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03/29/76 PEOPLE v. BROOKS

March 29, 1976

PEOPLE
v.
BROOKS



Kavanagh, C. J., and Williams, Levin, Coleman, Fitzgerald, Lindemer, and Ryan, JJ., concurred.

SYLLABUS BY THE COURT

-- Plea of Guilty -- Plea Bargain.

Denial of a defendant's motion to withdraw his plea of guilty in one circuit court was reversible error where the defendant's attorney represented at the plea taking that his plea was induced by a promise by a prosecuting attorney of another county to dismiss charges pending in another circuit court and the promise was unfulfilled.

The opinion of the court was delivered by: Per Curiam

Jack Brooks was convicted, on his plea of guilty in Kalamazoo Circuit Court, Raymond W. Fox, J., of breaking and entering a business place with intent to commit larceny. Defense counsel stated that the inducement for the defendant's plea of guilty was an agreement with the Kent County prosecuting attorney that other charges pending in that county would be dismissed after a plea of guilty was entered in Kalamazoo County. Prosecution of the charges in Kent County proceeded, contrary to the alleged agreement, and defendant was convicted by a jury of possession of burglary tools and carrying a concealed weapon. The Kalamazoo Circuit Court denied the defendant's motion to withdraw his plea of guilty. Defendant appealed and the Supreme Court sua sponte granted leave to appeal prior to decision by the Court of Appeals (Docket No. 21704). Held:

Denial of the motion to withdraw the defendant's plea of guilty was erroneous. The representation by defendant's attorney of a promise by a prosecuting attorney to dismiss charges in another county was part of the inducement of the plea of guilty; when the promise was unfulfilled, defendant's motion to withdraw the plea should have been granted.

Reversed and remanded for further proceedings.

On December 4, 1973, defendant pled guilty in Kalamazoo Circuit Court to a charge of breaking and entering a business place with intent to commit larceny. The plea record includes the following colloquy:

"The Court: Are there any -- Mr. McWhorter [defense counsel] and Mr. Silaski [assistant prosecutor] -- are there any agreements between you two affecting other cases in this county or any other agreement?

"Mr. McWhorter: Your Honor, the inducement for this plea is an agreement between myself and the Kent County Prosecutor's Office wherein those charges that are now presently pending in Kent County will be dismissed and that Mr. Brooks, for the dismissal of those charges, would enter a plea of guilty to this charge in this county. They have indicated that they will not dismiss those charges today, but will do so at the time of sentence here or before sentence here, so the basis for this plea, so that it is on the record, is our agreement with Kent County. The Kalamazoo Prosecuting Attorney's Office did not enter into any agreement in this matter. They did confer, at my request, with the Kent County Prosecutor on the telephone when we were interrupted during the trial.

"Mr. Silaski: Your Honor, I spoke to an assistant prosecuting attorney from the prosecutor's office and informed him of the nature of this charge and what the maximum penalty was.

"The Court: Did he indicate to you, as Mr. McWhorter said, what Disposition would be made, or didn't he indicate that?

"Mr. McWhorter: I don't think he did.

"Mr. Silaski: He just told me what the charges were pending in Kent County ...


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