People v. Clark

Bashara, P. J.

I adopt the facts from Judge Cavanagh’s dissenting opinion.

The defendant seeks to withdraw his four guilty pleas. He contends that the plea transcripts do not disclose the entire plea agreement. That portion of the plea agreement not on the record is a purported agreement by the defendant to cooperate with the FBI in certain narcotics investigations. In return for the defendant’s cooperation it is alleged that the FBI agreed to urge the prosecutor to recommend a more lenient sentence.

GCR 1963, 785.7(2)(b) requires that the plea agreement be stated on the record. The purpose for placing the agreement on the record is to aid the reviewing court in determining whether all attendant promises have been satisfied. People v Hubbard, 57 Mich App 542, 547; 226 NW2d 557 (1975), vacated 395 Mich 801 (1975), People v Otha Edwards, 58 Mich App 196, 199; 227 NW2d 290 (1975), lv den 395 Mich 820 (1975).

In the case at bar the record reveals that the defendant did not comply with the purported plea agreement. His motion to withdraw his guilty pleas was an attempt to extricate himself from an alleged plea bargain that he breached. This is readily apparent from the colloquy between the court and the defendant at the sentencing proceedings:

"The Court: Mr. Clark.

"Defendant Clark: Well, at the time of the plea bargaining it was an agreement with the law agency that I was to co-operate with them and failure to do so on my behalf. I feel that at this time I wish to withdraw all four motions for the plea and stand trial.

"The Court: For what reason?

"Defendant Clark: I want a jury. I want a jury. I withdraw my plea.

"The Court: What was improper about the pleas that you gave to this Court?

"Defendant Clark: Well, two or three reasons. Mainly the fact that I felt that it wasn’t any plea bargaining, you know, on my behalf, you know.

"The Court: Specifically what do you mean?

"Defendant Clark: For me, I want to withdraw my plea of guilty to not guilty.

"The Court: I am asking you for what reason.

"Defendant Clark: Well, the reasons were at the time I was approached by the F.B.I. to co-operate with them and that the stipulation would be that they would get my bond reduced and get me out on bond, and to plead to the charge, but failure to do so, your [sic] know, nothing accomplished by that. They were supposed to have everything taken care of if I would have co-operated, but I failed to do so, I feel that I would like to withdraw my plea. "(Emphasis supplied.)

Following this colloquy defense counsel conceded that the government had not breached the plea agreement.

"The Court: Do you know anything in the plea bargaining as to this plea that were [sic] violated?

"Mr. Brown: (Defense counsel) Nothing comes to my mind.”

A remand to have the plea agreement placed on the record for the benefit of this Court is unnecessary. Accepting as true defendant’s assertions regarding the missing portions of the plea agreement, the defendant unequivocally admitted on the record that he breached the plea ágreement. The FBI’s obligation to urge the prosecutor to recommend a lighter sentence never arose, because the defendant never satisfied the condition precedent of cooperating with that law enforcement agency.

The defendant has accompanied his brief with a sworn affidavit alleging certain cooperation with the FBI. A single affidavit is insufficient to remand or reverse a plea of guilty. People v Rodriguez, 61 Mich App 42; 232 NW2d 293 (1975). The application of this rule seems particularly appropriate to this situation, in light of defendant’s clear admission on the record that he did not cooperate with the FBI.

The cases of People v Christian, 68 Mich App 480; 242 NW2d 813 (1976), and People v Rodriguez, supra, are easily distinguishable. In both of those cases there existed the possibility that the defendants were entitled to some unfulfilled promises. That is not the situation here.

Nor do I agree that a remand merely to place the plea agreement on the record is required at all times. Although People v Strong, 59 Mich App 159, 162; 229 NW2d 354 (1975), supports such a proposition, it’s validity is suspect today. Strong was decided in light of People v Shekoski, 393 Mich 134; 224 NW2d 656 (1974), which required strict compliance with the court rule. In Guilty Pleas Cases, 395 Mich 96, 113; 235 NW2d 132 (1975), the Michigan Supreme Court modified Shekoski. It stated that whether a particular departure from GCR 1963, 785.7 justified or required reversal or remand for additional proceedings depended on the nature of noncompliance.

In the instant case the apparent reason for not placing the entire plea agreement on the record was to protect the defendant’s cover. This may or may not be an appropriate reason for omitting a portion of the plea agreement. In any event, in view of the defendant’s admission of non-cooperation, it is unnecessary to remand to have the plea agreement placed on the record.

The remaining issue raised by the defendant is without merit. See People v Moore, 60 Mich App 1, 3-4; 230 NW2d 281 (1975).

Affirmed.