People v. Kean

Michael J. Kelly, P.J.

Defendant pleaded guilty of armed robbery, MCL 750.529; MSA 28.797, and was sentenced to eight to twenty years’ imprisonment. The trial court denied his motion to withdraw his plea. Defendant now appeals as of right. We affirm.

Defendant’s plea agreement recommended a sentence of five to twenty years. As part of the agreement, defendant promised that "within twenty-four hours from the date of the taking of this plea the Defendant will be in a twenty-four hour in-house drug alcohol residential treatment center or he will report to the Kalamazoo County Sheriffs Department.” The agreement specified that the treatment program would be a "twenty-four hour, seven-day-a-week program wherein the defendant will not be released from the care and custody of those individuals prior to sentencing.”

Defendant did plead guilty, and he did enter a qualifying program within twenty-four hours of his plea. However, a week later he walked away from the program. He did not turn himself in to the sheriff, he did not appear for his presentence investigation interview, and he did not appear at his sentencing. He was finally arrested more than 2Vz years later.

The trial court found that by walking away from *536the treatment program and by not turning himself in, defendant had violated the plea agreement and, consequently, that he was not entitled to the benefit of the bargain. We agree. Although defendant fulfilled the requirement that he enter a qualifying treatment program, the obvious intent of the parties was that he also remain in the program. In fact, the only qualifying programs were those in which defendant would not be released before sentencing.

In People v Killebrew, 416 Mich 189, 209-210; 330 NW2d 834 (1982), our Supreme Court held that when a trial court decides not to follow a sentence recommendation that is part of a plea agreement, it must give the defendant an opportunity to withdraw his plea before imposing the sentence. However, the right to withdraw a plea is not absolute. People v Wilkens, 139 Mich App 778, 785; 362 NW2d 862 (1984). In People v Garvin, 159 Mich App 38; 406 NW2d 469 (1987), this Court held that a defendant implicitly waives his right to withdraw a guilty plea when he escapes from custody. There, as here, the "sentencing recommendation contemplated that no intervening factors would occur between the plea and the sentencing.” Id. at 43. We believe that this case is sufficiently similar to Garvin to uphold the trial court’s denial of defendant’s motion to withdraw his plea.

We decline to decide whether defendant should be allowed to withdraw his plea because the lawyer retained for him allegedly demanded $50,000 to go to trial. Defendant has waived this issue by failing to address it in his appellate brief, People v Kent, 194 Mich App 206, 210; 486 NW2d 110 (1992), and by failing to raise such allegations at the time he offered his guilty plea and stated that he was doing so knowingly, voluntarily, and under*537standingly, see People v Kesl, 167 Mich App 698, 701; 423 NW2d 365 (1988). Furthermore, a failure to address this issue will not result in manifest injustice because defendant was aware of his right to court-appointed counsel.

Defendant next argues that his sentence violates the principle of proportionality set forth in People v Milbourn, 435 Mich 630; 461 NW2d 1 (1990). We find nothing disproportionate in the sentence. Although the minimum term of years imposed exceeds the guidelines’ recommendation of eighteen to sixty months, the guidelines do not take into account defendant’s blatant disregard of the plea agreement and the conditions of bond and his disrespect for the criminal justice system. We also note that defendant already agreed to a minimum sentence of sixty months in the plea agreement, which reflects the maximum recommended in the sentencing guidelines. Three additional years for defendant’s 2V¿ year evasion of criminal proceedings were not inappropriate.

We also reject defendant’s argument that the trial judge should have been disqualified from presiding over the plea and sentencing proceedings on grounds of bias. Defendant contends that the trial court set excessive bond and threatened to prosecute his parents and former employer, who spoke on behalf of defendant at the sentencing. We find no evidence of bias. The $1 million bond set following defendant’s escape and recapture was not inappropriate under the standards set forth in MCR 6.106(F). Although the trial judge may have been strict in applying MCR 6.106(F), a judge’s view of the law, even if strongly held, is not grounds for disqualification. In the Matter of Hirsch, 116 Mich App 233, 242; 323 NW2d 349 (1982), modified on other grounds 413 Mich 943 (1982). Furthermore, the trial court’s comments to *538defendant’s family and employer were merely legitimate and helpful warnings about their Fifth Amendment rights in the face of a criminal investigation of their alleged role in harboring defendant during his 2 Vi. year evasion of criminal proceedings.

Affirmed.

A. A. Monton, J., concurred.