PEOPLE
v.
HENDERSON
Docket No. 73772.
Michigan Court of Appeals.
Decided August 19, 1985.Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Conrad Sindt, Prosecuting Attorney, and Wendelyn M. Harris, Assistant Prosecuting Attorney, for the people.
State Appellate Defender (by Sheila N. Robertson), for defendant on appeal.
Before: SHEPHERD, P.J., and R.M. MAHER and W.R. PETERSON,[*] JJ.
SHEPHERD, P.J.
Defendant pled guilty to attempted uttering and publishing, MCL 750.249; MSA 28.446; MCL 750.92; MSA 28.287, in exchange for dismissal of the original charge of uttering and publishing and the prosecutor's recommendation that defendant be sentenced to no more than one year in the county jail. Subsequently, defendant was sentenced to two years' probation, conditioned on defendant's serving nine months in the county jail.
Defendant later moved to withdraw his plea on the basis that the trial court had not followed the sentence recommendation. The trial court denied the motion but offered to eliminate probation and give defendant a sentence of one year in the county jail. Defense counsel responded that he believed that the court had lost jurisdiction to amend the sentence in the case.
Still later, defendant again moved to withdraw *803 his plea, alleging that he was under the influence of drugs at the guilty plea hearing. Defendant argued that the drugs prevented him from understanding the nature of the proceedings. The trial court denied the motion.
On appeal, defendant renews his argument that he was under the influence of drugs and could not understand or recall the proceedings at the plea hearing. We disagree. Although defendant presented some expert testimony indicating that a drugged individual may appear capable of knowingly pleading guilty when he is actually confused, the transcript of the plea hearing is strong evidence in support of the trial court's decision on this issue. We find no abuse of discretion. People v Matheson. 70 Mich. App. 172, 176-177; 245 NW2d 551 (1976). We are not persuaded by defendant's argument that the plea was involuntary due to his alleged consumption of drugs beforehand.
Next, defendant argues that he should have been given an opportunity to withdraw the plea when the trial court failed to withdraw the prosecutor's sentence recommendation. People v Killebrew, 416 Mich. 189; 330 NW2d 834 (1982). We agree with defendant to the extent that when he pled guilty he did not know that he would receive a probationary term longer than one year and, therefore, was not "fully aware of all the consequences of his guilty plea". 416 Mich. 210. However, at the hearing on defendant's motion, the trial court indicated a willingness to amend the probation order to reflect the prosecutor's sentence recommendation.
We believe the trial court had jurisdiction to correct its own error by resentencing defendant in conformity with the prosecutor's sentence recommendation. The trial court attempted to do so, but defendant declined the court's offer and continues *804 to decline the offer on appeal.[1] If defendant had accepted the offer, there would have been no violation of the Supreme Court's holding in Killebrew, supra. The plea did not simply disappear, like a bursting bubble, when the trial court deviated initially from the prosecutor's recommendation.
In Killebrew, supra, p 210, fn 10, the Supreme Court observed that the defendant may choose to affirm his guilty plea even if the court refuses to be bound by the prosecutor's recommendation, in which case "the right to withdraw his plea lapses". We conclude the same is true when defendant refuses an offer by the court to conform the sentence to the prosecutor's recommendation. In this case, defendant's refusal to accept the court's offer and his insistence that only by vacating the plea altogether could the court cure its error constitutes a waiver of the issue.
Affirmed.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
[1] This is understandable, given the impending expiration of the two-year probationary period.