People v. Hall

M. J. Kelly, P. J.

Defendant-appellant was charged with and pled guilty to armed robbery, MCLA 750.529; MSA 28.797. He was sentenced to 20 to 40 years and it is the minimum sentence which is the central issue on this appeal. Defendant claimed he was wrongfully induced to plead guilty to the crime charged by a promise conveyed to him by his attorney that the prosecutor would recommend a minimum sentence of 10 years. On December 14, 1973, an evidentiary hearing was held in the trial court on defendant’s motion to vacate sentence. The plea and sentence were affirmed. Defendant appeals of right.

We reverse. There is good reason to believe that the defendant relied on the representation that the prosecutor would recommend a minimum sentence of 10 years incarceration. Due process requires that any doubt as to whether or not defendant’s reliance was reasonable must be resolved in favor of defendant. People v Byrd, 12 Mich App 186, 230; 162 NW2d 777 (1968) (concurring opinion of Levin, J.). See also, People v Gray, 29 Mich App 301, 304; 185 NW2d 123 (1970) (concurring opinion of Levin, J.). Our decision is not grounded on the theory that defendant’s plea was induced by an unkept promise of the prosecutor. We say only that: "[T]he plea followed a mistaken statement by the defendant’s attorney that a concession had been arranged with the * * * prosecutor, without regard to whether the * * * prosecutor led the attorney to make the statement.” People v Byrd, supra, at p 226, fn 56 (citations omitted).

We follow the test recommended by Justice Levin in his Byrd opinion for reviewing such claims:

"[T]he test should not be whether the defendant establishes the truth of his claim by a preponderance of the evidence. Rather, his claim should be deemed established, and the plea set aside, if the evidence causes the judge to entertain a reasonable doubt whether the plea was 'encouraged’ by a false promise of leniency in sentencing. Under a reasonable doubt standard, the court need not wholly adopt the defendant’s story, or wholly reject the attorney’s story. He may simply conclude that, on the evidence, he is in doubt, and, the defendant being entitled to the benefit of that doubt, he will set aside the plea and allow the defendant to stand trial.” 12 Mich App 229-230. (Fn omitted.)

The record convinces us the defense attorney (counsel on appeal was not the trial attorney) had the impression that he had been told by the prosecutor’s office that the prosecutor would recommend a ten-year minimum. He equivocated at the hearing below as to how strongly he characterized the recommendation in his conversations with the defendant, but there is convincing evidence that he was bargaining about minimum sentence. This is not to say that the bargaining was clearly mutual, or to imply any criticism of the prosecutor or any member of his staff. The defense attorney undoubtedly read more into the bargaining sessions than was warranted. Nor do we say that the defendant’s testimony, which was unequivocally that he relied on the promise conveyed by his attorney of a guaranteed minimum ten, was anything but self-serving.

The defense attorney had told defendant that sentence was all that he had to bargain about; that he had to plead "on the nose” because the prosecutor would not take a plea to a lesser offense. Defense counsel testified that he had focused entirely on the question of minimum sentencing. He filed an affidavit in which he flatly stated that he had told appellant that the prosecutor would recommend a ten-year minimum. His testimony corroborated the affidavit in part and contradicted it in part. He also testified that he "believed” that he told appellant he had no control over what the judge’s ultimate sentence would be.

However this is not a sentence issue. It is a recommendation issue. This is not a question of whether or not the judge exercised his discretion to disregard the prosecutor’s recommendation. This is a question of whether or not the appellant relied on promises made to him to the effect that the prosecutor would recommend a ten-year minimum.

On the basis of the entire transcript, the affidavits and the inferences drawn from both, it is our opinion that the defendant was told that the prosecutor would recommend a ten-year minimum, that he relied upon that representation; but the recommendation was, in fact, for a 20-year minimum, which recommendation was adopted by the trial court and the defendant sentenced thereon.

One other aspect of this proceeding should be mentioned. We observe that defense counsel’s testimony was somewhat ambivalent. He offered the explanation that this had been his first time in Washtenaw County and "things are humming a little different in Wayne County * * * ”. We draw an inference from that explanation. The inference is that he thought he made some sort of a shortcut plea agreement which would have been sufficient for reliance in Wayne County. There would, of course, be the further requirement that it be sub rosa in view of the colloquy at the plea taking, wherein defendant testified no promises were made. Defendant corroborates this surmise (again, of course, it is self-serving) by testifying that the plea taking was a pro forma charade, designed only to make a perfect record to satisfy an obscure purpose.

The inference drawn may be incorrect. If it is correct, however, such a shortcut is worthy of condemnation. We remind counsel that when a sentencing recommendation is an element of a plea bargain it must be recorded. GCR 1963, 785.7(2) applies to all 83 counties including Washtenaw and Wayne.

Reversed.