People v. Harris

568 N.W.2d 149 (1997) 224 Mich. App. 130

PEOPLE of the State of Michigan, Plaintiff-Appellee,
v.
Lamar Keith HARRIS, Defendant-Appellant.

Docket No. 189962.

Court of Appeals of Michigan.

Submitted February 5, 1997, at Grand Rapids. Decided June 10, 1997, at 9:10 a.m. Released for Publication September 11, 1997.

Frank J Kelley, Attorney General, Thomas L. Casey, Solicitor General, Brian L. Mackie, Assistant Prosecuting Attorney, for People.

State Appellate Defender by Rolf E. Berg and Lamar K. Harris, in pro. per.

Before BANDSTRA, P.J., and HOEKSTRA and J.M. BATZER^[*], JJ.

BANDSTRA, Presiding Judge.

In return for the dismissal of a first-degree murder charge and other charges, defendant pleaded guilty to second-degree murder, M.C.L. § 750.317; M.S.A. § 28.549, and was sentenced to life in prison. On appeal, defendant argues that the trial court abused its discretion in denying his motion to withdraw the guilty plea and that his counsel was ineffective. We affirm.

There is no absolute right to withdraw a guilty plea once it has been accepted. People v. Gomer, 206 Mich.App. 55, 56, 520 N.W.2d 360 (1994). When a defendant moves to withdraw his guilty plea before sentencing, the burden is on the defendant to establish a fair and just reason for withdrawal of the plea. People v. Jackson, 203 Mich. App. 607, 611, 513 N.W.2d 206 (1994). A trial court's denial of a defendant's motion to withdraw a guilty plea is reviewed for an abuse of discretion. People v. Kennebrew, 220 Mich.App. 601, 605, 560 N.W.2d 354 (1996); People v. Spencer, 192 Mich.App. 146, 150, 480 N.W.2d 308 (1991).

In this case, defendant asserts that the trial court misled and misinformed him regarding the difference between the sentences for first- and second-degree murder. We have reviewed the trial court's statements at the guilty plea hearing and conclude that they were neither incorrect nor misleading. Reasonably understood, the court's comments informed defendant that a second-degree murder sentence presented the possibility of parole whereas a first-degree murder sentence did not. This is a correct statement. Defendant argues in his appellate brief that one "clear implication" of the trial court's statements was "a reasonable expectation... that [defendant] would get out of prison at some time" pursuant to parole procedures.^[1] We disagree; the trial court correctly informed defendant of the "possibility of being paroled" and made no comment regarding whether parole would actually ever occur.

Defendant also argues that his motion to withdraw the guilty plea should have been granted because that plea was "based upon an illusory sentencing benefit." A defendant may be entitled to withdraw a guilty plea if the bargain on which the plea was based was illusory, meaning that the defendant received no benefit from the agreement. People v. Graves, 207 Mich.App. 217, 218, 523 N.W.2d 876 (1994); People v. Mrozek, 147 Mich.App. 304, 306-307, 382 N.W.2d 774 (1985). However, where the facts in a case indicate that a plea is voluntary, the plea will be upheld regardless of whether the defendant received consideration in return. Graves, supra at 219, 523 N.W.2d 876; Mrozek, supra at 307, 382 N.W.2d 774.

The gist of defendant's argument here is that there is no practical sentencing difference between first-degree and second-degree murder. Defendant points out that he could be released from prison under a sentence for first-degree murder of life without parole through a gubernatorial commutation under Const. 1963, art. 5, § 14. Citing statistics regarding the limited number of paroles granted to persons sentenced to parolable life imprisonment, defendant argues that he would have had an equal chance of being released from incarceration through a commutation had he been convicted of first-degree murder.

Even assuming arguendo that, as defendant contends, "most prisoners sentenced to parolable life are never released from prison,"^[2] we do not conclude that defendant's plea bargain was illusory. While defendant argues quite creatively that the sentencing differences between first-degree murder and second-degree murder may not be as significant as they seem, there are still differences that could lead a defendant to reasonably conclude that pleading guilty to the lesser charge is a better option. Defendant concedes that the "maze of statistics" presented to show that parole and commutation rates are similar also show that "[t]he numbers ... appear to be slightly higher for lifer law paroles." Thus, these statistics demonstrate that a second-degree murder conviction is more advantageous than a first-degree murder conviction. A second-degree murder conviction may also be more desirable because legislative changes could increase the possibility of parole in the future. As a result of prison overcrowding concerns or for other reasons, the Legislature may well change the lifer law parole process to defendant's benefit. That process is established exclusively by statute, M.C.L. § 791.234; M.S.A. § 28.2304, and amenable to change through the relatively simple legislative process. In contrast, commutation powers are vested in the Governor through our constitution and could not be significantly altered without constitutional revision.

These considerations are merely illustrative of the fact that, however slight, there are real differences between the sentencing prospects for first- and second-degree murder.^[3] Defendant's plea bargain was not illusory and there was no abuse of discretion in the trial court's denying the motion to withdraw that plea.

Finally, defendant argues that his trial counsel was ineffective in advising him to accept an illusory plea agreement. We have concluded that the primary plea bargain agreed to here, dismissing a first-degree murder charge and pleading to a second-degree charge, was not illusory. Beyond that, at least five other charges were dismissed against defendant in this case and another case in return for the plea. All of this belies defendant's argument that his counsel improperly advised him to accept an illusory plea agreement. We are not persuaded that there was deficient performance on counsel's part that prejudiced defendant. People v. Pickens, 446 Mich. 298, 309, 521 N.W.2d 797 (1994).

We affirm.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] Similarly, defendant argues that the trial court abused its discretion in denying his motion to withdraw the guilty plea because it was acting on an erroneous determination of law or clearly erroneous findings of fact. Defendant argues that the court based its denial of the motion on the notion that defendant had a good chance of being paroled. The record does not support that understanding of the trial court's reasoning in denying the motion; the trial court specifically told defendant that "[yjou're going to spend probably most of your life in prison."

[2] See People v. Cooper, 440 Mich. 858, 860, 486 N.W.2d 688 (1992) (Cavanagh, C.J., Brickley, and Levin, JJ., dissenting from denial of leave to appeal).

[3] Our job is not to determine whether there is "enough" of a difference between the options presented to a defendant to conclude that the resulting plea bargain was not illusory. If we were to adopt defendant's argument, there is no telling what plea bargains would be branded "illusory" by defendants in the future. As one example, a defendant facing multiple assault charges and pleading down to one charge could well argue that the sentences for the dismissed charges would likely have been imposed concurrently. Thus, the defendant could argue that the plea bargain was illusory; had the defendant proceeded to trial on all charges and been convicted, his period of incarceration may not have exceeded that imposed for the one offense to which the defendant pleaded guilty.