People v. Strickland, Docket No. 28472
| Decision Date | 06 September 1977 |
| Docket Number | Docket No. 28472 |
| Citation | 78 Mich.App. 40,259 N.W.2d 232 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Wyatt STRICKLAND, Jr., Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Dwan & Doyle by Thomas J. Doyle, Saginaw, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Robert Kaczmarek, Pros. Atty., for plaintiff-appellee.
Before D. E. HOLBROOK, Jr., P. J., and ALLEN and FREEMAN, * JJ.
This appeal 1 requires that we either extend or limit the following holding in People v. McMiller, 389 Mich. 425, 434, 208 N.W.2d 451, 454 (1973).
"(W)e hold that upon the acceptance of a plea of guilty, as a matter of policy, the state may not thereafter charge a higher offense arising out of the same transaction."
The precise question presented is this: Where a defendant charged with two armed robberies pleads guilty in one case in return for dismissal of the other, may the prosecutor later reinstate both charges if the defendant successfully appeals his plea-based conviction?
The present case is factually distinguishable from McMiller in two respects. First, the two charges in this case did not arise from the "same transaction". Second, the prosecutor did not charge a "higher" offense; rather, he charged two offenses of equal rank where the defendant had previously been convicted of only one. While the facts are distinguishable, the defendant points out that the policy considerations underlying McMiller are also present in this case.
"Allowing trial on a higher charge following reversal of a plea-based conviction of a lesser offense would (1) discourage exercise of the defendant's right to appeal a conviction claimed to be based on an improperly accepted plea, and (2) tend to insulate from appellate scrutiny non-compliance with the guilty plea procedure established by the statute and the court rule." 389 Mich. at 432, 208 N.W.2d at 453.
For the reasons outlined later in this opinion (Section I), we hold the McMiller does not require reversal of the defendant's conviction. We also reject two other less meritorious arguments raised by the defendant (Sections II and III).
On February 24, 1973, a lone gunman robbed the Martinez Grocery in Saginaw. One week later, Scott's Auto Sales in Saginaw was similarly victimized. The defendant was arrested and charged in the Scott's case and immediately became a suspect in the Martinez case. 2 While he was in custody on the Scott's charge, he confessed to committing the Martinez robbery.
Following negotiations, the defendant pleaded guilty to armed robbery in the Scott's case on April 16, 1973. That plea was taken by Saginaw County Circuit Judge Eugene Snow Huff who later imposed a 5-15 year sentence. The prosecutor then dismissed the charges in the Martinez case (this case) as required by the plea bargain.
The plea-based conviction in the Scott's case was appealed to another panel of this Court. The conviction was reversed and remanded in an unpublished opinion dated January 2, 1975, because Judge Huff had failed to give all of the warnings required by GCR 1963, 785.7. On remand, the prosecutor renewed the armed robbery charge in the Scott's case 3 and filed a new complaint charging armed robbery in the previously dismissed Martinez case.
The Scott's case was set for trial before Judge Huff on September 16, 1975. The defendant appeared with his attorney and once again pled guilty. The prosecutor emphasized and the defendant and his attorney acknowledged that the original plea bargain was no longer being offered to the defendant. The prosecutor clearly stated his intention to proceed with the Martinez case even if the defendant pled guilty in the Scott's case. After accepting the plea, Judge Huff again sentenced the defendant to 5-15 years in prison. That conviction has not been appealed.
The Martinez case was set for a jury trial before Judge Armstrong on February 3, 1976. A Walker 4 hearing was held before the trial started in order to determine the voluntariness of the defendant's confession. The defendant testified that a Detective Washington had promised that he would not be prosecuted for the Martinez robbery if he confessed. But Washington denied making any promises. The judge accepted Washington's version of the events and ruled that the confession was voluntary and admissible.
The defendant then asked the judge to exercise his discretionary power to prevent the prosecutor from impeaching the defendant with evidence of two prior felony convictions. M.C.L.A. § 600.2159; M.S.A. § 27A.2159, People v. Jackson, 391 Mich. 323, 217 N.W.2d 22 (1974). The judge recognized that he had the power to do that, but denied the motion. 5
The trial began immediately following the rulings on the preliminary motions. After the prosecution had rested, defense counsel asked the judge to rule on whether the defense could introduce evidence of the original plea bargain in the Scott's case. The defense theory was that proving the original bargain would support the defendant's testimony that his confession had been induced by Detective Washington's promise that the Martinez case would not be prosecuted. The judge ruled that evidence of the Scott's case plea and plea bargain was not admissible. He stated that the defendant could testify about the circumstances surrounding the confession including the alleged promises by Washington but that evidence of the later plea negotiations in the Scott's case was irrelevant.
The defendant then announced that, because of the adverse rulings on his various motions, he had decided not to testify. The defense rested without presenting any witnesses.
The jury found the defendant guilty of armed robbery as charged. Judge Armstrong sentenced the defendant to a 10-15 year term to be served concurrently with the 5-15 year sentence in the Scott's case. The irony is that, as a result of his "successful" appeal from his original plea conviction in the Scott's case, the defendant now has two convictions and a minimum 10-year sentence whereas he previously had only one conviction and a five-year minimum sentence. This serves to highlight his argument that People v. McMiller, supra, should have barred the renewed prosecution in this case.
People v. McMiller, 389 Mich. 425, 208 N.W.2d 451 (1973), cert. den., 414 U.S. 1080, 94 S.Ct. 599, 38 L.Ed.2d 486 (1973), had drawn a generally unfavorable response from most of the members of this Court. The underlying feeling has been that it is wrong to allow a defendant to retain all of the benefits of his plea bargain while allowing him to disown the attendant obligations.
McMiller was denied retroactive application in several cases where the second conviction whether by plea or trial was obtained before the McMiller decision was released. People v. Potts, 55 Mich.App. 622, 223 N.W.2d 96 (1974), People v. Skowronek, 57 Mich.App. 110, 226 N.W.2d 74 (1974), and People v. McGreevy, 52 Mich.App. 52, 216 N.W.2d 623 (1974). Compare Mikowski v. Grand Traverse County Sheriff, 52 Mich.App. 66, 216 N.W.2d 603 (1974), but contrast People v. Goins, 54 Mich.App. 456, 221 N.W.2d 187 (1974).
This Court has repeatedly held that McMiller does not apply in cases where a defendant withdraws his guilty plea as distinguished from cases where the plea is set aside because of a procedural error. People v. Moore, 74 Mich.App. 195, 253 N.W.2d 708 (1977), and Moore v. 9th District Judge, 69 Mich.App. 16, 244 N.W.2d 346 (1976). The Supreme Court initiated this limitation. See People v. Millard, 394 Mich. 99, 228 N.W.2d 783 (1975), and People v. Lewandowski, 394 Mich. 529, 232 N.W.2d 173 (1975).
The Supreme Court has also restricted the application of McMiller in cases where the prosecutor appeals from the entry of a guilty plea, Genesee Prosecutor v. Genesee Circuit Judge, 391 Mich. 115, 215 N.W.2d 145 (1974), or where a defendant successfully appeals from a defective plea proceeding but the prosecutor pointed out the procedural error to the trial judge before the plea was accepted. Guilty Plea Cases, 395 Mich. 96, 235 N.W.2d 132 (1975).
In People v. Triplett, 68 Mich.App. 531, 243 N.W.2d 665 (1976), this Court held that, while McMiller may prohibit retrial on a higher charge, it does not prohibit imposition of a higher sentence following retrial on the charge to which the initial plea was entered. But cf. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969).
Even in the cases where McMiller has been strictly followed or extended by analogy, this Court has usually done so reluctantly. See People v. Thornton, 70 Mich.App. 508, 246 N.W.2d 9 (1976), and People v. Hubbard, 57 Mich.App. 542, 226 N.W.2d 557 (1975), remanded for reconsideration on other grounds, 395 Mich. 801 (1975). But contrast People v. Goins, supra.
Finally, we note that other courts, including the United States Supreme Court, would apparently decline to apply a McMiller -type analysis on facts like those in the present case. See Anno: Enforceability of Plea Agreement, or Plea Entered Pursuant Thereto, with Prosecuting Attorney Involving Immunity from Prosecution for Other Crimes, 43 A.L.R.3d 281, Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), United States v. Wells, 430 F.2d 225 (CA 9, 1970), and State v. Myers, 12 Ariz.App. 409, 471 P.2d 294 (1970). It should be emphasized that all the preceding citations are to cases which, like the present one, involved two or more separate substantive offenses. They are thus distinguishable from McMiller in which the defendant pled guilty to a lesser included offense within the original charge.
Two Michigan decisions deserve special comment because of their close similarity to the present case. In People v. Clark, 43 Mich.App. 476, 204 N.W.2d 332 (1972), this Court allowed the prosecutor to reinstate separate substantive charges when an...
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