People v. Earegood , 383 Mich. 82 ( 1970 )

383 Mich. 82 (1970) 173 N.W.2d 205

PEOPLE
v.
EAREGOOD.

Calendar No. 19, Docket No. 52,181.

Supreme Court of Michigan.

Decided January 12, 1970.

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

Pelavin & Pelavin, for defendant on appeal.

PER CURIAM:

On July 23, 1965, defendant and two co-defendants were charged with armed robbery and with assault with intent to commit murder. On October 12, 1965, defendant appeared before the trial judge at which time a call of the criminal calendar took place. On that occasion, the 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." (Emphasis added.)

On November 16, 1965, an amended information was filed charging defendant with assault with intent to do great bodily harm less than the crime of murder. Defendant pled guilty on the same date to this lesser included offense. On December 17, 1965, defendant was sentenced to a minimum of eight years and a maximum of ten years. The two charges originally filed against defendant carry sentences for life or for any term of years. MCLA § 750.529 (Stat Ann 1969 Cum Supp § 28.797); MCLA § 750.83 (Stat Ann 1962 Rev § 28.278). The maximum term of imprisonment for the charge to which defendant did plead guilty is ten years. MCLA § 750.84 (Stat Ann 1962 Rev § 28.279).

Upon appeal to the Court of Appeals, the conviction and plea were set aside and the cause remanded for trial. (12 Mich App 256.) We granted leave. (381 Mich 787.)

Judge LEVIN wrote the majority opinion in the Court of Appeals. Commenting on the trial judge's statement, he wrote:

"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."

We agree with this holding of the Court of Appeals. It is, of course, impossible for a reviewing court to enter into the thought processes of a trial judge in imposing sentence upon a defendant; and, as a general rule, sentences are not subject to review. Upon occasion, however, this Court has dealt with a variety of sentences. See Moore v. Parole Board (1967), 379 Mich 624, 639. The usual procedure has been to send the case back to the trial judge for re-sentencing if it was found that the sentence was in some respect deficient. We limit our holding in this case to the proposition that it is impermissible for a judge in imposing sentence to take into consideration as a factor in determining the term of the sentence the fact that defendant pled or waived a jury at the last minute and we remand for re-sentencing.

We do not consider the question as to whether the statement of the trial judge constituted an implicit promise-threat — an overt judicial action in the exaction of a plea of guilty — for the reason that defendant did not plead guilty when the statement was made, nor did he at any time plead guilty to the charges which had been filed against him at the time the judge made the statement. If the statement of the judge was overt judicial action to exact a plea of guilty, it is clear from the record in this case that defendant was not influenced by the same since the plea of guilty was not entered on October 12, 1965, when the judge made the statement, but rather on November 16, 1965, when jury criminal cases were brought on for trial. In other words, defendant did the very thing the judge told him not to do unless he wished the judge to take that act into account in passing sentence and defendant did not carry out the purpose of the October 12, 1965 call — "to get pleas" — by then entering a guilty plea.

We take judicial notice of the fact that the trial judge who imposed sentence in this case is no longer on the bench. Consequently, defendant must be resentenced by another trial judge. In re-sentencing, the judge shall impose sentence after due and careful consideration of all of the factors which are proper to be taken into consideration upon imposing sentence, such as defendant's previous record, if any, the probation officer's report to the circuit judge, the nature and circumstances of the offense of which defendant is guilty, need of imprisonment as punishment or as a rehabilitative factor, etc. He shall give defendant credit for the time he has already served. Otherwise he shall not — either one way or the other — take into consideration the erroneous sentence which is hereby vacated.

The Court of Appeals is reversed insofar as it held that conviction and plea be set aside and the cause be remanded for trial. In lieu thereof, the sentence is set aside and the cause is remanded for re-sentencing.

T.E. BRENNAN, C.J., and DETHMERS, KELLY, BLACK, T.M. KAVANAGH, and ADAMS, JJ., concurred.

T.G. KAVANAGH, J., did not sit in this case.