PEOPLE
v.
ERIC THOMPSON
Docket No. 47202.
Michigan Court of Appeals.
Decided November 5, 1980.Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, David H. Sawyer, Prosecuting Attorney, and Carol S. Irons, Chief Appellate Attorney, for the people.
George S. Buth, for defendant on appeal.
Before: R.B. BURNS, P.J., and T.M. BURNS and D.E. HOLBROOK, JR., JJ.
PER CURIAM.
Defendant pled guilty to the offense of unarmed robbery, MCL 750.530; MSA 28.798. As a part of the plea agreement, the prosecutor agreed not to file a supplemental information charging defendant as an habitual offender.
On appeal, defendant claims that the bargain for his plea was an illusion because the people did not file a supplemental information at the same time that the original information was filed. He contends that under People v Fountain, 407 Mich 96; 282 NW2d 168 (1979), the people were foreclosed from filing a supplemental information and that, therefore, he did not receive any benefit from his plea bargain.
The facts in this case indicate that the defendant was originally charged with armed robbery, MCL 750.529; MSA 28.797. In addition to the agreement that the prosecutor would not charge defendant as an habitual offender, the plea bargain in this case consisted of the following agreements: The original information was amended to unarmed robbery, to which charge the defendant *430 pled guilty; another armed robbery offense was amended to unarmed robbery and dismissed; and a charge of possession of marijuana was dismissed.
In our opinion defendant's bargain was no illusion. Defendant may not have received as many benefits as he thought he would be receiving for his plea, but he did receive many benefits for the plea.
Affirmed.
T.M. BURNS, J. (dissenting).
I dissent. It is clear that under the holding of the Michigan Supreme Court in People v Fountain, 407 Mich 96; 282 NW2d 168 (1979), a supplemental information charging the defendant as a habitual offender could not have been filed under the facts of this case. It may be true that defendant's plea of guilty to the instant offense of unarmed robbery was induced by other offers of the prosecutor and not by the prosecutor's promise not to supplement him. However, we are in no position to hold this absent an evidentiary record on this matter. Therefore, I would remand for a hearing on the question of whether defendant's decision to plead guilty in this case was substantially based on the promise of the prosecutor not to charge him as an habitual offender. If it was, defendant's plea should be vacated. Of course, if defendant's plea was in no way substantially affected by the promise to forego charging him as an habitual offender, his plea should be affirmed. Nonetheless, until such an evidentiary record is before this Court, I would hold that we can not properly affirm defendant's plea without speculating as to his motives in tendering it.
I would remand for a hearing on this issue.