People v. Grove , 208 Mich. App. 574 ( 1995 )

208 Mich. App. 574 (1995) 528 N.W.2d 796

PEOPLE
v.
GROVE

Docket No. 161031.

Michigan Court of Appeals.

Submitted October 6, 1994, at Marquette. Decided February 6, 1995, at 9:50 A.M.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, Thomas L. Smithson, Prosecuting Attorney, and Steven B. Flancher, Assistant Attorney General, for the people.

Lester O. Pollak, for the defendant on appeal.

Before: GRIFFIN, P.J., and SAWYER and R.L. ZIOLKOWSKI,^[*] JJ.

GRIFFIN, P.J.

Following a jury trial, defendant was convicted of one count of second-degree criminal sexual conduct, MCL 750.520c(1)(a); MSA 28.788(3)(1)(a). He was sentenced to forty months' to fifteen years' imprisonment. Defendant now appeals as of right. We reverse.

On August 2, 1991, defendant pleaded guilty to one count of fourth-degree criminal sexual conduct, MCL 750.520e; MSA 28.788(5). Defendant agreed to plead guilty to the charge in exchange for the prosecutor's promise to recommend that his sentence not exceed one year in the county jail. In addition, the prosecutor agreed to dismiss one count of first-degree criminal sexual conduct, MCL 750.520b; MSA 28.788(2), and one count of second-degree criminal sexual conduct. The trial court took the plea agreement under advisement and ordered the preparation of a presentence investigation report (PSIR). On October 8, 1991, the trial court rejected the plea agreement and underlying guilty plea after reviewing the PSIR:

The Court has had the benefit of reading the presentence report, and I've had a conference with counsel and Mr. Ayotte of the corrections department in chambers. I noted to them that I had read the defendant's version of the incident, as well as the victim's version, and had read her recommendation. I noted that there was a wide disparity between the victim's version of what had happened, the length of time it had gone on, versus that of the victim [sic]. I noted the victim recommended prison time and the cap as recommended by the prosecutor would not allow for prison time. I indicated that I thought I had the discretion, having taken the plea under advisement, and needed to first rule on whether or not I would accept the guilty plea. I indicated in chambers that it was not my intent to accept the guilty plea. I do not feel it would be in the interest of justice. I feel that there is such a wide disparity between what the victim claims had happened, as opposed to what the defendant claimed had happened, and the victim's desire of a prison term that it would not be fair and in the interest of justice to accept this matter plea bargained to fourth degree.

Following the trial court's refusal to accept defendant's guilty plea, he was tried on two counts of first-degree criminal sexual conduct and one count of second-degree criminal sexual conduct.

The narrow issue we address on appeal is whether a trial court is able to exercise its discretion to refuse to accept a guilty plea underlying a plea agreement that includes a prosecutorial sentence recommendation.

In resolving this issue, we find dispositive the interplay between MCR 6.301(B) and MCR 6.302(C) (3). MCR 6.301(B) provides that "[a] defendant may enter a plea of nolo contendere only with the consent of the court." The staff comments to MCR 6.301(B) set forth the history of this provision and its intended purpose:

Subrule (B) is a modification of a provision in former 6.101(F). The former rule provided that the court's consent was required before a defendant would be permitted to plead guilty or nolo contendere. Subrule (B) has deleted the requirement for the court's consent to a plea of guilty. The consent provision in the former rule has been construed as giving the trial court the discretion to refuse to accept a guilty plea because of disagreement with the plea bargain agreed to by the prosecutor and the defendant. See People v Ott, 144 Mich. App. 76 (1985). Accordingly, deletion of the consent provision indicates that the trial court may not refuse to accept a guilty plea based solely on disagreement with the wisdom of the plea, of the charge, or of the plea bargain, unless the bargain is conditioned on the court's agreement to some provision, such as sentence disposition. See 6.302(C)(3). As is noted in subrule (A), however, the court may refuse to accept a plea based on noncompliance with a requirement in these rules. [Emphasis added.]

In contrast, MCR 6.302(C)(3) incorporates and clarifies the sentence-bargaining procedures articulated in People v Killebrew, 416 Mich. 189, 206-212; 330 NW2d 834 (1982), regarding a trial court's options when faced with a plea agreement that includes a specific sentence disposition or a prosecutorial sentence recommendation:

(3) If there is a plea agreement and its terms provide for the defendant's plea to be made in exchange for a specific sentence disposition or a prosecutorial sentence recommendation, the court may

(a) reject the agreement; or

(b) accept the agreement after having considered the presentence report, in which event it must sentence the defendant to the sentence agreed to or recommended by the prosecutor; or

(c) accept the agreement without having considered the presentence report; or

(d) take the plea agreement under advisement.

If the court accepts the agreement without having considered the presentence report or takes the plea agreement under advisement, it must explain to the defendant that the court is not bound to follow the sentence disposition or recommendation agreed to by the prosecutor, and that if the court chooses not to follow it, the defendant will be allowed to withdraw from the plea agreement.

Although not addressed by MCR 6.302(C)(3), this Court in People v Siebert, 201 Mich. App. 402, 410-411; 507 NW2d 211 (1993), lv gtd 446 Mich. 865 (1994), set forth the substantive distinctions recognized in Killebrew between a plea agreement that includes a specific sentence disposition and one containing a prosecutorial sentence recommendation:

A sentence recommendation is but a recommendation, without agreement by the court. Killebrew at 208. There is no promise of a specific sentence, and the court's sentencing discretion is completely unfettered. The court may accept the guilty plea, yet refuse to be bound by the sentence recommendation. The only restriction, set forth both in Killebrew and in the court rule, is that if the court does not follow the sentence recommendation, the defendant must be given an opportunity to withdraw the guilty plea. A sentence agreement is, however, an agreement for a specific sentence. Under Killebrew, the court has the option of accepting the plea and imposing the agreed-upon sentence, or rejecting the plea. Killebrew at 207. Killebrew took great care to distinguish sentence agreements from sentence recommendations and did not state an option of accepting a plea involving a sentence agreement and imposing a different sentence subject to the defendant's affirmance of the plea, as is the case with a sentence recommendation.

On the basis of Killebrew and our reading of the staff comments to MCR 6.301(B), we find unpersuasive the people's argument that MCR 6.302(C)(3) gives a trial court the discretion to refuse to accept a defendant's guilty plea. Unlike MCR 6.301(B), MCR 6.302(C)(3) refers to a trial court's acceptance or rejection of a plea agreement rather than the underlying guilty plea itself. Further, although we recognize that MCR 6.302(C)(3) allows a trial court to reject a plea agreement based upon a prosecutorial sentence recommendation, it is silent regarding the underlying plea.

In our view, both Killebrew and the staff comments to MCR 6.301(B) recognize that a trial court's discretion to refuse to accept an underlying guilty plea is contingent on the terms of the parties' plea agreement. Under the sentence-bargaining procedures articulated in Killebrew, a trial court retains the option to reject a defendant's underlying guilty plea only when the plea agreement includes a specific sentence disposition. In contrast, Killebrew requires a trial court that rejects a plea agreement that includes a sentence recommendation to state the sentence that it finds to be appropriate and give the defendant the opportunity to withdraw the guilty plea. See also People v Cobbs, 443 Mich. 276, 282; 505 NW2d 208 (1993). In short, neither Killebrew nor MCR 6.302(C)(3) gives a trial court the discretion to reject a guilty plea underlying a plea agreement that includes a prosecutorial sentence recommendation.

Further support for this position is found in the staff comments to MCR 6.301(B). The staff comments indicate that a trial court may exercise its discretion to refuse to accept a guilty plea only when the plea agreement "is conditioned on the court's agreement to some provision, such as sentence disposition." As noted in Killebrew, the chief distinction between a sentence recommendation and a sentence agreement is that a prosecutorial "recommendation" does not bind the court. Thus, unlike a plea agreement where a defendant agrees to plead guilty in exchange for a specific sentence disposition, a prosecutorial sentence recommendation does not require mutual agreement by the court.

In summary, we conclude that the trial court abused its discretion in refusing to accept defendant's plea of guilty of one count of fourth-degree criminal sexual conduct. We reverse defendant's conviction of second-degree criminal sexual conduct and remand the case to the circuit court. On remand, we instruct the trial court to permit defendant to plead guilty of fourth-degree criminal sexual conduct in exchange for the terms of the parties' previous plea agreement. If the trial court elects to reject the recommended sentence, then it must state the sentence it finds appropriate and give defendant the opportunity to affirm or withdraw his guilty plea.

Our resolution of this issue renders it unnecessary to address defendant's remaining issues on appeal.

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

NOTES

[*] Recorder's Court judge, sitting on the Court of Appeals by assignment.