People v. Phillip Smith , 90 Mich. App. 572 ( 1979 )

90 Mich. App. 572 (1979) 282 N.W.2d 399

PEOPLE
v.
PHILLIP SMITH

Docket Nos. 77-1928, 77-1929.

Michigan Court of Appeals.

Decided June 6, 1979.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Anne B. Wetherholt, Assistant Prosecuting Attorney, for the people.

Ruby & Ruby, P.C., for defendant on appeal.

Before: D.C. RILEY, P.J., and M.J. KELLY and BEASLEY, JJ.

D.C. RILEY, P.J.

On February 11, 1977, defendant Phillip Smith, 15 years old, pled guilty to three separate counts of armed robbery, MCL 750.529; MSA 28.797, pursuant to the following plea bargain:

"The People also would promise that if Your Honor would sentence on sentencing date this defendant to a minimum term of ten years or more, we would not prosecute him as a Habitual. And that's a promise we made based on sentencing, so that's a conditional promise that we have made."

Defendant was sentenced to three concurrent terms of 10 to 15 years imprisonment, appeals two of the convictions by right, and alleges that, as he could not have been prosecuted as a habitual offender, his guilty pleas were involuntary due to the illusory nature of the prosecutor's bargain. Our careful review of the record persuades us to agree.

Under Michigan's multiple offender recidivist statutes, MCL 769.10 et seq.; MSA 28.1082 et seq., in order for a defendant to be subject to supplementation, the first felony conviction must predate the commission of the second felony. People v Roderick Johnson, 86 Mich. App. 77, 79; 272 NW2d 200 (1978). The record discloses that at the time defendant committed each offense to which he pled guilty, he had not been convicted of any previous felonies. Nor does the fact that each of defendant's present felonies to which he pled were committed at different points in time alleviate the infirmity. People v Roderick Johnson, supra, at 79-80.

As defendant's plea was induced by a promise to forego a recidivist proceeding where no such proceeding was warranted, defendant was per se misinformed as to the benefit of his plea and the bargain was hence illusory. People v Roderick Johnson, supra, at 79. See People v Lawson, 75 Mich. App. 726; 255 NW2d 748 (1977), Hammond v United States, 528 F2d 15 (CA 4, 1975).

Defendant's convictions are reversed.

BEASLEY, J., concurred.

M.J. KELLY, J. (dissenting).

In case No. 7608738, defendant was charged with five counts: two counts of criminal sexual conduct in the second degree, two counts of armed robbery and one count of unlawfully driving away a motor vehicle. He was bound over on all five counts. In case No. 7608751, defendant was charged with armed robbery with a starter pistol, and in case No. 7608766, he was charged with armed robbery with a sawed-off shotgun. The consideration for his guilty pleas appears to have been a sentence bargain reducing his multiple exposure to life maximum sentences to three concurrent sentences of 10 to 15 years. The trial judge well knew that defendant was not exposed to supplementation as a habitual offender. At the plea proceeding, the court asked:

"The Court: Have you ever been in a criminal court before?

"The Defendant: No, sir.

"The Court: Have you ever pleaded guilty to anything before?

"The Defendant: No, sir."

At sentencing, the court summarized the bargain:

"Well, I see from this report that these three offenses are not the limit of your violations. You still have some cases pending over at Juvenile Court. Is that right?

"The Defendant: Yes, sir.

"The Court: One is carrying a concealed weapon. Another one is larceny from a building. And a third one is another charge of armed robbery. Is that right?

"The Defendant: Yes, sir.

"The Court: Prior to your plea in this case, I had some discussions with your lawyers, and I told them that unless I was persuaded otherwise after reading the probation report, I would be disposed to send you to Jackson for not less than ten and not more than fifteen years."

I think the prosecutor's reference to habitual offender proceedings was gratuitous and no part of any bargain. As such, I do not find the instant plea bargain illusory.

I would therefore affirm or, at the very most, remand for a hearing in the trial court as to whether the prosecutor's agreement not to supplement the defendant was any material part of the consideration for the defendant's pleas.