Opinion
Docket No. 93350.
Decided July 31, 1987.
Frank J. Kelley, Attorney General Louis J. Caruso, Solicitor General, David E. McClernan, Prosecuting Attorney, and Jann Ryan Baugh, Assistant Attorney General, for the people.
State Appellate Defender (by Sheila N. Robertson), for defendant on appeal.
Defendant pled guilty to breaking and entering an unoccupied building, MCL 750.110; MSA 28.305, in exchange for the prosecutor's agreement to recommend a sentence of one year or less to be served in the county jail. At the sentencing hearing, the judge informed defendant that the recommendation would not be followed. Defendant declined to withdraw the guilty plea. Defendant was then sentenced to a prison term of five to ten years. Defendant appeals as of right. We reverse.
In People v Killebrew, 416 Mich. 189, 209-210; 330 N.W.2d 834 (1982), the Court held that the sentencing court's rejection of the prosecutor's nonbinding sentence recommendation (pursuant to the sentence bargain) requires that the defendant be afforded the opportunity to withdraw his plea. In so holding, the Court required adherence to the following procedure: "[T]he trial judge must explain to the defendant that the recommendation was not accepted by the court, and state the sentence that the court finds to be the appropriate disposition." Id., 209. (Emphasis added).
In the instant case, the court's failure to specify defendant's sentence prior to defendant's affirmance of his plea renders the plea deficient.
Reversed and remanded for proceedings consistent with this opinion. Defendant may withdraw his plea.