People v. Strickland , 78 Mich. App. 40 ( 1977 )

Allen, J.

This appeal* ¹ requires that we either extend or limit the following holding in People v McMiller, 389 Mich 425, 434; 208 NW2d 451 (1973).

"[W]e hold that upon the acceptance of a plea of guilty, as a matter of policy, the state may not thereafter charge a higher offense arising out of the same transaction.”

The precise question presented is this: Where a defendant charged with two armed robberies pleads guilty in one case in return for dismissal of the other, may the prosecutor later reinstate both charges if the defendant successfully appeals his plea-based conviction?

The present case is factually distinguishable from McMiller in two respects. First, the two charges in this case did not arise from the "same transaction”. Second, the prosecutor did not charge a "higher” offense; rather, he charged two offenses of equal rank where the defendant had previously been convicted of only one. While the facts are distinguishable, the defendant points out that the policy considerations underlying McMiller are also present in this case.

"Allowing trial on a higher charge following reversal of a plea-based conviction of a lesser offense would (1) discourage exercise of the defendant’s right to appeal a conviction claimed to be based on an improperly accepted plea, and (2) tend to insulate from appellate scrutiny non-compliance with the guilty plea procedure established by the statute and the court rule.” 389 Mich at 432.

For the reasons outlined later in this opinion (Section I), we hold that McMiller does not require reversal of the defendant’s conviction. We also reject two other less meritorious arguments raised by the defendant (Sections II and III).

Facts

On February 24, 1973, a lone gunman robbed the Martinez Grocery in Saginaw. One week later, Scott’s Auto Sales in Saginaw was similarly victimized. The defendant was arrested and charged in the Scott’s case and immediately became a suspect in the Martinez case.² While he was in custody on the Scott’s charge, he confessed to committing the Martinez robbery.

Following negotiations, the defendant pleaded guilty to armed robbery in the Scott’s case on April 16, 1973. That plea was taken by Saginaw County Circuit Judge Eugene Snow Huff who later imposed a 5-15 year sentence. The prosecutor then dismissed the charges in the Martinez case (this case) as required by the plea bargain.

The plea-based conviction in the Scott’s case was appealed to another panel of this Court. The conviction was reversed and remanded in an unpublished opinion dated January 2, 1975, because Judge Huff had failed to give all of the warnings required by GCR 1963, 785.7. On remand, the prosecutor renewed the armed robbery charge in the Scott’s case³ and filed a new complaint charging armed robbery in the previously dismissed Martinez case.

The Scott’s case was set for trial before Judge Huff on September 16, 1975. The defendant appeared with his attorney and once again pled guilty. The prosecutor emphasized — and the defendant and his attorney acknowledged — that the original plea bargain was no longer being offered to the defendant. The prosecutor clearly stated his intention to proceed with the Martinez case even if the defendant pled guilty in the Scott’s case. After accepting the plea, Judge Huff again sentenced the defendant to 5-15 years in prison. That conviction has not been appealed.

The Martinez case was set for a jury trial before Judge Armstrong on February 3, 1976. A Walker⁴ hearing was held before the trial started in order to determine the voluntariness of the defendant’s confession. The defendant testified that a Detective Washington had promised that he would not be prosecuted for the Martinez robbery if he confessed. But Washington denied making any promises. The judge accepted Washington’s version of the events and ruled that the confession was voluntary and admissible.

The defendant then asked the judge to exercise his discretionary power to prevent the prosecutor from impeaching the defendant with evidence of two prior felony convictions. MCLA 600.2159; MSA 27A.2159, People v Jackson, 391 Mich 323; 217 NW2d 22 (1974). The judge recognized that he had the power to do that, but denied the motion.⁵

The trial began immediately following the rulings on the preliminary motions. After the prosecution had rested, defense counsel asked the judge to rule on whether the defense could introduce evidence of the original plea bargain in the Scott’s case. The defense theory was that proving the original bargain would support the defendant’s testimony that his confession had been induced by Detective Washington’s promise that the Martinez case would not be prosecuted. The judge ruled that evidence of the Scott’s case plea and plea bargain was not admissible. He stated that the defendant could testify about the circumstances surrounding the confession — including the alleged promises by Washington — but that evidence of the later plea negotiations in the Scott’s case was irrelevant.

The defendant then announced that, because of the adverse rulings on his various motions, he had decided not to testify. The defense rested without presenting any witnesses.

The jury found the defendant guilty of armed robbery as charged. Judge Armstrong sentenced the defendant to a 10-15 year term to be served .concurrently with the 5-15 year sentence in the Scott’s case. The irony is that, as a result of his "successful” appeal from his original plea conviction in the Scott’s case, the defendant now has two convictions and a minimum 10-year sentence whereas he previously had only one conviction and a 5-year minimum sentence. This serves to highlight his argument that People v McMiller, supra, should have barred the renewed prosecution in this case.

I. Impact of McMiller

People v McMiller, 389 Mich 425; 208 NW2d 451 (1973), cert den 414 US 1080; 94 S Ct 599; 38 L Ed 2d 486 (1973), had drawn a generally unfavorable response from most of the members of this Court. The underlying feeling has been that it is wrong to allow a defendant to retain all of the benefits of his plea bargain while allowing him to disown the attendant obligations.

McMiller was denied retroactive application in several cases where the second conviction— whether by plea or trial — was obtained before the McMiller decision was released. People v Potts, 55 Mich App 622; 223 NW2d 96 (1974), People v Skowronek, 57 Mich App 110; 226 NW2d 74 (1974), and People v McGreevy, 52 Mich App 52; 216 NW2d 623 (1974). Compare Mikowski v Grand Traverse County Sheriff, 52 Mich App 66; 216 NW2d 603 (1974), but contrast People v Goins, 54 Mich App 456; 221 NW2d 187 (1974).

This Court has repeatedly held that McMiller does not apply in cases where a defendant withdraws his guilty plea — as distinguished from cases where the plea is set aside because of a procedural error. People v Moore, 74 Mich App 195; 253 NW2d 708 (1977), and Moore v 9th District Judge, 69 Mich App 16; 244 NW2d 346 (1976). The Supreme Court initiated this limitation. See People v Millard, 394 Mich 99; 228 NW2d 783 (1975), and People v Lewandowski, 394 Mich 529; 232 NW2d 173 (1975).

The Supreme Court has also restricted the application of McMiller in cases where the prosecutor appeals from the entry of a guilty plea, Genesee Prosecutor v Genesee Circuit Judge, 391 Mich 115; 215 NW2d 145 (1974), or where a defendant successfully appeals from a defective plea proceeding but the prosecutor pointed out the procedural error to the trial judge before the plea was accepted. Guilty Plea Cases, 395 Mich 96; 235 NW2d 132 (1975).

In People v Triplett, 68 Mich App 531; 243 NW2d 665 (1976), this Court held that, while McMiller may prohibit retrial on a higher charge, it does not prohibit imposition of a higher sentence following retrial on the charge to which the initial plea was entered. But cf. North Carolina v Pearce, 395 US 711; 89 S Ct 2072; 23 L Ed 2d 656 (1969).

Even in the cases where McMiller has been strictly followed or extended by analogy, this Court has usually done so reluctantly. See People v Thornton, 70 Mich App 508; 246 NW2d 9 (1976), and People v Hubbard, 57 Mich App 542; 226 NW2d 557 (1975), remanded for reconsideration on other grounds, 395 Mich 801 (1975). But contrast People v Goins, supra.

Finally, we note that other courts, including the United States Supreme Court, would apparently decline to apply a McMiller-type analysis on facts like those in the present case. See Anno.: Enforceability of Plea Agreement, or Plea Entered Pursuant Thereto, with Prosecuting Attorney Involving Immunity from Prosecution for Other Crimes, 43 ALR3d 281, Santobello v New York, 404 US 257; 92 S Ct 495; 30 L Ed 2d 427 (1971), United States v Wells, 430 F2d 225 (CA 9, 1970), and State v Myers, 12 Ariz App 409; 471 P2d 294 (1970). It should be emphasized that all the preceding citations are to cases which, like the present one, involved two or more separate substantive offenses. They are thus distinguishable from McMiller in which the defendant pled guilty to a lesser included offense within the original charge.

Two Michigan decisions deserve special comment because of their close similarity to the present case. In People v Clark, 43 Mich App 476; 204 NW2d 332 (1972), this Court allowed the prosecutor to reinstate separate substantive charges when, an unexpected Supreme Court decision upset the bargained-for plea conviction. Since Clark was decided before McMiller, its validity as precedent is questionable. However, it should also be noticed that Clark was authored by then Judge Levin and it is factually distinguishable from McMiller on the same basis as is the present case. The rationale in the Clark decision was summarized as follows:

"Whether Clark sought to get out of the bargain or was relieved of the bargain is beside the point. He was not required to serve the sentence imposed by the court. We see no reason to hold the prosecutor in such a cáse to his part of the bargain. Clearly, this is a case of mutual mistake concerning a basic underlying assumption; on principle, although this is a mistake of law and not of fact, the people are entitled to be relieved of the consequences of that mistake.” 43 Mich App at 484.

The other decision deserving special mention is People v Goins, supra. This writer concurred in the Goins opinion which was written by Judge T. M. Burns. The defendant in that case was charged with sale of marijuana and carrying a concealed weapon. Pursuant to plea negotiations, a third count charging possession of marijuana was added and the defendant pled guilty to that count and to the carrying a concealed weapon charge. Both pleas were subsequently vacated by the trial court on the basis of Supreme Court decisions. The prosecutor then reinstated the two original charges. On appeal, this Court held that McMiller barred reinstatement of the sale of marijuana charge.

For present purposes, People v Goins, supra, may be distinguished because all of the charges arose out of the "same transaction” and sale of marijuana was a "higher” offense since it then carried a possible life sentence.

"[W]e hold that upon the acceptance of a plea of guilty, as a matter of policy, the state may not thereafter charge a higher offense arising out of the same transaction.” (Emphasis supplied.) People v McMiller, 389 Mich 425, 434; 208 NW2d 451 (1973).

By way of contrast, the charges in the present case arose from separate transactions and were of equal rank. Further, Goins was decided just one year after McMiller when there had been less time to evaluate McMiller’s impact and the validity of its underlying policy assumptions.

Those policy considerations were quoted at the beginning of this opinion. We repeat them here in extended form.

"Allowing trial on a higher charge following reversal of a plea-based conviction of a lesser offense would (1) discourage exercise of the defendant’s right to appeal a conviction claimed to be based on an improperly accepted plea, and (2) tend to insulate from appellate scrutiny non-compliance with the guilty plea procedure established by the statute and the court rule.

"We, the Bench and Bar of Michigan, have invested untold hours of effort in an attempt to devise a rule for the taking of guilty pleas which will fairly and finally dispose of over 75% of our criminal cases. In the latest amendment to our court rule dealing with this subject we have detailed certain steps necessary to the proper taking of a guilty plea and provided that failure to follow the rule will constitute reversible error. We intend thereby to assure the corollary that observance of the rule will result in unassailable conviction.” 389 Mich at 432.

Subsequent experience demonstrated the impossibility of obtaining perfect compliance with desired guilty plea procedures. After an initial attempt at rigidly insisting on strict compliance, the Supreme Court reconsidered and now requires only substantial compliance with most of the requirements of GCR 1963, 785.7 as amended. People v Shekoski, 393 Mich 134; 224 NW2d 656 (1974), and Guilty Plea Cases, supra. The Shekoski spirit and the availability of appointed attorneys for indigents have resulted in a huge number of appeals from guilty plea convictions. The appellants usually argue that their convictions must be reversed because of minor deviations from the court rule procedures, even though there is no real possibility that the imperfection in any way influenced the decision to plead guilty. For the most part, these appeals consume time and resources which could be more profitably devoted to other matters. The frustrations attendant on this situation led one panel of this Court to take the extreme step of holding that there is no appeal as of right from a guilty plea conviction. People v Webb, 75 Mich App 494; 255 NW2d 661 (1977). Whether or not Webb is ultimately approved by the Supreme Court, it calls into question the underlying assumption of McMiller that we should avoid — at all costs — discouraging appeals in guilty plea cases.

In People v Harrison, 386 Mich 269; 191 NW2d 371 (1971), the Supreme Court held that it was reversible error to dismiss one case on condition that the defendant not appeal his conviction in another case. We recognize that there is a fine line between the overt practice condemned in Harrison and allowing an implied threat that other charges will be reinstated if an appeal is successful. People v Clark, supra, dealt with precisely this problem.

"The Supreme Court has chosen, at least in words, to limit its Harrison rule to cases where the 'stated reason’ for the adjournment of the trial is to chill exercise of a defendant’s constitutional right to appeal a criminal conviction. And, even if the rule is not so limited— if it applies as well to cases where it can be demonstrated that, although not 'stated’, pending charges were held over the head of a convicted person in an effort to dissuade him from appealing — it has not been shown on this record that what was done here was done in an effort to chill Clark’s, or any other defendant’s, exercise of his right to appeal.” 43 Mich App at 483.

We believe that that reasoning applies equally in the present case.⁶

For all of the reasons outlined above, we refuse to extend McMiller by holding that it bars reinstatement of the charge in this case. We are free to reach that result because the present case is factually distinguishable in significant respects from the rule announced in McMiller. We choose to reach that result because of serious doubts about the continuing validity of McMiller’s policy foundations.

II. Impeachment With Prior Felony Convictions

The defendant had two prior felony convictions, one for rape and one for armed robbery (the Scott’s conviction). The defendant asked the trial judge to exercise his discretion and prohibit impeachment with evidence of those convictions. The court made the following ruling:

"Well, it’s the opinion of the Court exercising its discretion, that the prosecution may use this to test the credibility of the witness. * * * [S]o until the Supreme Court makes it absolutely mandatory that you can’t use that for credibility it’s the discretion of the Court that you may if you so choose.”

The trial judge obviously recognized his discretion and exercised it. People v Jackson, supra. He also clearly identified the exercise of his discretion as required by the order in People v Cherry, 393 Mich 261; 224 NW2d 286 (1974). He did not specifically enumerate and evaluate the various factors which People v Jackson, supra, borrowed from United States v Gordon, supra. In fact, the tone of the ruling suggests that he would allow impeachment in almost all cases. The defendant argues that these facts demonstrate an abuse of discretion, but we disagree. No Michigan case has yet required a trial judge to evaluate the Gordon consideration on the record. By allowing trial judges discretion in these matters, the Supreme Court must have accepted the fact that some judges would lean to allow impeachment in most cases, whereas others would usually prohibit it. But the matter is discretionary with the trial court. That discretion was exercised in this case. And we find no abuse of that discretion. The defendant’s argument is without merit.

III. Evidence Of The Prior Plea Bargain

The defendant wanted to prove the prior plea bargain in the Scott’s case in order to buttress his proposed testimony that Detective Washington had promised that he would not be prosecuted for the Martinez robbery if he confessed. The theory was that proving that things eventually worked out that way (in the initial plea bargain) would impeach Washington’s testimony that he had made no promises in return for the confession. The trial judge ruled that he would allow the defendant to testify about what happened during the interview with Washington but he would not allow testimony about the later plea bargain in the Scott’s case. He felt that evidence of what happened in the Scott’s case was not relevant to this prosecution for the Martinez robbery.

Evidence of prior guilty pleas is not admissible against a defendant. People v George, 69 Mich App 403; 245 NW2d 65 (1976), but that rule would not have prohibited presentation of testimony in the present case where it was the defendant who sought to introduce the evidence.

But determinations of whether or not evidence is relevant rest within the discretion of the trial court, and the court’s determination will not be upset on appeal unless a clear abuse of discretion has occurred. People v Rimson, 63 Mich App 1; 233 NW2d 867 (1975), and People v Hodo, 51 Mich App 628; 215 NW2d 733 (1974). We find no abuse of discretion in this case.

Conclusion

The conviction and sentence are affirmed.

D. R. Freeman, J., concurred.

1 The defendant was convicted of armed robbery, MCLA 750.529; MSA 28.797, by a Saginaw County jury on February 4, 1976. Saginaw County Circuit Judge Hazen R. Armstrong sentenced the defendant to a 10-15 year prison term on February 24, 1976. This is an appeal as of right under GCR 1963, 806.1.

2 The present appeal is from the defendant’s conviction in the Martinez case. This opinion refers to the two cases as "the Martinez case” and "the Scott’s case”.

3 McMiller did not affect the Scott’s case because the defendant had pleaded guilty to the original charge, not a reduced charge.

4 People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965).

5 People v Jackson, supra, lists several factors which the judge should consider when making this discretionary ruling. One factor is "whether it [the prior conviction] is for substantially the same conduct for which the accused is on trial”. 391 Mich at 333. The prosecutor in this case argued that the prior crimes were similar and that impeachment should therefore be allowed.

Jackson was based on the opinion by then Judge Burger in Gordon v United States, 127 US App DC 343; 383 F2d 936 (1967). That opinion clearly states that similarity of the prior offense weighs against impeachment, not for it. This is because the improper prejudicial impact of a similar offense is considered to be greater.

There is no indication that the trial judge in the present case shared the prosecutor’s misapprehension of this rather subtle point.

6 The prosecutor’s brief states that the defendant was offered the original plea bargain immediately following his successful appeal in the Scott’s case. The prosecutor states that the defendant rejected the deal, thus forcing the prosecutor to prepare for trial. When the offer was rejected, the offer was withdrawn. The second plea in the Scott’s case was entered on the day set for trial. At that time, the prosecutor clearly stated that the bargain was no longer available.