People v. Bahlhorn , 105 Mich. App. 118 ( 1981 )

105 Mich. App. 118 (1981) 306 N.W.2d 416

PEOPLE
v.
BAHLHORN

Docket No. 47841.

Michigan Court of Appeals.

Decided April 8, 1981.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Michael W. LaBeau, Prosecuting Attorney, and William D. Bond, Assistant Prosecuting Attorney, for the people.

Nora J. Pasman, Assistant State Appellate Defender, for defendant on appeal.

Before: N.J. KAUFMAN, P.J., and M.J. KELLY and CYNAR, JJ.

M.J. KELLY, J.

Defendant pled guilty to possession of a controlled substance, MCL 333.7403(2)(a)(iv); MSA 14.15(7403)(2)(a)(iv), and was sentenced to 14 months to 2 years imprisonment. Defendant now appeals of right. There was a plea pursuant to a sentence bargain agreement reached with the prosecutor. On July 26, 1979, the trial judge disregarded the prosecutor's sentence recommendation and sentenced defendant to a term of 14 months to 2 years. The agreement with the prosecutor was to the effect that he would recommend only county jail time and that any sentence of incarceration could be served on weekends at the county jail. The learned trial judge specifically cautioned the defendant that he was not required to follow the prosecutor's recommendations. He emphasized that the court often ignored such recommendations and that there was no guarantee she would not be sent to prison.

This Court is split as to whether a trial judge must grant the defendant an opportunity to withdraw a guilty plea when the prosecutor's sentence recommendation, bargained for by the defendant, is not followed. In People v Briggs, 94 Mich. App. 723; 290 NW2d 66 (1980), lv gtd 408 Mich. 958 (1980), the Court held that a defendant was entitled to an opportunity to withdraw the plea. The opposite result was reached by a different panel in People v Yates, 99 Mich. App. 396; 297 NW2d 680 (1980).

We acknowledge that it is a close question, but we lean to the rationale of People v Briggs, supra, 726, in which the Court cited the ABA Standards, Pleas of Guilty, § 3.3(b) (Approved Draft, 1968) and "principles of fairness" to hold that "the defendant [should] be given an opportunity to withdraw his plea upon learning that the sentence recommendation, which played at least a partial role in his decision to forego trial and plead guilty, will not be followed". A cautionary instruction by the trial court that it was not bound to accept the prosecutor's sentence recommendation would not, in our view, change a defendant's expectation that the plea agreement will be carried out.

This decision is not to be interpreted as a criticism of the sentencing judge, who could not have been more explicit when he said "the court can and often does ignore recommendations made by the prosecutor or other persons". We would like to offer the suggestion that in jurisdictions where the prosecutor's recommendations are not weighted, the prosecutor decline to make sentence recommendations and we will not get into the charade carried on in cases such as this, Briggs and People v Hagewood, 88 Mich. App. 35; 276 NW2d 585 (1979).

The case is remanded to the trial court with instructions to give the defendant an opportunity to withdraw her plea if she so desires. If she does not move to set aside her plea within 20 days of the date of the certification of this opinion, her conviction and sentence are affirmed. We do not retain jurisdiction.

N.J. KAUFMAN, P.J., concurred.

CYNAR, J. (dissenting).

I respectfully dissent. Prior to accepting defendant's plea, the trial court clearly and specifically informed defendant that the court was not bound by the prosecutor's recommendation, which the defendant acknowledged she understood. The trial judge did all that was required of him under the circumstances, People v Hagewood, 88 Mich. App. 35, 39; 276 NW2d 585 (1979) (CYNAR, J., concurring), and People v Yates, 99 Mich. App. 396, 399; 297 NW2d 680 (1980). I would affirm.