Opinion
Docket No. 77-2013.
Decided July 6, 1978.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Andrea L. Solak, Assistant Prosecuting Attorney, for the people. Bruce R. Saperstein, for defendant on appeal.
Before: M.F. CAVANAGH, P.J., and BRONSON and D.F. WALSH, JJ.
The primary issue in this guilty-plea appeal is whether a plea may be set aside before sentencing on the prosecutor's motion on the basis that defense counsel concealed material facts during plea bargaining.
Defendant originally pled guilty to attempted breaking and entering an occupied dwelling with intent to commit larceny on June 28, 1976, pursuant to a plea bargain.
In return for the plea, the prosecutor agreed not to proceed under the habitual offender act, MCL 769.10- 769.13; MSA 28.1082-28.1085.
On July 6, 1976, before sentencing, the prosecutor moved to set aside this plea on two bases: (1) in his plea, defendant stated that he did not know it was an occupied dwelling, and (2) the prosecutor was not made aware of defendant's extensive record for breaking and entering. The trial court granted the motion on both bases.
Subsequently, defendant pled guilty to breaking and entering an occupied dwelling with intent to commit larceny, MCL 750.110; MSA 28.305. He moved on the sentencing date to withdraw the plea, but that motion was denied. He now appeals of right.
Defendant first contends that the trial court erred in setting aside his original plea to attempted breaking and entering. The trial court's first reason for setting aside the plea was insufficient. It is not an element of MCL 750.110; MSA 28.305 that defendant know the building he entered was an occupied dwelling house.
See, e.g., People v Benevides, 71 Mich. App. 168, 171-172; 247 N.W.2d 341 (1976), holding that the elements of breaking and entering an occupied dwelling are: (1) a breaking and entering, (2) of an occupied dwelling, (3) with felonious intent.
The statute reads in part:
"Any person who breaks and enters any occupied dwelling house, with intent to commit any felony or larceny therein, shall be guilty of a felony punishable by imprisonment in the state prison for not more than 15 years. For the purpose of this section `any occupied dwelling house' includes one that does not require the physical presence of an occupant at the time of the breaking and entering but one which is habitually used as a place of abode." MCL 750.110; MSA 28.305.
However, we hold that the trial court's second reason was sufficient to justify setting aside the plea.
As a general rule, even unwise plea bargains are binding on the prosecutor. Santobello v New York, 404 U.S. 257; 92 S Ct 495; 30 L Ed 2d 427 (1971), People v Reagan, 395 Mich. 306; 235 N.W.2d 581 (1975). However, People v Reagan, supra, indicates that there may be situations in which a plea agreement may be held not to bind the prosecutor:
"We are not confronted with the situation where the prosecutor is misled by force of defendant's connivance into a disadvantageous agreement or where facts not within the fair contemplation of agreement have come to light." People v Reagan, supra, at 318.
GCR 1963, 785.7(6) does not state when a plea may be withdrawn on the prosecutor's motion.
See State v Lord, 109 N.J. Super. 80; 262 A.2d 244 (1970).
In the case at bar, the lower court found that defense counsel had concealed material information during plea bargaining. There was evidence to support this finding. On these facts, the trial court did not abuse its discretion in setting aside defendant's first guilty plea.
Defendant told the court that he had informed his attorney of his record. It is undisputed that the prosecutor was not informed of it.
Defendant next contends that the trial court abused its discretion in not allowing him to withdraw his second guilty plea on the date of sentencing. At sentencing, defendant stated that he wanted to withdraw his guilty plea, but offered no reason for wanting to withdraw it. The trial court denied his motion, stating that it had reviewed the plea and found it knowingly and voluntarily made. We hold that the trial court did not abuse its discretion. People v Stewart, 23 Mich. App. 589; 179 N.W.2d 193 (1970). See People v Zaleski, 375 Mich. 71; 133 N.W.2d 175 (1965).
The record supports this finding.
Defendant also challenges his second guilty plea on the basis that the trial court failed to inform him of the possibility of consecutive sentences. This, however, is not required. People v Bennett, 76 Mich. App. 264; 256 N.W.2d 459 (1977), People v Larkins, 59 Mich. App. 199; 229 N.W.2d 378 (1975).
Finally, we hold that defendant was not prejudiced by the substitution of one attorney from the Detroit Defender's Office by another from the same office at sentencing. Defendant fails to even allege prejudice from that substitution. See People v Edwards, 18 Mich. App. 526; 171 N.W.2d 592 (1969).
Affirmed.