People v. Mallory , 111 Mich. App. 629 ( 1981 )

111 Mich. App. 629 (1981) 314 N.W.2d 716

PEOPLE
v.
MALLORY

Docket No. 53843.

Michigan Court of Appeals.

Decided December 1, 1981.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and William T. Morris, Assistant Prosecuting Attorney, for the people.

Robert L. Ziolkowski, for defendant on appeal.

Before: N.J. KAUFMAN, P.J., and R.M. MAHER and D.C. RILEY, JJ.

PER CURIAM.

In a single plea proceeding, defendant pled guilty to three counts of armed robbery, MCL 750.529; MSA 28.797, and two counts of possession of a firearm while in the course of a felony, MCL 750.227b; MSA 28.424(2). The charges arose out of two separate incidents. Defendant was subsequently sentenced to concurrent prison terms of from 6 to 10 years on all of the armed robbery counts and an additional two years on both felony-firearm counts, to run concurrently with each other but consecutively to the armed robbery sentences. Defendant now appeals as of right.

Defendant raises several issues on appeal. One claim, however, is dispositive of the matter and requires reversal. Defendant asserts that his guilty plea was based on an illusory bargain since it was based in part on the prosecutor's representation that he would not file an habitual-offender complaint against defendant. At the time of defendant's plea the prosecutor was already precluded by People v Fountain, 407 Mich. 96; 282 NW2d 168 (1979), from filing such a complaint.

The decision in Fountain set forth three procedural rules regarding the filing of habitual-offender complaints:

"``(1) a prosecutor who knows a person has a prior felony record must promptly proceed, if at all, against the person as an habitual offender, (2) the prosecutor is not foreclosed from proceeding against a person as an habitual offender after conviction on the current offense provided he is unaware of a prior felony record until after conviction, and (3) the habitual-offender information should be filed simultaneously with the informations charging the current felonies where the prosecutors' respective offices prosecuted the prior felonies and must be presumed to have known of the defendants' prior felony records.'" People v Westbrook, 102 Mich. App. 296, 298; 301 NW2d 511 (1980). (Emphasis in original.)

In the instant case, the prosecution was constrained by the simultaneous filing requirement.

We realize that other members of this Court, when faced with this identical question, have chosen to write the simultaneous filing requirement out of Fountain. See, e.g., People v Leitner, 105 Mich. App. 681; 307 NW2d 405 (1981). This we cannot do. Until the Supreme Court chooses to alter the strict language of Fountain, we are bound to follow its mandate.^[1]

The transcript of defendant's guilty plea contains the following colloquy:

"The Court: All right. Have I satisfied the statute and court rule?

"Mr. Lang [Prosecuting Attorney]: Yes, your Honor.

"Mr. Yura [defense counsel]: Yes, your Honor. Mr. Lang said he will not supplement.

"Mr. Lang: That is right, your Honor.

"The Court: That is part of the promise, there will be no supplemental?

"Mr. Yura: That's right.

"The Court: All right. I will accept the plea * * *."

As much as this dialogue appears to be an afterthought to defendant's plea, we can only conclude that a promise not to supplement was a part of the plea agreement. Had the prosecutor thought otherwise, he might have stated on the record that defendant's plea had no bearing on the decision to reject habitual proceedings. Such a disclaimer could have avoided the present dilemma. Since defendant's plea was based in part on the promise to forego habitual prosecution, it was the product of an illusory bargain and must be vacated.

Reversed and remanded for further proceedings.

NOTES

[1] "[Ours is] not to make reply[; ours is] not to reason why[; ours is] but to do [or] die [or get reversed]". — Apologies to Alfred Lord Tennyson, "The Charge of the Light Brigade" (1854). Interestingly, the Supreme Court declined to expressly disavow the simultaneous filing rule, though presented with the opportunity in People v Young, 410 Mich. 363; 301 NW2d 803 (1981).