People of Michigan v. James Edward Kitchen Iii ( 2012 )

Order Michigan Supreme Court
Lansing, Michigan
December 7, 2012 Robert P. Young, Jr.,
Chief Justice
Michael F. Cavanagh
Marilyn Kelly
145737 Stephen J. Markman
Diane M. Hathaway
Mary Beth Kelly
PEOPLE OF THE STATE OF MICHIGAN, Brian K. Zahra,
Plaintiff-Appellee, Justices
v SC: 145737
COA: 310796
Ingham CC: 11-000462-FH;
11-000478-FH
JAMES EDWARD KITCHEN III,
Defendant-Appellant.
_________________________________________/
On order of the Court, the application for leave to appeal the July 11, 2012 order
of the Court of Appeals is considered and, pursuant to MCR 7.302(H)(1), in lieu of
granting leave to appeal, we VACATE the defendant’s sentence in Case No.
11-000462-FH, and REMAND this case to the Ingham Circuit Court for further
proceedings. There is no dispute that the trial judge deviated from the plea agreement,
which included a prosecutorial sentencing recommendation pursuant to People v
Killebrew, 416 Mich 189 (1977), but then failed to give the defendant the opportunity to
withdraw his plea. On remand, the trial judge shall impose sentence in accordance with
the agreement, or conduct a resentencing, or give the defendant the opportunity to
withdraw his plea.
We further ORDER the trial court to determine, in accordance with Administrative
Order 2003-03, whether the defendant is indigent and, if so, to appoint counsel to
represent him in connection with the remand proceedings.
We do not retain jurisdiction.
Finally, we remind the trial judge of her obligations under Canon 3 of the Code of
Judicial Conduct and caution her against engaging in any further ex parte communication
with a party in violation of that Canon.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
December 7, 2012 _________________________________________
s1204 Clerk