PEOPLE
v.
ECK
Docket No. 10353.
Michigan Court of Appeals.
Decided March 21, 1972.Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Donald A. Burge, Prosecuting Attorney, and Dason V. Slack, Jr., Assistant Prosecuting Attorney, for the people.
Wickett, Erickson, Beach & Burnham, for defendant on appeal.
Before: DANHOF, P.J., and R.B. BURNS and T.M. BURNS, JJ.
DANHOF, J.
The defendant was charged with burning real property. MCLA 750.73; MSA 28.268. He pled guilty to an added count of preparing to burn real property, MCLA 750.77; MSA 28.272. He was sentenced to two to four years in prison and he now appeals. We vacate the sentence and remand for resentencing.
The defendant's plea was offered as a part of a bargain. The defendant gave the police a statement concerning radical activities in the area. This statement was transcribed and a portion of it reads:
"It was agreed on all sides that any statements John made would not be used against him on his pending charge."
After the plea was accepted, a presentence report was compiled. It is admitted that the compiler of the report obtained the statement from the police and his report was in considerable part based on *178 the statement. In passing sentence, the trial court considered that portion of the report that had been derived from the statement.
Plea bargaining is now an accepted practice. However, in cases involving a bargained plea the bargain must be kept. In re Valle, 364 Mich 471 (1961). In this case it is clear that the people did not honor their obligation. Since the statement was given in contemplation of a guilty plea the agreement that it would not be used against the defendant could have reference only to sentencing.
In this case we do not find it necessary to set aside the plea. The United States Supreme Court discussed the proper disposition of this type of case in Santobello v New York, 404 US 257; 92 S Ct 495; 30 L Ed 2d 427 (1971). The court speaking through Mr. Chief Justice Burger stated:
"The ultimate relief to which petitioner is entitled we leave to the discretion of the state court which is in a better position to decide whether the circumstances of this case require only that there be specific performance of the agreement on the plea, in which case petitioner should be resentenced before a different judge, or whether, in the view of the state court, the circumstances require granting the relief sought by petitioner, i.e., the opportunity to withdraw his plea of guilty. We emphasize that this is in no sense to question the fairness of the sentencing judge; the fault here rests on the prosecutor, not on the sentencing judge." 404 US at 263; 92 S Ct at 499; 30 L Ed 2d at 433.
In his concurring opinion Mr. Justice Douglas wrote as follows:
"Where the `plea bargain' is not kept by the prosecutor, the sentence must be vacated and the state court will decide in light of the circumstances of each case whether Due Process requires (a) that *179 there be specific performance of the plea bargain or (b) that the defendant be given the option to go to trial on the original charges. One alternative may do justice in one case, and the other in a different case. In choosing a remedy, however, a court ought to accord a defendant's preference considerable, if not controlling weight, inasmuch as the fundamental rights flouted by a prosecutor's breach of a plea bargain are those of the defendant, not of the State." 404 US at 267; 92 S Ct at 501; 30 L Ed 2d at 436.
In this case the original bargain can still be adhered to if we vacate the defendant's sentence and remand for resentencing without considering the statement. The defendant has requested that he either be allowed to withdraw the plea or that the sentence be vacated. Defendant does not assert that he is innocent. After considering all of the circumstances we believe that in this case it is preferable merely to vacate the sentence.
We feel it necessary to exercise our powers under GCR 1963, 820.1(7) in order to protect the rights of the defendant and avoid placing the judges of the Ninth Circuit in an impossible position. On remand a new presentence report must be compiled. This report shall in no way be derived from the statement. On remand the judges of the Ninth Circuit shall be disqualified and the Court Administrator shall be requested to assign a judge from another circuit.
Reversed and remanded for further proceedings.
All concurred.