, with the concurrence of two-thirds of all the members elected thereto and serving therein, expel a member. The reasons for such expulsion shall be entered in the journal, with the votes and names of the members voting upon the question. No member shall be expelled a second time for the same cause. [ Const. 1963, art. 4, § 16.]

The Michigan Constitution also expressly bars the executive branch of government, to which the prosecution belongs, People v. Conat , 238 Mich.App. 134, 150, 605 N.W.2d 49 (1999), from expelling members of the other two branches of government: "[The governor] may remove or suspend from office for gross neglect of duty or for corrupt conduct in office, or for any other misfeasance or malfeasance therein, any elective or appointive state officer, except legislative or judicial, and shall report the reasons for such removal or suspension to the legislature." Const. 1963, art. 5, § 10.

The language used in the state Constitution is clear: the Constitution specifically describes when an individual is ineligible to run for elective office, including as a state senator, and also reserves to the Legislature the right to determine when its own members should be expelled. The prosecution argues that the voluntary nature of defendant's decision...