Opinion
Docket No. 44432.
Decided March 6, 1981.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Timothy L. Cronin, Assistant Prosecuting Attorney, for the people.
Derrick A. Carter, Assistant State Appellate Defender, for defendant on appeal.
Before: DANHOF, C.J., and CYNAR and MacKENZIE, JJ.
AFTER REMAND
The history of this case is documented in this Court's original opinion in this matter, People v Hale, 99 Mich. App. 177; 297 N.W.2d 609 (1980). In remanding this case to the lower court, we directed the trial judge to hold an evidentiary hearing relative to defendant's claim that he was induced to plead guilty on the basis of a police representation that, if defendant cooperated, he would receive a sentence of no greater than two years. The trial judge made the following findings:
" The Court: Well, gentlemen, I'm going to give you a Decision now and carry out the duties given me by the Court of Appeals remand.
"First: I would like to observe that the defendant's claim is not that he is innocent. He has surely admitted his guilt. I say this for only one reason, and that is to make it clear that this case does not fall within the holdings of [the] Appellate Court involving cases in which a defendant seeks to set aside a guilty plea on the ground that he is not guilty.
"Second: I am satisfied from the proofs that no member of the Detroit Police Department, including Sergeant Bullach, ever gave the Defendant any promise or assurance that the Defendant would not get more than two years or any other named sentence. I find from the evidence that no promise of leniency was made to the Defendant by any law enforcement officer as an inducement for a guilty plea. There is disputed testimony in this regard. I find that the testimony of Sergeant Bullach is more credible than the testimony of the Defendant and his girlfriend Jannie Hall.
"Third: However, it appears from the evidence that the Defendant's cooperation with the Detroit Police Department was never made known by The People to this Court. Indeed the Assistant Prosecutor Wouczyna disputed the defendant's claim that he had cooperated with the Detroit Police Department. The letter that was sent by the prosecutor ex parte to the Court did not state that the Defendant had cooperated. Now this ex parte letter recommended a very severe sentence. And incidently, the Court made known to defense counsel the ex parte letter and presented this letter to defense counsel at the first convenient opportunity after the Court had seen the letter.
"The Probation Report contains no mention of the Defendant's cooperation with law enforcement authorities. The officer-in-charge of the case assured the Defendant that he would make known the Defendant's cooperation if asked. In fairness The People should have made known the Defendant's cooperation to the Court prior to sentencing.
"This Court respectively suggests to the Court of Appeals that the Court of Appeals remand the case to this Court for resentencing. This Court has not thought through what effect the Defendant's cooperation will have on any new sentence that might be imposed. Further, this suggestion to the Court of Appeals should not be taken as representation by this Court that if the case is returned to this Court for sentence the court will impose a less severe sentence.
"Gentlemen, you have the Decision.
"Any questions?
"(Whereupon there were no questions presented.)"
We will not overturn the trial court's findings unless they are clearly erroneous. People v Belanger, 73 Mich. App. 438; 252 N.W.2d 472 (1977), GCR 1963, 517.1. Under Belanger and GCR 517.1, we conclude that the trial court's findings were not clearly erroneous and, therefore, decline to disturb them. It follows that the denial of defendant's motion to withdraw his guilty plea was a proper exercise of the lower court's discretion.
However, our further review of the record in this case convinces us that the trial court was also correct in its observation that defendant's cooperation with the police was not made known to the court at the time defendant was originally sentenced. Similarly, we agree with the court below that defendant's sentence should be vacated and this cause remanded to the trial court for resentencing as a matter of due process of law. People v Lauzon, 84 Mich. 201, 208-209; 269 N.W.2d 524 (1978).
Accordingly, defendant's plea-based conviction is affirmed, but the sentence imposed thereon is vacated, and the cause is remanded to the trial court for resentencing. We do not retain jurisdiction.