Opinion
Docket No. 61266.
Decided March 22, 1983.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Deputy Chief, Civil and Appeals, and Carolyn Schmidt, for the people.
State Appellate Defender (by Peter Jon Van Hoek), for defendant on appeal.
Before: R.M. MAHER, P.J., and N.J. KAUFMAN and WAHLS, JJ.
Defendant pled guilty to two counts of first-degree criminal sexual conduct, MCL 750.520b(1)(a); MSA 28.788(2)(1)(a), and was sentenced to concurrent terms of 10 to 15 years in prison. He appeals as of right.
The information charged defendant with six counts of criminal sexual conduct in the first degree. The plea bargain was to the effect that in exchange for a plea of guilty on two of the counts, the remaining four would be dropped and defendant would receive two concurrent terms of 10 to 15 years. Defendant argues that this bargain was illusory because he could have been convicted of only three counts of first-degree criminal sexual conduct.
Although charging defendant with six counts of first-degree criminal sexual conduct, the information alleged only three acts of sexual penetration. In People v Johnson, 406 Mich. 320; 279 N.W.2d 534 (1979), our Supreme Court held that the criminal sexual conduct statute permitted only one conviction for each act of sexual penetration. Consequently, defendant could have been convicted of three — not six — counts of first-degree criminal sexual conduct.
A plea of guilty must be made voluntarily and intelligently. Guilty Plea Cases, 395 Mich. 96; 235 N.W.2d 132 (1975); People v Cohens, 111 Mich. App. 788; 314 N.W.2d 756 (1981). A plea is involuntary unless the defendant knows the direct consequences of his plea, including the actual value of any commitments made to him. People v Cohens, supra, p 794; People v Peete, 102 Mich. App. 34, 37; 301 N.W.2d 53 (1980); People v Huizar, 89 Mich. App. 224, 226; 280 N.W.2d 494 (1979); People v Lawson, 75 Mich. App. 726, 730; 255 N.W.2d 748 (1977). See, also, Hammond v United States, 528 F.2d 15, 19 (CA 4, 1975). Here, the defendant believed that he faced six convictions for first-degree criminal sexual conduct, instead of three. Thus, he was under a misapprehension as to the actual value of the prosecutor's commitment to drop four charges. In fact, the value was only a fraction of what the prosecutor made it out to be. However, as the court stated in Hammond,
"[not] every item of misinformation which counsel may impart vitiates the voluntariness of a plea. Each case must depend largely on its own facts." 528 F.2d 18.
See, also, People v James, 90 Mich. App. 424, 427; 282 N.W.2d 344 (1979).
The people argue that under People v Peete, supra, defendant's plea is not rendered illusory simply because defendant did not know the actual number of convictions he faced. In Peete, the defendant's six-count information charged him with four counts of first-degree criminal sexual conduct. Defendant pled guilty to two of the counts of first-degree criminal sexual conduct and to the two counts of unarmed robbery and breaking and entering with intent to commit larceny, partly in exchange for dropping the other two sexual conduct charges. However, the defendant could have been convicted of only two of the four sex offenses because the information alleged only two acts of sexual penetration. This Court held that this alone did not render the plea bargain illusory.
Peete, however, is distinguishable. That case involved a plea bargain incorporating five considerations, one of which was the prosecutor's promise to dismiss two first-degree criminal sexual conduct counts. People v Peete, supra, p 37. In the instant case, defendant's plea bargain contained only two considerations: concurrent 10- to 15-year sentences and dismissal of four counts. Thus, the dismissal of the counts played a far more prominent role in Taylor's plea bargain than in Peete's. Moreover, that aspect of the bargain was represented to be four times its actual worth: the defendant was led to believe that he was avoiding four convictions instead of one. We do not wish to speculate as to whether defendant, informed correctly, would have pled innocent or exacted further concessions from the prosecution. Nevertheless, in a case like this, where the value of one of two benefits offered by the prosecution was grossly exaggerated, these options remain distinct possibilities. We hold, therefore, that under the facts of this case, defendant's guilty plea was not intelligent and voluntary.
Defendant also contends that the trial court did not establish a factual basis for his plea of guilty on Count V, charging sexual penetration of a person under 13 years old, because he gave exculpatory testimony. The record discloses, however, testimony from which an inculpatory inference could be reasonably drawn. Therefore, a factual basis existed. Guilty Plea Cases, supra, p 130.
Remanded to the lower court to allow the defendant to withdraw his plea.
I respectfully dissent. I would affirm. I believe the defendant received a good bargain. First, he has only two convictions instead of three. Second, he drew a definite 10 to 15 years instead of whatever sentence a judge may have imposed. The defendant was represented by counsel and voluntarily pled guilty. Although I agree People v Peete, 102 Mich. App. 34; 301 N.W.2d 53 (1980), is distinguishable, much of the Court's discussion there supports affirmance.