People v. Alford , 101 Mich. App. 446 ( 1980 )

101 Mich. App. 446 (1980) 300 N.W.2d 593

PEOPLE
v.
ALFORD

Docket No. 49337.

Michigan Court of Appeals.

Decided November 5, 1980.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert E. Weiss, Prosecuting Attorney, and Donald A. Kuebler, Chief Appellate Division, for the people.

Green, Haldy, Gibbs & McCabe, for defendant on appeal.

Before: M.F. CAVANAGH, P.J., and M.J. KELLY and BEASLEY, JJ.

PER CURIAM.

The defendant pled guilty to the charge of breaking and entering a store building, MCL 750.110; MSA 28.305. Defendant contends that the prosecution's agreement not to charge the defendant as an habitual criminal caused the plea agreement to be illusory because the prosecution was precluded from filing that charge at the time the plea was accepted.

We find the defendant's argument to be without merit.

People v Fountain, 407 Mich. 96; 282 NW2d 168 (1979), stands for the proposition that the prosecution must proceed promptly against a defendant known to have a prior felony record when seeking to charge the defendant as an habitual criminal. Only the prosecutor's lack of awareness of the prior felony or the need to verify out-of-state convictions excuse the filing of the habitual criminal charge after the defendant's conviction of the current offense. People v Hendrick, 398 Mich. 410; 247 NW2d 840 (1976).

Legislation which allows a defendant to be charged as an habitual criminal, MCL 769.10 et seq.; MSA 28.1082 et seq., "increases punishment ``because of the apparent persistence in the commission of crime by the person convicted and his indifference to the laws deemed necessary for the protection of the people and their property'. People v Palm, 245 Mich. 396, 401; 223 N.W. 67 (1929)". Hendrick, supra, 416.

"The use of a potential habitual offender charge as a plea bargaining tool has been upheld in a recent decision of the United States Supreme Court. Bordenkircher v Hayes, 434 U.S. 357; 98 S. Ct. 663; 54 L. Ed. 2d 604 (1978). Under Bordenkircher, a prosecutor may threaten to charge a defendant with a habitual offender prosecution, if applicable, in order to induce a plea, or may promise to forego such a prosecution in exchange for a plea. On its face the plea bargain in the case at bar thus would be valid and enforceable." People v Roderick Johnson, 86 Mich. App. 77, 78; 272 NW2d 200 (1978).

In Fountain, supra, 99, the Court found that the prosecutor had reliable information about the defendant's prior felony convictions but did not charge the defendant as an habitual criminal until after conviction on the current felony charge. The Court said, "The habitual offender charges should have been filed with the information which charged the last felony to provide fair notice to the accused and avoid an appearance of prosecutorial impropriety".

In the present case, even though no information had been filed charging the defendant as an habitual criminal, the defendant was apprised of the prosecutor's ability to so charge him. The defendant chose to offer a plea of guilty in exchange for the prosecutor's foregoing the habitual criminal charge. The defendant informed the court that he was on parole at the time he appeared before the trial court to enter his plea. It was also brought to the court's attention that the defendant had spent nine of the last ten years before his arrest on the present charge in the custody of the Michigan Department of Corrections.

The defendant's case had not proceeded to trial, and so there was no conviction that would preclude the prosecution from bringing the habitual offender charge. The prosecutor's offer not to charge the defendant as an habitual offender was an agreement to refrain from bringing a charge which the prosecutor had the power to bring. Accordingly, the plea agreement entered into by the defendant was not illusory.

We find no evidence of prosecutorial impropriety in the record. The trial court's acceptance of the plea was in accordance with GCR 1963, 785.7. The defendant's plea of guilty must stand.

Affirmed.