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Docket Number

Docket No. 46102.

Attorney(S)

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Michael W. LaBeau, Prosecuting Attorney, and Mitchell H. Nelson, Assistant Prosecuting Attorney, for the people. James Krogsrud, Assistant State Appellate Defender, and John Nussbaumer, Research Attorney, for defendant on appeal.

Judges

PER CURIAM.

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Smart Summary

Case Summary: People v. Armstrong, Docket No. 46102 (Mich. Ct. App. July 24, 1980)

Court: Michigan Court of Appeals. Decision date: July 24, 1980. Panel: N.J. Kaufman, P.J., and Cynar and J.E. Townsend, JJ. (Per Curiam). Counsel for people and defendant noted in opinion.

Factual and Procedural Background

The defendant was originally charged with burning a dwelling house under MCL 750.72; MSA 28.267. After plea negotiations the prosecutor agreed to reduce the charge to attempted burning (MCL 750.92; MSA 28.287), and to recommend probation, in exchange for the defendant's nolo contendere plea to the reduced offense. At the plea proceeding the court informed the defendant that the prosecutor's recommendation of probation was not binding on the court and that the sentence could be as much as five years imprisonment. The defendant acknowledged that he understood and the court accepted the plea.

At sentencing the defendant was told he had the right to seek withdrawal of his plea; he stated he understood, declined to withdraw, and wished to proceed. The court sentenced the defendant to imprisonment for 3-1/3 to 5 years. The defendant appealed as of right under GCR 1963, 806.1.

Legal Issues Presented

Whether the prosecution failed to fulfill its promise to recommend probation as part of the plea bargain.
Whether, when the court declined to follow the prosecutor's recommendation, the judge was required to (a) specifically inform the defendant that the recommendation was being rejected and (b) offer the defendant an opportunity to withdraw his plea at that time.
Whether the Court of Appeals should review and substitute its judgment for the trial court's sentencing decision (i.e., whether sentencing review by this Court is appropriate in this case).

Arguments of the Parties

Defendant's Arguments

The prosecutor did not fulfill the promise to recommend probation, a promise that induced the plea.
When the judge decided to reject the prosecutor's recommendation of probation, the judge should have explicitly informed the defendant of that rejection and then offered the opportunity to withdraw the plea.
The sentence imposed was too severe and should be reviewed by the Court of Appeals; the defendant contends appellate review of sentencing is appropriate.

Prosecution's / Trial Court's Position (as reflected in the opinion)

The prosecutor fulfilled the plea bargain by recommending probation; the presentence report indicates the prosecutor recommended probation as promised.
The trial court twice informed the defendant that it was not bound by the prosecutor's sentencing recommendation, and at sentencing the court again afforded the defendant the opportunity to move to withdraw his plea; the defendant declined.
The sentence imposed fell within the statutory minimum and maximum for the offense to which the defendant pleaded guilty, and appellate substitution of the circuit court's sentencing decision is not appropriate under the law cited.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
People v Huizar, 89 Mich. App. 224; 280 N.W.2d 494 (1979)	The opinion cites this case by way of comparison in the context of plea bargaining and court review of promises made to a defendant during plea negotiations.	The court cited Huizar ("Cf. People v Huizar") after concluding that the prosecutor had fulfilled his promises and that the defendant knew the direct consequences of his plea; Huizar was referenced to support the court's disposition on this point.
People v Hagewood, 88 Mich. App. 35; 276 N.W.2d 585 (1979)	Judge Cynar's concurrence in Hagewood articulates that a judge should inform a defendant that the prosecution's recommendation is not binding to avoid misleading the defendant.	The court agreed with the cited standard from Judge Cynar's concurrence in Hagewood, found the standard appropriate, and concluded that the trial judge in this case complied with that standard.
People v Hall, 399 Mich. 288; 249 N.W.2d 62 (1976) (reh den 400 Mich. 952 (1977))	Establishes that appellate courts will not substitute their judgment for that of the circuit court in sentencing matters.	The court relied on Hall to reject the defendant's contention that this Court should substitute its judgment for the sentencing decision of the circuit court.
People v Webb, 75 Mich. App. 494, 502; 255 N.W.2d 661 (1977)	States the principle that a sentence within legislatively set limits is not open to appellate addition or diminution.	The court cited Webb in support of its conclusion that because the sentence was within the statutory minimum and maximum, there was no error for the appellate court to correct.

Court's Reasoning and Analysis

The court addressed each of the defendant's three contentions in turn and grounded its analysis in the plea transcript, the presentence report, and cited authorities.

First contention (prosecutor's promise to recommend probation): The court examined the guilty plea record and the presentence report and concluded that the prosecutor fulfilled the bargain by recommending probation. The court emphasized that the defendant was informed of the direct consequences of his plea and acknowledged understanding that the prosecutor's recommendation was not binding on the court. Because the record showed the prosecutor recommended probation, the court found the defendant's claim that the promise was not fulfilled unsupported.

Second contention (court's duty when rejecting the prosecutor's recommendation): The court observed that the trial judge twice informed the defendant that sentencing recommendations from the prosecutor were not binding. At sentencing the defendant was told he could move to withdraw his plea and expressly declined to do so. The court referenced Judge Cynar's concurrence in People v Hagewood for the principle that fairness requires informing defendants the prosecutor's recommendation is not binding, agreed with that standard, and found the trial judge complied with it in this case. Therefore the court concluded there was no error in proceeding to sentence without a separate explicit rejection followed by a renewed offer to withdraw the plea beyond what the court had already done.

Third contention (appellate review of sentence): The court reiterated the governing law that the Court of Appeals will not substitute its judgment for that of the circuit court in sentencing (citing People v Hall) and noted the principle that a sentence within statutory limits is not subject to appellate increase or reduction (citing People v Webb). Because the sentence imposed (3-1/3 to 5 years) was within the statutory minimum and maximum for the offense to which the defendant pleaded guilty, the court found no error in the sentence. The opinion also observed that if broader appellate sentencing review were desired, that policy choice should be made by the Legislature rather than the judiciary (the court referenced the ABA Standards as indicating the suggestion, but did not adopt a change).

Holding and Implications

Holding: The judgment of the circuit court is affirmed.

Implications:

The defendant's conviction and sentence (3-1/3 to 5 years imprisonment) stand; the prosecutor was found to have fulfilled the plea agreement to recommend probation and the trial court properly informed the defendant that the recommendation was not binding.
The Court of Appeals declined to substitute its judgment for the sentencing decision of the circuit court because the sentence was within statutory bounds; no appellate reduction or modification of the sentence was made.
The opinion does not announce a new rule changing appellate review of sentences; it applies existing authority and suggests that any broader change (such as instituting appellate sentence review) would be a matter for the Legislature, not the judiciary.

This summary is prepared strictly from the text of the provided opinion and does not include information beyond that opinion.

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PEOPLE v ARMSTRONG

PER CURIAM.

Defendant pled guilty to attempted burning of a dwelling house in violation of MCL 750.92 and 750.72; MSA 28.287 and 28.267. He was sentenced to imprisonment for 3-1/3 to 5 years and claims this appeal as a matter of right under GCR 1963, 806.1.

Defendant was originally charged with burning a dwelling house, MCL 750.72; MSA 28.267. After plea negotiations, the prosecutor agreed to reduce the charge to attempted burning and to recommend probation in exchange for defendant's nolo contendere plea to the reduced charge. At the proceeding upon the plea, the plea-taking court informed the defendant that the prosecutor's recommendation of probation was not binding and that the sentence could be as much as five years in prison. At the same hearing, the court further stated that it had not agreed with anyone as to what the sentence would be and asked defendant if he was aware of that. Defendant indicated that he understood, whereupon the court accepted the tendered plea.

At sentencing, defendant was advised that he had the right to ask the judge to allow him to withdraw his plea. Defendant indicated that he understood his rights, that he did not wish to withdraw his plea, but wished to go forward with sentencing. The court sentenced defendant to 3-1/3 to 5 years in prison.

Defendant challenges his conviction on three fronts. First, he argues that the prosecution did not fulfill its promise to recommend probation. Defendant's plea was certainly influenced by the prosecution's promises to dismiss the principal charge, allow the guilty plea to a lesser offense, and recommend probation thereon. We have reviewed the guilty plea transcript to find that the prosecutor fulfilled all of his promises to defendant. The defendant knew the direct consequences of his guilty plea, including the actual value of any commitments made to him. In fact, the trial court acknowledged its awareness of the prosecutor's recommendation when it advised the defendant that such recommendation would not necessarily be binding upon the court. In light of such, we find defendant's contention that the prosecutor did not fulfill his promise to recommend probation unsupported. Cf. People v Huizar, 89 Mich. App. 224; 280 N.W.2d 494 (1979).

According to the presentence report, the prosecutor lived up to his bargain in recommending probation.

Secondly, defendant contends that when the judge decided to reject the prosecutor's recommendation of probation, he should have specifically informed the defendant that he was rejecting the recommendation and that he intended to sentence the defendant to prison, and should have then offered the defendant the opportunity to withdraw his plea. It should be noted that the judge, on two separate occasions, advised the defendant that he was not bound by the prosecutor's sentencing recommendations. Defendant indicated he understood, then entered his plea. After the second appraisal, the court gave defendant an opportunity to request to withdraw his plea. He declined, indicating his desire to proceed to sentencing.

According to Judge CYNAR'S concurrence in People v Hagewood, 88 Mich. App. 35; 276 N.W.2d 585 (1979), because a defendant may have been misled into believing the prosecution's recommendation was binding, the judge should inform defendant that this is not the case. Id., 39. We agree that fairness demands this standard and find that this standard was adhered to in the case before us. Here, the judge clearly informed defendant that the recommendation was not binding, and the defendant still made no motion to withdraw. We, therefore, hold that defendant's second contention of error is without merit.

As to defendant's third allegation, that review of sentencing should be the duty of this Court, the law is that the Court of Appeals will not substitute its judgment for that of the circuit court. People v Hall, 399 Mich. 288; 249 N.W.2d 62 (1976), reh den 400 Mich. 952 (1977). While we might not have pronounced so harsh a sentence on defendant, the sentence given defendant was within the minimum and maximum bounds for the crime to which he pled guilty. As such there was no error in the sentence of the circuit court. If it be the duty of the Court of Appeals to review sentencing of the circuit court, as has often been suggested, see ABA Standards, § 1.1(a), p 7, (approved draft, 1968), we feel this should be the determination of the Legislature and not of the judiciary.

At present appellate courts are not sentence review boards. "A sentence within the legislatively set limits is not open to appellate addition or diminution." People v Webb, 75 Mich. App. 494, 502; 255 N.W.2d 661 (1977).

Because we find no error in either the plea bargaining or the sentencing procedures, the judgment of the circuit court is affirmed.

PEOPLE v. ARMSTRONG