84 Mich. App. 509

PEOPLE v CUMMINGS

Docket No. 77-2013.

Submitted May 2, 1978, at Detroit.

Decided July 6, 1978.

*510Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Andrea L. Solak, Assistant Prosecuting Attorney, for the people.

*511Bruce R. Saperstein, for defendant on appeal.

Before: M. F. Cavánagh, P. J., and Bronson and D. F. Walsh, JJ.

Bronson, J.

The primary issue in this guilty-plea appeal is whether a plea may be set aside before sentencing on the prosecutor’s motion on the basis that defense counsel concealed material facts during plea bargaining.

Defendant originally pled guilty to attempted breaking and entering an occupied dwelling with intent to commit larceny on June 28, 1976, pursuant to a plea bargain.1

On July 6, 1976, before sentencing, the prosecutor moved to set aside this plea on two bases: (1) in his plea, defendant stated that he did not know it was an occupied dwelling, and (2) the prosecutor was not made aware of defendant’s extensive record for breaking and entering. The trial court granted the motion on both bases.

Subsequently, defendant pled guilty to breaking and entering an occupied dwelling with intent to commit larceny, MCL 750.110; MSA 28.305. He moved on the sentencing date to withdraw the plea, but that motion was denied. He now appeals of right.

Defendant first contends that the trial court erred in setting aside his original plea to attempted breaking and entering. The trial court’s first reason for setting aside the plea was insufficient. It is not an element of MCL 750.110; MSA 28.305 that defendant know the building he en*512tered was an occupied dwelling house.2

However, we hold that the trial court’s second reason was sufficient to justify setting aside the plea.

As a general rule, even unwise plea bargains are binding on the prosecutor. Santobello v New York, 404 US 257; 92 S Ct 495; 30 L Ed 2d 427 (1971), People v Reagan, 395 Mich 306; 235 NW2d 581 (1975). However, People v Reagan, supra, indicates that there may be situations in which a plea agreement may be held not to bind the prosecutor:

"We are not confronted with the situation where the prosecutor is misled by force of defendant’s connivance into a disadvantageous agreement or where facts not within the fair contemplation of agreement have come to light.” People v Reagan, supra, at 318.3

See State v Lord, 109 NJ Super 80; 262 A2d 244 (1970).

In the case at bar, the lower court found that defense counsel had concealed material information during plea bargaining. There was evidence to support this finding.4 On these facts, the trial court *513did not abuse its discretion in setting aside defendant’s first guilty plea.

Defendant next contends that the trial court abused its discretion in not allowing him to withdraw his second guilty plea on the date of sentencing. At sentencing, defendant stated that he wanted to withdraw his guilty plea, but offered no reason for wanting to withdraw it. The trial court denied his motion, stating that it had reviewed the plea and found it knowingly and voluntarily made.5 We hold that the trial court did not abuse its discretion. People v Stewart, 23 Mich App 589; 179 NW2d 193 (1970). See People v Zaleski, 375 Mich 71; 133 NW2d 175 (1965).

Defendant also challenges his second guilty plea on the basis that the trial court failed to inform him of the possibility of consecutive sentences. This, however, is not required. People v Bennett, 76 Mich App 264; 256 NW2d 459 (1977), People v Larkins, 59 Mich App 199; 229 NW2d 378 (1975).

Finally, we hold that defendant was not prejudiced by the substitution of one attorney from the Detroit Defender’s Office by another from the same office at sentencing. Defendant fails to even allege prejudice from that substitution. See People v Edwards, 18 Mich App 526; 171 NW2d 592 (1969).

Affirmed.

People v. Cummings
84 Mich. App. 509

Case Details

Name
People v. Cummings
Decision Date
Jul 6, 1978
Citations

84 Mich. App. 509

Jurisdiction
Michigan

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