People v. Earegood , 12 Mich. App. 256 ( 1968 )

12 Mich. App. 256 (1968) 162 N.W.2d 802

PEOPLE
v.
EAREGOOD.

Docket No. 2,755.

Michigan Court of Appeals.

Decided June 28, 1968. Rehearing denied August 23, 1968. Leave to appeal granted November 20, 1968.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert F. Leonard, Prosecuting Attorney, Donald A. Kuebler and Paul G. Miller, Assistant Prosecuting Attorneys, for the people.

Pelavin & Pelavin, for defendant on appeal.

Leave to appeal granted November 20, 1968. See 381 Mich 787.

LEVIN, J.

The fundamental question presented by this appeal is whether a trial judge may properly reduce or enlarge a sentence based on the amount of the court's time consumed before a defendant's conviction.

The defendant Earegood pleaded not guilty to the charge originally lodged against him at the arraignment on the information, August 2, 1965. At the criminal calendar call October 12, 1965, the defendant demanded a jury trial. Shortly before he was given an opportunity to do so the trial judge made the following statement:

"I think it is about time to make my usual announcement, gentlemen. The purpose of this call is to get pleas. If you are going to plead or waive a trial by jury now is the time to do it, so we can schedule. The court has a long memory, and all this goes on record, and when it comes time for sentence, if you plead or waive a jury at the last minute, it is a factor I take into consideration in sentencing. I am sure you all know the risk."

Thereafter, on November 16, 1965, the information was amended to add the count of assault with intent to do great bodily harm less than the crime of murder,^[1] and the defendant pleaded guilty to that charge. The requirements of GCR 1963, 785.3 (2) were complied with before acceptance of his guilty plea.^[2] The defendant was sentenced on December 17, 1965.

As we read his remarks of October 12, 1965, the trial judge told all in the courtroom, including the defendant, that those who dilly-dallied in offering a guilty plea might expect to be dealt with more severely should they later decide to offer one. We take the judge at his word and assume he sentenced as he promised he would, and, thus, that Earegood's sentence was increased because he dawdled before pleading. Because a sentence may not be enlarged or reduced depending on the alacrity with which the defendant pleads guilty, the sentence must be set aside.

But Earegood also contends the trial judge's remarks influenced him to plead guilty. This contention presents several subsidiary questions:

— Did the trial judge's remarks in fact influence the defendant to plead guilty?

— Is the plea insulated from attack because it followed negotiations and an agreement that the defendant would offer a plea of guilty to an added lesser offense?

— May a trial judge validly increase or reduce a sentence based on whether the defendant was convicted following a trial or a plea of guilty?

I.

The courts hold with substantial unanimity that a trial judge may not properly encourage a defendant to plead guilty^[3] or impose a penalty in the form of an increased sentence^[4] upon one convicted after a trial.

Most judges would probably agree it is improper for a trial judge to influence a defendant's decision whether to plead guilty and, thus, on this point at least, practice in general conforms to the judicial statements.

"The unequal positions of the judge and the accused, one with the power to commit to prison and the other deeply concerned to avoid prison, at once raise a question of fundamental fairness. When a judge becomes a participant in plea bargaining he brings to bear the full force and majesty of his office. His awesome power to impose a substantially longer or even maximum sentence in excess of that proposed is present whether referred to or not. A defendant needs no reminder that if he rejects the proposal, stands upon his right to trial and is convicted, he faces a significantly longer sentence. One facing a prison term, whether of longer or shorter duration, is easily influenced to accept what appears the more preferable choice." United States, ex rel. Elksnis, v. Gilligan (SD NY, 1966), 256 F Supp 244, 254.

However, despite appellate court statements to the contrary (see footnote 4), many trial judges think it entirely proper to count against the defendant the fact that he has put the State to the expense of a trial, and sentence one convicted following a trial more heavily than if he had pled guilty.^[5]

This sentencing practice finds support in the American Bar Association's recently adopted Standards Relating to Pleas of Guilty (standard 1.8; quoted in full in footnote 8).^[6] The standards state it is proper for a trial judge to grant sentence concessions to those who plead guilty as long as the judge himself does not participate in the bargaining (standards 3.3[a] and 1.8[a], discussed in part II, infra).

The commentary accompanying the standards takes no notice of either the relatively few supportive or the greater number of contrary judicial statements (see footnote 4), but rather relies on its own exegesis.

In those jurisdictions where plea bargaining focuses on the granting of sentence concessions, the present high proportion of guilty pleas is no doubt in part explained by the practice of granting such concessions or at least leading defendants to believe they will be granted. In proposing as a national standard the practices followed in those jurisdictions, practices contrary to most appellate court statements on the matter, ABA guilty pleas standard 1.8 (discussed in part III, infra) offers a truly minimum standard.^[7] That standard does not — and we say this with sincere respect for the judgment of those who participated in the promulgation of the standards — represent the conscience of the law. It is inconsistent with fundamental principles concerning the judge's role, with the maintenance of any standards at all, and lends respectability to practices which no court should allow.

The high regard we all have for the ABA may well lead to uncritical adoption of standards issued under its authority with the result that the minimum standard will become the common standard. This we feel would be most unfortunate, and, accordingly, we address ourselves to what we believe to be a serious threat to well-established principles concerning the use of judicial power.

II.

ABA Guilty Plea standard 3.3(a) states:

"The trial judge should not participate in plea discussions"

while standard 1.8(a) states:

"It is proper for the court to grant charge and sentence concessions to defendants who enter a plea of guilty".

There is, of course, a difference in degree between overt and covert participation, the former clearly being more inconsistent with the judge's role than the latter. But the fact that a particular judge grants sentence concessions to guilty pleaders is not the kind of fact likely to be kept secret. On the contrary, lawyers who properly represent their clients make it their business to learn the sentencing policies of the various judges before whom they appear. Thus, in a very real sense, the judge who adopts a practice of going lighter on guilty pleaders cannot avoid participation in the plea bargaining process. His practices may become so well known that it is unnecessary for him to inject himself in the process overtly, but this hardly means he does not participate. The judge's sentencing practices are a fact, and they are no less a fact because there is no need to rearticulate that fact upon each arraignment.

Standard 3.3 (b) states that where a "tentative plea agreement has been reached which contemplates entry of a plea of guilty * * * in the expectation * * * that sentence concessions will be granted, upon request of the parties the trial judge may permit the disclosure to him of the tentative agreement", and he may indicate "whether he will concur in the proposed disposition if the information in the presentence report is consistent with the representations made to him." It is further provided (standard 3.3[c]) that, notwithstanding the prior plea agreement, the trial judge "should reach an independent decision." And if the trial judge has concurred in the plea agreement (standard 3.3[b]) "but later decides that the final disposition should not include the * * * sentence concessions contemplated by the plea agreement, he shall so advise the defendant and then call upon the defendant to either affirm or withdraw his plea of guilty".

We are convinced of the impossibility of the judge's avoiding active participation in plea bargaining under the circumstances described by the standard. The length of sentence is the decision of the judge. Prosecutor-defense counsel bargaining over sentence concessions would be an exercise in futility unless the bargainers thought the result of their negotiations would influence the judge. Thus, without at least the judge's tacit approval (i.e., his "participation"), such bargaining would not take place. If the prosecutor is willing to recommend, for example, 5 years, and the defendant is seeking 2-1/2 years, and they settle on 3-1/2 years, they must of necessity in such bargaining consider the judge's attitude.

If the judge permits disclosure to him of the prosecutor-defendant agreement upon sentence (as the quoted ABA standard contemplates), how can he avoid stating the reason for any disagreement with the recommended disposition and, perhaps, indicating what sentence he would agree to consider, at least in those jurisdictions where the administration of criminal justice has come to depend on a steady flow of guilty pleas? Indeed, what purpose would be served by disclosing the arrangement to the judge if not determination of whether the bargainers are on the beam? If a meeting of the minds or finalization of a previously negotiated agreement follows the judge's statement of his reaction to the parties' original proposal, surely the judge has participated in achieving that result and in the bargaining itself.

If upon full information the judge decides the proposed sentence is too lenient and (as the standards suggest) offers the defendant an opportunity to withdraw his guilty plea, would not the average defendant carefully consider whether rejection of the judge's evaluation might lead to a higher sentence should he be convicted following a trial, regardless of whether the particular judge would visit such punishment upon the defendant? The judge's decision to reject the original sentence agreement is, of necessity, based on the judge's evaluation of both the offender and the charged offense. After the kind of negotiating and bargaining which preceded confrontation with the judge, is it not reasonable to expect many, if not most, offenders would conclude both fair trial and fair sentencing have been forfeited?

"Time and again this court has said that justice must not only be done but must manifestly be seen to be done." Rex v. Justices of Bodmin (1947), KB 321, 325.

III.

ABA guilty plea standard 1.8 needs to be examined in detail.^[8]

Considerations (i) and (vi) of standard 1.8 are present in every case where the defendant pleads guilty. Every guilty pleader makes his own punishment more certain and, by avoiding trial, expedites disposition of other cases. The net effect of considerations (i) and (vi) is to permit the trial judge to grant a sentence concession in every case where the defendant pleads guilty and, thus, considerations (i) and (vi) effectively cancel everything else in subparagraph (a) of standard 1.8. It would have been clearer simply to have said that sentence concessions may be granted to all guilty pleaders.

Consideration (ii), allowing sentence concessions to guilty pleaders on the ground "defendant has acknowledged his guilt and shown a willingness to assume responsibility for his conduct",^[9] also applies in every case, if it applies in any case. If the defendant acknowledges his guilt in the expectation of a sentence concession, he is as likely to be trying to put himself in line for a sentence concession as to be truly repentant. Those who think "confession is good for the soul", that acknowledgment of guilt and repentance is an important step on the road to rehabilitation, should be in the forefront of opposition to plea bargaining in any form, because only elimination of all concessions will remove the temptations which contaminate the moral surge of those truly repentant. Only then could we distinguish the truly repentant from those merely bargaining in the marketplace. Repentance and purchase are not coextensive concepts. The plea bargaining apologists themselves tell us that without the element of purchase there would be far fewer guilty pleas. A palpable inconsistency exists between the pragmatic basis of plea bargaining, the need to obtain guilty pleas, and the beatification of the guilty pleader.

And while we are focusing on remorse, it appears that the bargaining system may create as much recriminatory remorse as penitent remorse. If a defendant pleads guilty in the expectation of a sentence lighter than the one he in fact receives, he may well be left with feelings of both regret and having been cheated, feelings which, whether completely justified or not, are bound to occur in particular cases as long as defendants are encouraged to believe it is to their advantage to plead guilty. Plea bargaining may then produce at least as much negative as positive remorse and may retard as well as promote rehabilitation.

The ABA standard also asserts (consideration [iii]) that concessions may be granted if they "will make possible alternative correctional measures which are better adapted to achieving rehabilitative, protective, deterrent or other purposes of correctional treatment, or will prevent undue harm to the defendant from the form of conviction." It is unclear whether that consideration is intended to have application to sentence concessions or whether it relates only to charge reduction concessions. In any event, such "better adapted" corrective measures could be achieved without exacting the plea in exchange for the concession — the charge or sentence could be reduced without regard to whether the defendant pleads guilty. It is not proper for a judge to deny correctional measures "better adapted to achieving rehabilitation, et cetera" merely because one has exercised his right to stand trial. Are those misguided souls who exercise constitutional rights less in need of such alternative correctional measures than those who waive them? On the contrary, it would seem those who perversely insist upon exercising constitutional rights have at least as great a need of "better adapted" correctional measures as the truly repentant who waive them.

Standard 1.8(b) concludes:^[10]

"The court should not impose upon a defendant any sentence in excess of that which would be justified by any of the rehabilitative, protective, deterrent or other purposes of the criminal law because the defendant has chosen to require the prosecution to prove his guilt at trial rather than to enter a plea of guilty."

It seems then that the court may impose a lesser sentence than would be justified by any of those considerations upon a defendant who pleads guilty. Defenders of plea bargaining cannot have it both ways. Guilty pleaders cannot receive lighter sentences unless those convicted upon trial receive heavier sentences — disparity there must be. Any such disparity is nothing less than a judicially imposed penalty^[11] for the exercise of constitutional rights, however it is dressed and garnished, or however exalted and respected may be the imprimatur of the authority that defends it.

IV.

The sentencing power of the trial judge is enormous. If within the statutory range, the sentence generally is regarded as unreviewable on appeal, even if the defendant asserts and proves that the trial judge abused the discretion confided to him.^[12] A trial judge should not be permitted to use that awesome power to accomplish a waiver of fundamental guaranteed rights. One exercising a guaranteed right should not fear he may have to pay a price for doing so.^[13] He should not have to fear that if he demands a trial and is convicted his sentence will be higher than if he had waived his constitutional rights. A constitutional right may not be the subject of barter. Neither, in our view, should the exercise of judicial discretion.

"To no one will we sell, to no one deny or delay right or justice." Magna Carta, Art 40.^[14]

Whatever one may think of plea bargaining for charge reductions between prosecutor and defendant,^[15] we have not, in tailoring justice to the realities of the docket and prosecutorial and judicial manpower,^[16] authorized the trial judge himself to exert any pressure on the defendant to plead guilty. We hope we never shall, whatever may be the backlog of untried cases.^[17]

The remedy for the backlog is not more pressure on prosecutors and defendants to strike deals, but increased public awareness of the need to provide adequate funds so there are enough assistant prosecutors and judges to try those whom the prosecutor believes guilty for the offenses he charges have been committed. The trenchant comments of a unanimous Court in R.R. Improvement Association v. Thomas (1965), 374 Mich 175, 187, are in point:

"Our metropolitan circuits being burdened as they are, it is better to let the work of the circuit get farther and farther behind than to crank a judicial meatgrinder the unjust output of which is simply a great number of ``cases disposed of.' When such a choice — between contemplative and prompt justice on the one hand and assembly line justice on the other — must be made, it [the Court] is due for bitter criticism either way. But cases tried right, and then thoughtfully decided, amount of a certainty to better judicial service than that which is manifested in this and too many like appendices coming here."

As things stand now, the experienced criminal assumes he can make a deal for a lesser charge than the one alleged in the prosecutor's information. More likely than not, he can. Such a state of affairs will hardly inculcate respect for law and order. Participation by trial judges in the negotiating process would, no doubt, speed it up, but the public's and profession's esteem for the judiciary is bound to be diminished.

We should not take the next step backward and permit judges to enter the bargaining process. That is what appears on the record before us, and a new trial is ordered.

V.

The defendant could reasonably understand the trial judge was saying he was a busy man with a long memory and those who run the gauntlet unsuccessfully will be dealt with more severely than those who plead guilty. Might not a defendant or his counsel reasonably conclude that if a penalty will be imposed on those who vex the court by delay in pleading guilty, those who stand trial and are convicted may expect at least similar and perhaps more severe treatment? This seems an entirely reasonable construction. Had we been in the courtroom, this is the message that would have come through to us. Surely the defendant should not be faulted for failing to interpret the judge's remarks to mean that while those who delayed in pleading guilty, but ultimately did so, would be dealt with more harshly than those who pleaded guilty at the time of the criminal calendar call, those convicted by a jury after a possibly lengthy trial would be sentenced as if they had pled guilty at the criminal calendar call.

There is, of course, no way of knowing what influenced the defendant here to plead guilty.^[18] Most defendants who plead guilty are guilty and have been offered an opportunity to plead to an offense with a lower maximum sentence than the offense originally charged and in fact committed. Perhaps so in this case.^[19]

Where a defendant claims a promise or threat was made and this is denied, there must be a testimonial hearing to determine the truth of the claim. In this case the promise-threat appears on the record. A hearing on whether the defendant was "influenced" by the promise-threat would be unproductive. The defendant cannot constitutionally be required to submit to questioning and his attorney's lips are sealed. Any admissions made during the bargaining process with the prosecutor or during the examination by the judge at the time he accepted the plea could be explained away as having been offered to justify the prosecutor in recommending acceptance of the negotiated plea and the judge in accepting it.^[20] A hearing to determine if the judge's remarks influenced the defendant to plead guilty would present a much more difficult factual question than that presented by a trial of defendant's guilt on the original charge.

We hold that, once established, the promise-threat will ordinarily be presumed to have influenced the defendant.^[21] Any other approach would be impractical. We should not spend a great amount of time trying an extraneous issue when in nearly the same time we could try the real issue, the defendant's guilt.

VI.

The view that sentence concessions should be awarded guilty pleaders is entertained, if not expressed with the candor that appears on this record, by many trial judges (see footnote 5), all of which is known to practitioners and prosecutors and soon becomes known to defendants and the public at large. That view is so widely held that many assume a judge will go harder on a defendant who is convicted following trial.^[22] Thus, there is an implicit promise threat in every case, which will not be removed unless, and until, the judiciary convincingly make it known that trial judges will not deal more harshly with a defendant who is convicted following a trial than one who pleads guilty, and all become convinced that is true.

It could be argued that since the promise-threat is implicit in every case, we should grant relief in no case, even this one where the promise-threat appears on the record. We are not willing so to admit judicial impotence to correct unsound practice. That we do not do more is a poor reason for doing less.

Our disposition of this case makes it unnecessary for us to consider defendant's claims that he was not credited with jail time on his sentence and that the trial court failed to certify the stenographic record of proceedings as required by GCR 1963, 785.3(3).

The conviction and plea are hereby set aside and the cause remanded for trial.

T.G. KAVANAGH, J., concurred with LEVIN, J.

QUINN, P.J. (dissenting).

What is said here in no way condones the remarks of the trial judge at the call of the criminal calendar October 12, 1965, as quoted at the beginning of the majority opinion. The remarks were improper and injudicious, but on this record, they do not support the reasoning or the result of the majority opinion.

As noted in that opinion, the remarks were directed to all in the court room on October 12, 1965. Five weeks later and after an amended information charging a lesser offense was filed, defendant pleaded guilty to such lesser offense and recited on the record facts establishing the offense and his participation in it. At the same time, defendant stated he was pleading guilty freely and voluntarily and that no threats or promises had been made to induce the plea.

I agree with the majority opinion that to lengthen a sentence because of a late plea of guilty is improper. If the record established this to be the fact here, I would vacate sentence and remand for resentencing. The record does not establish the fact, and the majority opinion only does so by assumption. I cannot make that assumption in view of the fact that all judicial proceedings in courts of general jurisdiction are presumed to be correct and regular, in the absence of proof to the contrary. 1 Wharton Criminal Evidence (12th ed), § 126, p 233. In addition, as was said in In re Valle (1961), 364 Mich 471, 478:

"The oath of public officials as to the performance of their sworn duties is, it has been our experience, so consistently in accord with the fact of such performance that only in the most unusual circumstances would we be persuaded otherwise."

The record does not support the claim of defendant that the remarks of the judge influenced defendant's plea. In fact, defendant's answers to judicial interrogation at the time of plea negate such a claim. In view of defendant's positive assertion at time of plea that he pleaded freely and voluntarily without being influenced by threat or promise, I am unable to accept his present belated and self-serving argument that he was influenced by the implied threat in the remarks of the trial judge hereinbefore referred to as proof overcoming what is disclosed by the record at time of plea.

As stated in People v. Winegar (1968), 380 Mich 719, a convicted defendant no longer enjoys the presumption of innocence. On appeal from conviction, defendant has the burden of establishing reversible error, absent a showing of violation or denial of constitutional rights, and reversible error is to be measured by the standards established by statute, CL 1948, § 769.26 (Stat Ann 1954 Rev § 28.1096) and rule, GCR 1963, 529.1. (Winegar, supra). This defendant has failed to do.

I vote to affirm and such vote indicates my belief that the other points asserted by defendant on this appeal are without merit.

NOTES

[1] CL 1948, § 750.84 (Stat Ann 1962 Rev § 28.279).

[2] It appears that on June 20, 1965, John Henry Parsons transported in his car the defendant, Charles Lloyd Guenther, Carl Eugene Olmstead and an unidentified female. During the trip the car was stopped; defendant and the female got out and moved some distance from the car. Thereafter, at knifepoint, and with the assistance of Olmstead, Guenther took $2.50 from Parsons. A short time later, it appears that defendant assisted Olmstead and Guenther in throwing Parsons, tied hand and foot, into the river. Parsons survived the ordeal. The defendant, Olmstead, and Guenther turned themselves in to the police.

The 3 were originally charged in a single warrant with armed robbery (CLS 1961, § 750.529 [Stat Ann 1968 Cum Supp § 28.797]) and assault with intent to murder (CL 1948, § 750.83 [Stat Ann 1962 Rev § 28.278]).

Defendant was represented at the preliminary examination by counsel and was arraigned on the information on August 2, 1965, stood mute, and a plea of not guilty was entered by the court. At the criminal calendar call, October 12, 1965, defendant requested a jury trial; it was immediately preceding such request that the objected-to remarks by the trial judge were made. Subsequently, on November 16, 1965, amended informations were filed, one charging Olmstead and Guenther with armed assault with intent to rob (CL 1948, § 750.89 [Stat Ann 1962 Rev § 28.284]) and the other charging the defendant with assault with intent to do great bodily harm less than the crime of murder (see footnote 1).

At the November 16, 1965, hearing an assistant prosecuting attorney stated that, insofar as Guenther and Olmstead were concerned, he thought the people could substantiate the amended charge of assault with intent to rob while armed, but that, as far as the defendant Earegood was concerned, he did not believe the people could prove either robbery armed or assault with intent to rob while armed. He added: "It isn't quite clear in the history or in the lower court exam as to when Earegood was subsequently picked up again and when he became a party with the 3, but I do feel he had something to do with this man being thrown in the river, although there isn't any testimony in the lower court exam by the complainant that at any time did William Joseph Earegood in any manner tie him up, and there isn't any explanation as to when they did pick Earegood up again."

Olmstead and Guenther then pleaded guilty to the amended charges against them. Earegood was then questioned by the court. He acknowledged he had discussed the proposed amended information with his attorney and knew the nature of the crime charged and that he had a right to a jury trial, and that the maximum penalty that could be imposed upon conviction was 10 years' imprisonment. He then stated he wished to plead guilty. In response to inquiries from the court he stated that he pleaded guilty freely and voluntarily, he had not been threatened in any way to secure the plea and that no promises of favor or leniency had been made. The following colloquy then took place:

"The Court: What part did you play in this matter?

"Mr. Earegood: I was there to help put him in the water.

"The Court: And did you help put him in?

"Mr. Earegood: Yes.

"The Court: What did you do?

"Mr. Earegood: Just helped throw him in the water.

"The Court: You were right there pushing, helping, is that right?

"Mr. Earegood: Yes.

"Mr. Delaney [Earegood's attorney]: I believe he lifted him out of the trunk, your Honor.

"The Court: Is that the part you played, you helped lift him out of the trunk?

"Mr. Earegood (indicating affirmatively)."

[3] See Rogers v. State (1962), 243 Miss 219, 229 (136 So 2d 331, 335) (judge actively engaged in persuading defendant to plead guilty, made promises and held out hope of lenient treatment at penitentiary. The Mississippi supreme court said: "His lawful duty was just the opposite — to see to it that a plea of guilty was voluntary.") See, also, Mesmer v. Raines (Okla Crim App, 1960), 351 P2d 1018 ("the court may not properly bargain with a prisoner to induce him to enter a plea of guilty"); State v. Benfield (1965), 264 NC 75, 77 (140 SE2d 706, 708) ("The fact that the court interrupted the hearing before all the evidence was in to express the opinion that the jury would convict defendant, followed by the statement that, if convicted, defendant could expect ``a long sentence,' necessarily leads, we think, to the conclusion that defendant changed his plea from not guilty to guilty because of what the judge said."); McClure v. Boles (ND W Va, 1964), 233 F Supp 928 (approving plea bargaining between prosecutor and defendant adding: "It goes without saying, of course, that the court cannot be party to such inquiries or arrangements").

See, also, People v. Farina (1956), 2 App Div 2d 776 (154 NYS2d 501) (defendant entitled to withdraw his plea of guilty even though judge's promise as to sentence length fulfilled); affirmed People v. Farina (1957), 2 NY2d 454 (141 NE2d 589). Similarly, see United States, ex rel. Elksnis, v. Gilligan (SD NY, 1966), 256 F Supp 244; People v. Guiden (1958), 5 App Div 2d 975 (172 NYS2d 640).

Accord: Letters v. Commonwealth (1963), 346 Mass 403 (193 NE 2d 578) (defendants told maximum sentences permissible would be given on conviction and lesser sentences would follow a plea of guilty). Similarly, see oft-cited Euziere v. United States (CA 10, 1957), 249 F2d 293, 295. And in another similar case, United States v. Tateo (SD NY, 1963), 214 F Supp 560, the court said defendant's right to require the government to establish his guilt (p 567) "should not be exercised under the shadow of a penalty". On re-trial, defendant's claim of double jeopardy was rejected. United States v. Tateo 1964), 377 US 463 (84 S Ct 1587, 12 L Ed 2d 448), Justices Goldberg, Black and Douglas dissenting, stated that the defendant had been subjected to "judicial coercion". 377 US 463, 473.

See, also, Commonwealth v. Senauskas (1937), 326 Pa 69, 71, 72 (191 A 167, 168) ("It may be stated generally that for a judge to make a bargain, engagement, or promise in advance of the hearing of a case, irrespective of what the evidence might thereafter show the facts to be and as to what judgment he should render therein, would be judicial misconduct. Such agreements have uniformly been held to have no binding effect, and they are incompatible with the powers or duties of a judicial officer."), followed in Commonwealth, ex rel Kerekes, v. Moroney (1966), 423 Pa 337, 349 (223 A2d 699, 705), where the court approved prosecutor-defendant plea bargaining, but opined that judge-defendant sentence bargaining should not be permitted; Waddy v. Heer (CA 6, 1967), 383 F2d 789, 793, dictum that "the promise of a lesser penalty by a judge as an inducement for a plea of guilty [was] properly condemned" in certain cases previously cited; compare Worcester v. Commissioner of Internal Revenue (CA 1, 1966), 370 F2d 713, 718 ("It is no answer to say that the defendant need not accept the court's ``offer'. The vice is that vis-a-vis the court he is in an unequal position.")

Contrast: United States, ex rel. McGrath, v. LaVallee (CA 2, 1963), 319 F2d 308, where it was claimed the trial judge promised defendant consideration should he plead guilty. The court of appeals ordered an evidentiary hearing. On a subsequent appeal the trial judge's determination that there was no coercion was sustained as not clearly erroneous. United States, ex rel. McGrath, v. LaVallee (CA 2, 1965), 348 F2d 373. Mr. Justice Marshall, then a Federal circuit judge, dissented from the first opinion stating that the transcript undisputably showed improper influence by the trial judge. The trial judge had stated to the defendant (p 320): "If you are convicted as a second offender of robbery in the first degree, you will be entitled to no consideration of any kind from me." Mr. Justice Marshall declared (pp 319, 320): "Our concept of due process must draw a distinct line between, on the one hand, advice from and ``bargaining' between defense and prosecuting attorneys and, on the other hand, discussions by judges who are ultimately to determine the length of sentence to be imposed. This is especially true when, as here, conference in chambers is ordered by the judge himself without any apparent request by either defendant or prosecutor." See, also, United States v. Cariola (CA 3, 1963), 323 F2d 180, where the court, 24 years after sentence, refused to set aside a plea of guilty offered following a sentence commitment; the commitment and the sentence in fact meted out was for the defendant to spend the balance of the day of sentence in the courtroom; the majority stated it did not "condone" or deem "salutary" the practice followed. Chief Judge Biggs dissented because the plea was induced by a sentence promise from the judge himself. It is apparent from the report in People v. Darrah (1965), 33 Ill 2d 175 (210 NE2d 478), that an agreement regarding sentence had been reached before the guilty plea was offered and that the judge had at least discussed the matter with the defendant's attorney before he pleaded guilty. Nevertheless, the court refused to set aside the plea because there was no proof the judge initiated the discussions.

[4] Letters v. Commonwealth, supra, 405 (193 NE2d 578, 580): "a defendant, whatever his character, may not be punished for exercising his right to trial and, therefore, the fact that he had done so should be given no weight in determining his sentence."

In Thomas v. United States (CA 5, 1966), 368 F2d 941, 944, 946, at sentencing the trial judge stated that if defendant admitted his guilt the judge would take that into account and if he persisted in asserting his innocence that too would be taken into account. He asked the defendant, "Which will it be?"; defendant responded, "I am innocent." Defendant was sentenced to the maximum term permitted by law. In vacating the sentence the court of appeals stated: "When Thomas received harsher punishment than the court would have decreed had he waived his Fifth Amendment rights, he paid a judicially imposed penalty for exercising his constitutionally guaranteed rights. Upon that ground alone, we think that his sentence is ``subject to collateral attack'".

In People v. Moriarty (1962), 25 Ill 2d 565, 566, 567 (185 NE2d 688, 689), at sentencing the trial judge indicated that had the defendant pled guilty instead of being convicted by a jury a lesser sentence would have been imposed. In vacating the sentence the supreme court of Illinois declared: "A defendant in a criminal case should not be punished by a heavy sentence merely because he exercises his constitutional right to be tried before an impartial judge or jury."

In Gillespie v. State (1960), Okla Crim, 355 P2d 451, the cause was remanded for reconsideration of the defendant's application for a suspended sentence which had been rejected solely because the defendant had tried his case before a jury. The court of criminal appeals of Oklahoma stated (p 456): "A policy designed to deny defendant a suspended sentence solely because he demanded a jury trial is contrary to law and an unjustifiable denial of defendant's rights to have his application for a suspended sentence considered upon its merits."

See, also, United States v. Wiley (CA 7, 1959), 267 F2d 453; United States v. Wiley (CA 7, 1960), 278 F2d 500; United States v. Wiley (ND Ill, 1960), 184 F Supp 679. In Wiley, a first offender went to trial in a relatively minor felony case, was convicted and received a sentence of 3 years. His co-defendant, who had 4 prior felony convictions and pled guilty, received a sentence of 2 years. At sentencing the trial judge stated he did not consider probation for Wiley because he had been convicted following a trial. On appeal, Wiley's conviction was affirmed, but the appellate court remanded the case to the district court for consideration of probation. The district court refused to change the sentence and on the second appeal the appellate court again remanded for resentencing, following which the district judge reimposed the 3-year sentence and suspended its execution.

The opinions of the appellate court in Wiley referred to the fact that Wiley's defense was not frivolous. In People v. Morales (1967), 252 Cal App 2d 537 (60 Cal Rptr 671), it appeared a heavier sentence was imposed because the defendant, "although lacking a meritorious defense", pled not guilty and demanded a jury trial. The California court of appeals ruled (p 677) "that a trial court cannot impose a more severe punishment on the basis of its conclusion that a defendant who has pled not guilty presented a frivolous defense or one which the court concludes was presented in bad faith. Any such implications in the Wiley cases are rejected by this court."

Contrast State v. Tuttle (1963), 21 Wis 2d 147, 153 (124 NW2d 9, 12) (The Wisconsin supreme court said that although the defendant was not entitled to leniency for "confession and repentance", the merits of the case warranted sentence in a lower range than that meted out; the court held it was improper to fine a trial-convicted traffic offender at upper level of statutory range because of his lawyer's discourtesy to court); People v. Guiden, supra, 976 (172 NYS 2d 642): "it is an abuse of judicial discretion to impose additional punishment upon a defendant either because his counsel refused to advise him to plead guilty, or as a warning or ``barometer' to members of the bar," but "acceptance of pleas of guilty to lesser offenses with consequent lighter sentences is perfectly appropriate." See, also, State v. Owens (1958), 21 Conn Sup 418 (158 A2d 867).

Compare People v. Mulier (1968), 12 Mich App 28 (imposition of a harsher sentence following a re-trial where no grounds therefor are shown in the record infringes Michigan's constitutional right of appeal; in an opinion by Chief Judge LESINSKI comprehensively reviewing the case law in other jurisdictions both favoring and opposing this view.)

[5] 66% of the Federal district judges who responded to a Yale Law Journal questionnaire considered defendant's plea a relevant factor at sentencing, with the diminutions varying from 10% to 95% of the punishment which would ordinarily be given if the defendant were convicted following a trial. Note, The Influence of the Defendant's Plea on Judicial Determination of Sentence, 66 Yale L J 204. 206 (1956). See, also, Newman, Conviction: The Determination of Guilt or Innocence Without Trial, p 89 (1966).

See, also, Pilot Institute on Sentencing under the auspices of the Judicial Conference of the United States (1959), 26 FRD 231, expressing competing views of several judges who participated in the institute.

In Dewey v. United States (CA 8, 1959), 268 F2d 124, 128, the Court of Appeals took "judicial notice of the fact that trial courts quite generally impose a lighter sentence on pleas of guilty than in cases where the accused pleaded not guilty but has been found guilty by a jury."

In Detroit, where plea bargaining discussions center around potential charge reduction, in contrast with other jurisdictions where it is customary to seek prosecutorial recommendations to the sentencing judge in exchange for a guilty plea, practice probably conforms with the appellate court statements, although there is a lingering belief on the part of counsel, defense and prosecutors, that stricter sentences will be meted out to those convicted following a trial:

"In bargaining for a plea of guilty to a lesser offense, the prosecutor may intimate to the defense that the fact the county is saved the cost of a contested trial will be taken into account in sentencing. Judges uniformly stated that they did not let insistence upon a trial influence their sentencing decisions, but defense counsel and prosecutors were of the impression that the judges, perhaps subconsciously, did indeed hand down stricter sentences when a trial was insisted upon and the evidence overwhelmingly established guilt." Law Enforcement in the Metropolis, a working paper on the criminal law system in Detroit, American Bar Foundation, p 156 (1967). The report concerns the recorder's court of the city of Detroit.

[6] Originally proposed in a tentative draft February, 1967, as part of the Association's Project on Minimum Standards for Criminal Justice. The standards were partly revised in December, 1967, and were adopted by the governors of the American Bar Association in February, 1968.

[7] It is recognized that standard 1.8 (see footnote 8 for full text) covers both charge and sentence concessions. The granting of charge concessions in exchange for guilty pleas has been largely approved by the courts. (See Judge LEVIN's separate opinion in People v. Byrd (1968), 12 Mich App 186, 194). There is, however, an essential difference between charge and sentence concessions. The former are negotiated with the prosecutor, and the judge's role is essentially passive. The sentencing power, however, is vested in the judge. No meaningful bargaining regarding sentence concessions can take place without at least his tacit approval. Covering both charge and sentence concessions in one standard obscures the difference between bargaining with the prosecutor and bargaining with the judge, a difference recognized by the standards themselves when they state standard 3.3[a]) that the judge should not participate in the bargaining (see discussion, infra, part II), and by the courts (see cases collected in footnotes 3 and 4 and especially quotation above in footnote 3 from Mr. Justice Marshall's dissenting opinion as a United States circuit judge in United States, ex rel. McGrath, v. LaVallee [CA 2, 1963], 319 F2d 308, 319).

[8] "1.8 Consideration of plea in final disposition.

(a) It is proper for the court to grant charge and sentence concessions to defendants who enter a plea of guilty or nolo contendere when the interest of the public in the effective administration of criminal justice would thereby be served. Among the considerations which are appropriate in determining this question are:

(i) that the defendant by his plea has aided in ensuring the prompt and certain application of correctional measures to him;

(ii) that the defendant has acknowledged his guilt and shown a willingness to assume responsibility for his conduct;

(iii) that the concessions will make possible alternative correctional measures which are better adapted to achieving rehabilitative, protective, deterrent or other purposes of correctional treatment, or will prevent undue harm to the defendant from the form of conviction;

(iv) that the defendant has made public trial unnecessary when there are good reasons for not having the case dealt with in a public trial;

(v) that the defendant has given or offered cooperation when such cooperation has resulted or may result in the successful prosecution of other offenders engaged in equally serious or more serious criminal conduct;

(vi) that the defendant by his plea has aided in avoiding delay (including delay due to crowded dockets) in the disposition of other cases and thereby has increased the probability of prompt and certain application of correctional measures to other offenders.

(b) The court should not impose upon a defendant any sentence in excess of that which would be justified by any of the rehabilitative, protective, deterrent or other purposes of the criminal law because the defendant has chosen to require the prosecution to prove his guilt at trial rather than to enter a plea of guilty or nolo contendere."

[9] Along the same line, the award of sentence concessions has been defended on the ground that the defendant who pleads guilty has thereby avoided perjuring himself at trial, and, conversely, that it is appropriate to impose harsher sentences on those who testify and are nevertheless convicted by a jury because the jury verdict establishes that they have perjured themselves. (See authorities and discussion in commentary accompanying ABA guilty plea standards. pp 43, 44). However, even if the defendant has testified and even if the jury's verdict might be read as a determination that the defendant perjured himself in denying guilt, the judge may not properly punish for that offense until the defendant has been informed against, tried and convicted of that offense, and, conversely, the trial judge may not on that basis properly award to those who waive trial sentence concessions denied those who stand trial on the assumption that had they stood trial they would have testified falsely. See Baker v. State (1968), 3 Md App 251, (238 A2d 561, 566) (The trial judge may not consider defendant's possible involvement in another crime for which he was neither charged nor convicted: "That a just sentence based on proper considerations is an essential element of a fair trial cannot be questioned".)

[10] Considerations (iv) and (v) are atypical and, therefore, do not support a system of plea bargaining in general. As to consideration (iv), saving the complaining witness the embarrassment of a trial, see Letters v. Commonwealth, supra, 404, 405 (193 NE 578, 580). (In a rape case trial judge said he would impose consecutive life sentences "if it became necessary for the complainant to take the stand." Defendant pled to a reduced charge. In reversing, the appellate court said: "In view * * * of what is at stake for the defendant it would appear difficult to conclude that a decision not to plead guilty * * * is a significant reflection of character. The circumstances, if entertainable at all, would be relevant at the time for sentencing and not before. But, plainly, a defendant, whatever his character, may not be punished for exercising his right to trial and, therefore, the fact that he has done so should be given no weight in determining his sentence.")

As to consideration (v), a defendant who turns State's evidence, see Mr. Chief Justice Warren's dissent in United States v. Hoffa (1966), 385 US 293, 313 (87 S Ct 408, 17 L Ed 2d 374), rehearing denied 386 US 940, (87 S Ct 970, 17 L Ed 2d 880), stating the use of informers is proper in some circumstances but was improper in Hoffa.

[11] See Note, The Influence of the Defendant's Plea on Judicial Determination of Sentence, 66 Yale L J 204 (1956).

[12] The appellate courts of Michigan have denied themselves the power to review sentences unless the sentence imposed exceeds the statutory maximum. People v. Krum (1965), 374 Mich 356, 362; People v. Connor (1957), 348 Mich 456, 463; In re Doelle (1948), 323 Mich 241, 245; In re DeMecrleer (1948), 323 Mich 287, 289; People v. Harwood (1938) 286 Mich 96, 98; Cummins v. People (1879), 42 Mich 142, 144; People v. Pate (1965), 2 Mich App 66, 68; People v. Tetts (1967), 6 Mich App 254, 259.

It was not always thus. In People v. Murray (1888), 72 Mich 10, at a time when Michigan did not have an indeterminate sentence law and the defendant was required to serve whatever sentence was imposed unless pardoned, the defendant had been sentenced to 50 years in prison for statutory rape. The Supreme Court stated the sentence should not have exceeded 25 years, holding the trial judge had abused the discretion vested in him by the statute (pp 16, 17): "the sentence imposed * * * is for 50 years, and will very likely reach beyond the natural life of the respondent * * *. We see nothing in this record warranting any such sentence, and it must be regarded as excessive. It will not do to say the executive may apply the remedy in such a case. We do not know what the executive may do, and it is but a poor commentary upon the judiciary when it becomes necessary for the executive to regulate the humanity of the bench.

"But the Constitution has not left the liberty of the citizen of any state entirely to the indiscretion or caprice of its judiciary, but enjoins upon all that unusual punishments shall not be inflicted. * * *

"We are all of opinion that the present case shows an abuse of the discretion vested by the statute in the circuit judge in this respect." (Emphasis supplied.)

The ABA has also adopted Standards Relating to Appellate Review of Sentence (February, 1968). These provide that "judicial review should be available for all sentences imposed in cases where provision is made for review of the conviction." The accompanying commentary states, "Review of the merits of a sentence has actually been undertaken by an appellate court in only 21 States. The number in which review is realistically available in every serious case is much lower, something on the order of 15." (p 13)

Those States providing for review do so either by statute or, in a few States, by reassertion of the court's inherent judicial power. In those jurisdictions where appellate review exists, there is at least some opportunity for appellate courts to control sentence concessions negotiated under a plea bargaining system. But in jurisdictions not allowing for sentence review the practices of a bargaining system, except in the rarest case, will be obscured from appellate standards. Thus the ABA Appellate Review of Sentence proposals make somewhat more tolerable, in theory at least, the essentially regressive plea bargaining rationale of guilty plea standard 1.8.

[13] See United States v. Jackson (1968), 390 US 570 (88 S Ct 1209, 20 L Ed 2d 138); Spevack v. Klein (1967), 385 US 511 (87 S Ct 625, 17 L Ed 2d 574); Garrity v. New Jersey (1967), 385 US 493 (87 S Ct 616, 17 L Ed 2d 562).

[14] "Liberty and freedom partake more of the nature of articles of faith than articles of commerce." People v. Robinson (1955), 344 Mich 353, 361, by Mr. Justice TALBOT SMITH, dissenting on an issue not dealt with in the majority opinion.

[15] See People v. Byrd (1968), 12 Mich App 186, for a statement of Judge LEVIN'S views on plea bargaining with the prosecutor over charge reductions. See, also, People v. Hollman (1968), 12 Mich App 231.

[16] The problem is not solely indigenous to Michigan, as shown by a recent article, City Courts Facing a Growing Crisis, The New York Times, February 12, 1968, p 41:

"Every few minutes the assembly-line in the city's awesomely overloaded criminal court system lurches forward to produce a new defendant in an atmosphere of thinly masked impatience.

"He is like a factory product — ``like a can of peas being processed,' says an important criminal lawyer — to be labelled, handled briefly, then moved on, and often forgotten.

"The heavy volume forces such rapid handling — a dismissal, a guilty plea or an adjournment for a later hearing that everyone is under pressure to get out of the way for the next case. * * *

"``Instant justice' is the way Justice Bernard Botein, presiding judge of the appellate division for Manhattan and the Bronx, describes the criminal court process. ``We're holding it together with Scotch tape and wire because of lack of manpower — lack of judges and court personnel,' he explains."

[17] In O'Hara v. People (1879), 41 Mich 623, 624, the defendant was convicted by a jury, and then: "Some very extraordinary proceedings followed. The defendant was given by the judge to understand that he must submit to a severe sentence or else withdraw his plea of not guilty, enter a plea of guilty and immediately pay $400 and estop himself from bringing error. He accepted the last alternative and went through the form of withdrawing the plea on which he had been tried and convicted, and of pleading guilty, and paid in the $400.

"The attorney general very naturally declines to offer anything in defense of these proceedings. * * *

"The great impropriety of the later proceedings referred to is too manifest to justify extended comment.

"When a convicted person is brought up for sentence he has rights still, and it is specially incumbent on the judge to take care that they are fully observed and protected. No sort of pressure can be permitted to bring the party to forego any right or advantage however slight. The law will not suffer the least weight to be put in the scale against him, and any attempt cannot fail to be reprobated. Standing at the bar to receive judgment the law surrounds him with its protecting principles and intends that his sentence shall be the reflection of its justice and as far as possible free from all taint of human frailty." (Emphasis supplied.)

The later case of People v. Brown (1884), 54 Mich 15, cannot be read as an approval of the general practice of granting sentence concessions to those who plead guilty and imposing harsher treatment on those who do not. In People v. Brown, the Court found the defendant was not misled by the trial judge and reaffirmed its view that it is improper to induce pleas by promises or threats regarding the sentence to be imposed. The trial judge had been greatly importuned by many people. He acknowledged he had told the defendant if he (p 21): "should plead guilty, I should view his case as one meriting less punishment than I should feel disposed to impose should he be convicted after a trial by jury." The Supreme Court stated (p 29):

"The most that can be fairly imputed to the judge is an excess of patience in listening to the importunities. It was a natural consequence that he should on one occasion have been imprudent enough to intimate a purpose to impose a lighter sentence in case of conviction on plea of guilty than upon conviction by a jury. The importunities drew out from him that much; and it may be assumed that it possibly had some effect upon respondent's mind.

"Had an intimation of the sort been made by way of threat, and a plea of guilty been secured thereby, the judgment upon the plea ought to be set aside. O'Hara v. People, 41 Mich 623. And even though not given by way of threat, had a sentence of great severity followed, it might have been apparent that the defendant had been wronged." (Emphasis supplied.)

[18] Compare Bram v. United States (1897), 168 US 532, 543, 565 (18 S Ct 183, 42 L Ed 568): People v. Wolcott (1883), 51 Mich 612, 615.

[19] The defendant Earegood described his acts of participation in the crime before the judge accepted his plea of guilty to the reduced offense (see footnote 2, supra). Those statements may have been entirely accurate; on the other hand, they may have been made in order to justify the trial judge in accepting the plea. See footnote 20, infra, and discussion in People v. Byrd, ante, part IV. See, also, People v. Zaleski (1965), 375 Mich 71, 83; Kercheval v. United States (1927), 274 US 220, 223 (47 S Ct 582, 71 L Ed 1009); Williams v. Kaiser (1944), 323 US 471, 475 (65 S Ct 363, 89 L Ed 398); Rogers v. Richmond (1961), 365 US 534, 544 (81 S Ct 735, 5 L Ed 2d 760). But see People v. Dunn (1968), 380 Mich 693.

[20] Unless the defendant is willing to admit guilt to the lesser offense to which he is offered the opportunity to plead guilty, he will not be allowed to do so. People v. Barrows (1959), 358 Mich 267. See, also, additional cases collected in People v. Byrd, ante, footnote 23.

[21] Harrison v. United States (1968) 392 US 219 (88 S Ct 2008, 2011, 2012; 20 L Ed 2d 1047, 1053).

[22] "Even when there have been no explicit negotiations, defendants relying on prevailing practices often act on the justifiable assumption that those who plead guilty will be sentenced more leniently." The President's Commission on Law Enforcement and Administration of Justice, Task Force Report: The Courts (1967), p 9.