People v. Shovan

F. X. O’Brien, J.

On March 12, 1980, defendant was convicted by a jury of larceny from a motor vehicle. MCL 750.356a; MSA 28.588(1). On March 26, 1980, defendant appeared for preliminary examination on the charge of attempted breaking and entering of an occupied dwelling. MCL 750.92, 750.110; MSA 28.287, 28.305. At that time, the defendant waived examination in order to plead guilty to the attempted breaking and entering charge. A plea agreement was placed on the record *440which included the following two-part sentence recommendation to be made by the prosecutor:

"Also part of that agreement is that we are recommending one year in the county jail on the larceny from the motor vehicle.
"If the court follows our recommendation of one year, we will be free to recommend whatever we want concerning the attempted breaking and entering.
"If the court does not follow our recommendation, we will recommend that the second sentence, that sentence being the sentence coming from this attempted breaking and entering, would be served concurrently with the larceny from a motor vehicle sentence.”

Two days later, defendant was arraigned on the attempted breaking and entering charge and pleaded guilty. He was sentenced for both convictions on April 25, 1980, and received from two to five years for larceny from a motor vehicle and from two to five years for attempted breaking and entering. The latter sentence was to be served consecutively. Defendant appeals his plea-based conviction.

This appeal raises a single issue: whether the defendant should have been given the opportunity to withdraw his plea of guilty when the trial court did not follow the prosecutor’s sentence recommendation.

The issue has created two distinct viewpoints. The first requires that the matter be remanded and the defendant afforded the right to withdraw or affirm his plea when an opportunity to withdraw the plea is not provided prior to sentencing. People v Briggs, 94 Mich App 723; 290 NW2d 66 (1980), lv gtd 408 Mich 958 (1980), People v Newsum, 105 Mich App 755; 307 NW2d 412 (1981), *441People v Schirle, 105 Mich App 381; 306 NW2d 520 (1981), People v Bahlhorn, 105 Mich App 118; 306 NW2d 416 (1981), People v Black, 103 Mich App 109; 302 NW2d 612 (1981). The second requires that the conviction be affirmed where the record reveals that the defendant was advised and understood that the trial court was not bound by the prosecutor’s recommendation. People v Lee Johnson, 105 Mich App 614; 307 NW2d 385 (1981), People v King, 104 Mich App 459; 304 NW2d 605 (1981), People v Yates, 99 Mich App 396; 297 NW2d 680 (1980), People v Armstrong, 99 Mich App 137; 297 NW2d 637 (1980). On the facts of this case, we elect to follow the latter authorities and affirm the defendant’s plea-based conviction.

The plea agreement is somewhat elaborate. It contains alternate recommendations regarding sentencing. These terms were placed on the record three times, once when the defendant waived examination and twice during the course of the plea-taking procedure.

At the outset of the plea-taking procedure, the prosecutor stated the agreement in full. The court then inquired of the defendant, "Could you tell me the plea agreement as you understand it.” Defendant’s initial recollection extended only to the prosecutor’s promise to drop the supplemental information on the larceny conviction. After consultation with counsel, he also recalled the prosecutor’s promise "to recommend one year in the county jail”. At the trial court’s request, defense counsel and the prosecutor recited the balance of the terms of the agreement. The defendant then acknowledged that this was the agreement as he understood it and that he had not been promised anything beyond the agreement. At the conclusion of the plea, the trial court stated:

*442"Let the record reflect that the court has not agreed upon the possibility of a plea or the possible sentence with the prosecutor, the defendant, or anyone acting in the interests of either.”

Immediately thereafter, the court accepted the defendant’s plea and set the matter for sentencing.

On the day of sentencing, the prosecutor’s opening remarks included the following:

"The people have, pursuant to the plea bargain, recommended that this court sentence Mr. Shovan to a term of one year in the county jail in the matter involving the larceny from a motor vehicle, and the people, after that time, when it appeared that that would not be the sentence, did recommend to this court that the terms be served concurrently.”

It is the frequent recitation and confirmation of the terms of the agreement, GCR 1963, 785.7(2)(b), the court’s conscientious questioning of the defendant, GCR 1963, 785.7(1)-(3), and the court’s clear disavowal of any obligation to accept the sentence recommendation, GCR 1963, 785.7(4)(b), that leads us to conclude that the defendant was not misled. Defendant’s plea was voluntarily and knowingly made. Indeed, we are left with the impression that the defendant simply does not like the sentence he received.

Affirmed.

R. M. Maher, J., concurred.