People v. Clark

M. F. Cavanagh, J.

(dissenting). Defendant appeals by leave granted from the refusal of the trial judge to grant defendant’s motion to withdraw his guilty pleas to four charges of breaking and entering an occupied dwelling with intent to commit a larceny. MCLA 750.110; MSA 28.305. Just prior to sentencing, he asked that the pleas be set aside, but this request was denied and defendant was sentenced to concurrent terms of 9 to 15 years in prison.

At each proceeding, defendant was advised of all his rights pursuant to GCR 1963, 785.7(1), and a factual basis was elicited for each crime. At each proceeding, all the parties acknowledged that the *758terms of the agreement were that two bonds would be reduced to personal bonds, a third bond would be $1,000 cash or surety, and the remaining bond would be $500 cash or surety. Upon inquiries by the trial judge, the defendant stated each time that no other promises had been made except those stated on the record.

However, at the sentencing proceeding, defendant stated that he wished to withdraw his pleas and wanted a jury trial. He alleged that there had been an agreement with the FBI to the effect that he would cooperate with them and they would get his bond reduced and advise the judge of his cooperation. While defendant’s statements suggest that he may not have fulfilled his part of this newly disclosed bargain, the prosecutor himself acknowledged that there was more to the agreement than the reduction of bond. He admitted that there was some understanding that if defendant helped the police, the FBI "would check on behalf of him * * * ”. However, he did not know what had happened. The trial judge denied defendant’s motion.

While, there is no absolute right to withdraw a guilty plea, the trial judge’s discretion "should be exercised with great liberality * * * ” when the defendant is seeking to withdraw such a plea prior to sentencing, and should be granted unless the grounds therefor are frivolous. People v Zaleski, 375 Mich 71, 79; 133 NW2d 175 (1965). While a single affidavit on defendant’s behalf will not cause this Court to remand for an evidentiary hearing or reverse a guilty plea, People v Rodriguez, 61 Mich App 42, 47-49; 232 NW2d 293 (1975), where the record indicates that the plea may be infirm because of unfulfilled or unstated promises to defendant, we should remand for an evidentiary hearing. *759See People v Christian, 68 Mich App 480; 242 NW2d 813 (1976).

In this case, defendant has not only submitted a detailed affidavit (to the effect that the FBI sought his cooperation in apprehending some drug dealers, promised to aid in sentencing, and received his cooperation), but brought his contentions to the attention of the sentencing judge. The prosecutor himself acknowledged that the FBI was involved. The record indicates that there may very well have been a violation of GCR 1963, 785.7(2), which requires that all plea bargain agreements be stated on the record and acknowledged by all the parties. I would remand for a hearing in order to set the whole plea agreement on the record. Guilty Plea Cases, 395 Mich 96, 127; 235 NW2d 132 (1975) . See also People v Thomas, 66 Mich App 594; 239 NW2d 427 (1976), lv den, 396 Mich 866 (1976) . That defendant may not have cooperated with the FBI in this case (as the prosecutor contends) does not alter the fact that the precise terms of the agreement must be discovered. See People v Strong, 59 Mich App 159, 162; 229 NW2d 354 (1975). If, after the hearing, the judge determines that defendant did not keep his part of the bargain, the convictions may be affirmed. If, however, the judge determines that defendant did cooperate but the law enforcement officials reneged on their promise to advise the court of defendant’s cooperation, then the judge should permit defendant to withdraw his pleas of guilty. Guilty Plea Cases, supra.