People v. Davis , 74 Mich. App. 624 ( 1977 )

74 Mich. App. 624 (1977) 254 N.W.2d 335

PEOPLE
v.
DAVIS

Docket No. 29057.

Michigan Court of Appeals.

Decided March 31, 1977.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief Appellate Counsel, and James L. McCarthy, Assistant Appellate Counsel, for the people.

Myron F. Poe, for defendant.

Before: D.E. HOLBROOK, P.J., and R.B. BURNS and M.F. CAVANAGH, JJ.

M.F. CAVANAGH, J.

On May 3, 1976, defendant Paul Willis Davis, Jr., pled guilty to the offense of receiving and concealing stolen property of value in excess of $100, MCLA 750.535; MSA 28.803. In return for defendant's plea, the prosecutor recommended a sentence of 30 days in the county jail, to be served on weekends. Both the record of the plea-taking procedure and the plea form signed by the defendant explicitly show that the prosecutor's consideration was merely a recommendation. The trial judge expressly stated that he was not bound by the prosecutor's recommendation. Upon review of the pre-sentence report, the trial court decided that the prosecutor's recommendation was inappropriate, and sentenced the defendant to a three to five year prison term. Defendant appeals of right from trial court denial of his post-sentence motion for withdrawal of plea.

Defendant asserts on appeal that prior to his plea he was misled to believe that he would be sentenced to the prosecutor's recommendation; since his sentence in fact greatly exceeded that recommendation, his plea bargain went unfulfilled. While we can understand that defendant may have been surprised at the disparity between the recommendation and the actual sentence, defendant has nowhere established on the record that he was in fact misled. Indeed, the opposite appears to be the case. Defendant correctly argues that the courts will not allow a plea bargain to go unfulfilled, People v Hall, 399 Mich. 288; 249 NW2d 62 (1976), People v Brooks, 396 Mich. 118; 240 NW2d 1 (1976), In re Valle, 364 Mich. 471; 110 NW2d 673 (1961). It is equally clear that a factual record must support speculative allegations that a promise remains unfulfilled. People v Hall, supra. There is no such record here.

Nor can we discern any support in the record for defendant's allegation that the prosecutor withdrew his sentence recommendation prior to sentencing. The trial court did not err in refusing to allow withdrawal of the plea.

Affirmed.

R.B. BURNS, J., concurred.

D.E. HOLBROOK, P.J. (dissenting).

This writer would agree with the majority opinion that defendant was fully advised that the prosecutor only made a sentence recommendation and that the trial court was free to impose whatever sentence the court felt proper. Defendant has no basis on which to challenge the court's imposition of a harsher sentence than he expected merely because the trial court did not follow the sentence recommendation. However, there is sufficient support for the allegation that the prosecution may have withdrawn such recommendation so as to justify remand to determine if the recommendation was, in fact, withdrawn.

Defendant alleges that the prosecution withdrew its recommendation in chambers just prior to sentencing because the prosecution learned that defendant was charged with committing a similar crime in a neighboring county. Were this allegation not supported by the record, however, this writer would affirm. During the hearing on the motion to withdraw, however, the prosecution made the following statement:

"The People would like to respond, your Honor. At all times I'd like Defense Counsel to acknowledge our recommendation was just that, a recommendation to the Court. It was predicated on the information contained in the file as well as the information imparted by Defense Counsel. Nowhere at no time were we made aware of the situation involving the same Defendant in Washtenaw County which came to the eyes of the Court and which the Court considered and the Defendant was, in effect, given the same chance the Oakland County Prosecutor's office was about to recommend by way of recommendation only, making it abundantly clear on the record that the recommendation was not binding on the Court." (Emphasis added.)

The record does support the allegation that the prosecution may have withdrawn its recommendation prior to sentencing and demands a hearing to determine if the recommendation was in fact formally or informally withdrawn prior to sentencing. Such hearing should be held before a different judge. If the recommendation was withdrawn, then the bargain was broken and defendant is entitled to withdraw his plea and stand trial on the charge. In re Valle, 364 Mich. 471; 110 NW2d 673 (1961). However, if the recommendation was not in fact withdrawn, defendant's plea conviction should stand.

This writer so votes.