People v. Lance

M. J. Kelly, P.J.

(concurring). I concur in the result reached by Judge Bronson. I write only to express some discomfiture with the extent to which the trial court participated in the plea-bargaining scenario here. Defendant’s appellate brief states:

"Lance was given the message loud and clear by the person from whom the sentence would come that a plea *340would result in 10 to 20, but if the trial continued, any number of years up to life was a clear possibility.”

If that were the case, then the promise-threat scenario referred to in People v Earegood, 12 Mich App 256; 162 NW2d 802 (1968), rev’d on other grounds 383 Mich 82; 173 NW2d 205 (1970), would become ostensible precedent for reversal.

Since Earegood, supra, this Court has continued to express its disapproval of the trial court’s indiscriminate participation in the plea-bargaining process. People v Dixon, 103 Mich App 518, 524; 303 NW2d 32 (1981), People v Mathis, 92 Mich App 670, 674-675; 285 NW2d 414 (1979), People v Bennett, 84 Mich App 408, 413; 269 NW2d 618 (1978), lv den 405 Mich 835 (1979). In Mathis, supra, 674-675, this Court wrote:

"This case presents a good example of difficulties which can arise when a trial judge actively participates in the plea bargaining process. We have said in dicta that trial courts should not actively participate in plea bargaining negotiations. People v Bennett, 84 Mich App 408; 269 NW2d 618 (1978), lv den 405 Mich 835 (1979). We are well aware that in an overburdened high-crime population center trial courts are disposed to accept plea bargains involving favorable sentence considerations to defendants in advance of trial. Our concern is with the extent of the trial judge’s participation in such negotiations. This Court favors a nonparticipatory, passive approach to the plea bargaining process on the part of the trial bench. The trial judge should be called upon in open court to approve the plea bargain reached by the adversaries, but should not be the instigator of, nor the conduit for, negotiations. A defendant’s right to trial is sacrosanct and his judge must be, and appear to be, impartial.”

Either the active participation in plea bargaining is poor judicial practice or it is not. I think it is *341poor practice. I think a sentence offer made by a trial judge at a pretrial conference in exchange for defendant’s plea of guilty is coercive and should be discouraged. It carries an implied threat that, if he does not plead and is later found guilty, he will receive a harsher sentence. In cases where such a practice is supported by the record, I think reversal is required. Until the Supreme Court speaks to this issue, I think that trial judges would be well advised to follow Mathis, supra, and Bennett, supra.

In the case at bar, it is not clear that such a threat was made by implication or otherwise. This case was assigned to the trial court because three cases arising out of the same facts were handled by the same judge. It should be noted that the crime for which this defendant was convicted involved the kidnapping of a victim and then transporting her into a motorcycle club where some 14 or 15 hooligans participated in criminal sexual misconduct on the victim. How many cases were actually tried or pleas taken arising out of that misconduct before this case neither the record nor the briefs reveal. We do know that five co-defendants were sentenced, but that is all that is supported by the record.

Prior to trial, a pretrial conference was held but no pretrial summary is contained in the file. However, an unsigned handwritten note does appear stating, "no offers — will go to trial — prosecutor will furnish conviction records of nonpolice witnesses”. During the plea proceedings, the trial judge mentioned a trial of a number of co-defendants. He stated that three co-defendants were sentenced to life while two received 10- to 20-year sentences. It is not clear from the transcript whether the two co-defendants who were sentenced to lesser terms *342had pled guilty. If this were the case, it could be seen as a threat that, if defendant continued with his trial, the judge would sentence him to life if he were found guilty. This would be unacceptable intrusive participation in the plea-bargaining process by the trial judge. However, because the record reflects no such scenario and no motion to set aside the plea on such grounds was made, I concur in the affirmance of defendant’s conviction.