People v. Smith
| Decision Date | 01 May 2020 |
| Docket Number | COA: 349563,SC: 160351 |
| Citation | 942 N.W.2d 23 (Mem) |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Virgil SMITH, Defendant-Appellee. |
| Court | Michigan Supreme Court |
On order of the Court, the application for leave to appeal the August 15, 2019 order of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should now be reviewed by this Court.
I concur in the Court’s denial of leave to appeal, but I write separately to note that I do so specifically because of the interlocutory posture of this case. The Court of Appeals denied leave to appeal because plaintiff failed to show a need for immediate appellate review, and this Court denies leave because it is not persuaded that the question presented should now be reviewed. I believe Justice MARKMAN has raised a number of fair concerns, which I take very seriously. I concur in denying leave not because I disagree with his concerns, but rather because I believe the development of a trial court record will facilitate appellate review of these issues.
Defendant, a former state senator, discharged a rifle at his ex-wife’s car and into the air in her presence, and the prosecutor consequently charged him with felonious assault, MCL 750.82 ; domestic violence, MCL 750.81(2) ; malicious destruction of personal property (valued at $20,000 or more), MCL 750.377a(1)(a)(i ) ; and possessing a firearm during the commission of a felony (felony-firearm), MCL 750.227b. In February 2016, the prosecutor and defendant entered into a plea agreement whereby defendant would plead guilty to malicious destruction of personal property (valued at $20,000 or more), serve 10 months in jail, serve five years of probation, resign his position as a state senator, not "hold elective or appointed office during full pendency of probation," and comply with other miscellaneous terms that are not relevant here.
The trial court accepted the agreement and defendant pleaded guilty. However, at sentencing, the trial court sua sponte ruled that the resignation and "bar to office" terms of the plea agreement were unconstitutional and thus invalid. The prosecutor promptly moved to vacate the plea, explaining at the motion hearing that "our position is if the Court could not go along with it then you should allow us the opportunity to withdraw the plea because that is not what we bargained for." The trial court nonetheless refused to allow the prosecutor to withdraw from the plea agreement and denied the motion. At about the same time, defendant resigned from the state senate. The prosecutor sought leave to appeal in the Court of Appeals, challenging both the trial court’s decision sua sponte to invalidate the two terms of the agreement and, alternatively, its refusal to vacate the plea. The Court of Appeals granted leave in August 2016. However, in April 2017, the Court of Appeals dismissed the appeal, reasoning that "[b]ecause defendant voluntarily resigned his seat and appears to have no intention of running for public office during his term of probation, we decline to address the issues regarding the voiding of the plea agreement as moot." People v. Smith , unpublished opinion per curiam of the Court of Appeals, issued April 18, 2017 (Docket No. 332288), p. 2, 2017 WL 1399983. In addition, the Court of Appeals ruled that vacating the plea despite the absence of these two terms would be "fundamentally unfair." Id. at 3.
Within hours of the Court of Appeals’ decision, defendant filed petitions for a seat on the Detroit City Council (an election that he ultimately lost in November 2017). The prosecutor sought leave to appeal in this Court, and we remanded to the Court of Appeals as on reconsideration granted. People v. Smith , 501 Mich. 851, 899 N.W.2d 407 (2017). On remand, the Court of Appeals affirmed the trial court in all respects in a split decision. People v. Smith (On Remand ), 321 Mich. App. 80, 922 N.W.2d 615 (2017), rev'd in part 502 Mich. 624, 918 N.W.2d 718 (2018). Judge RIORDAN in dissent would have concluded that the challenged terms of the agreement were not unconstitutional and, alternatively, that the trial court erred by refusing to vacate the plea. Id. at 104-105, 922 N.W.2d 615 ( RIORDAN , P.J., dissenting). The prosecutor then sought leave to appeal in this Court, and we scheduled oral argument on the application. People v. Smith , 501 Mich. 852, 900 N.W.2d 619 (2017). Ultimately, a plurality of this Court adopted the rationale of a decision of the United States Court of Appeals for the Ninth Circuit concerning "public policy," Davies v. Grossmont Union High Sch. Dist. , 930 F.2d 1390 (C.A. 9, 1991) --what I view to be an aberrant decision in support of an unusually broad exercise of the judicial power--in holding that the bar-to-office term was unconstitutional. People v. Smith , 502 Mich. 624, 634-635, 918 N.W.2d 718 (2018) (opinion by VIVIANO , J.). In addition, a majority of this Court held that the issue concerning the resignation term was moot and that the trial court had erred in not vacating the plea, and it accordingly remanded to the trial court for further proceedings. Id. at 628, 918 N.W.2d 718 (opinion by VIVIANO , J.); id. at 648-649, 918 N.W.2d 718 ( CLEMENT , J., concurring). Justice ZAHRA and myself concurred with the majority only with respect to the mootness of the resignation term and dissented with respect to the invalidity of the bar-to-office term. Id. at 659, 918 N.W.2d 718 ( MARKMAN , C.J., concurring in part and dissenting in part).
On remand, the prosecutor offered to accept defendant’s plea to malicious destruction of personal property (valued at $20,000 or more) and felonious assault in exchange for the dismissal of the domestic violence and felony-firearm charges. The plea offer would have also required a "probationary period" but no additional jail time. Defendant then filed a motion to dismiss the case, asserting that the prosecutor, by requiring him to plead guilty to two felonies in the plea offer, was acting in a "vindictive" manner because he had run for a seat on the Detroit City Council. The trial court held that defendant established a prima facie case of actual prosecutorial vindictiveness on the basis of the following three facts: (1) for a period of time in 2016, the prosecutor refused to engage in plea bargaining in cases pending before the trial judge involved in this case; (2) the prosecutor informed the media in the early stages of this case that her office ordinarily does not dismiss felony-firearm charges when the firearm is discharged in the course of the crime but that she supported dismissal of that charge in this case because of defendant’s mental health issues; and (3) the prosecutor was upset that the trial court refused to enforce the entirety of the original plea agreement. The trial court thus ordered an evidentiary hearing, at which the prosecutor will presumably be required to testify as to the basis of her plea negotiations in this case. The prosecutor sought leave to appeal in the Court of Appeals, which the panel denied by a 2-1 vote, People v. Smith , unpublished order of the Court of Appeals, entered August 15, 2019 (Docket No. 349563), and now seeks leave to appeal in this Court.
"It is a violation of due process to punish a person for asserting a protected statutory or constitutional right." People v. Ryan , 451 Mich. 30, 35, 545 N.W.2d 612 (1996). Id. "Actual vindictiveness will be found only where objective evidence of an ‘expressed hostility or threat’ suggests that the defendant was deliberately penalized for his exercise of a procedural, statutory, or constitutional right." Id. , quoting United States v. Gallegos-Curiel , 681 F.2d 1164, 1168 (C.A. 9, 1982). As the United States Supreme Court has explained, "for an agent of the State to pursue a course of action whose objective is to penalize a person’s reliance on his legal rights is ‘patently unconstitutional.’ " Bordenkircher v. Hayes , 434 U.S. 357, 363, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978), quoting Chaffin v. Stynchcombe , 412 U.S. 17, 32 n. 20, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973). "But in the ‘give-and-take’ of plea bargaining, there is no such element of punishment or retaliation so long as the accused is free to accept or reject the prosecution’s offer." Bordenkircher , 434 U.S. at 363, 98 S.Ct. 663.
As an initial matter, it is questionable whether seeking a seat on the Detroit City Council, a right that is outside of the criminal justice system, constitutes the type of a "statutory or constitutional right" that can establish the basis for a claim of prosecutorial vindictiveness. See Maddox v. Elzie , 345 U.S. App. D.C. 58, 67, 238 F.3d 437 (2001) () (emphasis added); United States v. Raymer , 941 F.2d 1031, 1041 (C.A. 10, 1991), quoting United States v. Goodwin , 457 U.S. 368, 384, 102 S.Ct. 2485, 73 L.Ed.2d 74 (1982) (). But even more pertinently, the three facts of this case specifically addressed by the trial court do not justify the extraordinary judicial action of requiring the prosecutor to justify in open court her rationale for engaging in a particular course of plea negotiations.
First, the fact that the prosecutor had instituted a "no plea" policy in the trial judge’s courtroom for a brief period of time in 2016 bears no logical relationship, one way or the other, to the...
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