PEOPLE OF MI V LEON DUANE BRIDINGER
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STATE OF MICHIGAN
COURT OF APPEALS
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
January 4, 2011
Plaintiff-Appellee,
v
No. 294616
Ionia Circuit Court
LC No. 2008-014209-FH
LEON DUANE BRIDINGER,
Defendant-Appellant.
Before: DONOFRIO, P.J., and CAVANAGH and FITZGERALD, JJ.
PER CURIAM.
Defendant appeals by delayed leave granted the sentence of 14 months to four years in
prison imposed on his no contest plea-based conviction for resisting and obstructing a police
officer causing injury, MCL 750.81d(2). We affirm. This appeal has been decided without oral
argument pursuant to MCR 7.214(E).
Defendant was charged with identity theft and resisting and obstructing a police officer
causing injury. Defendant subsequently entered into a plea agreement with the prosecution
pursuant to which in return for defendant pleading guilty to the resisting and obstructing charge,
the prosecutor agreed to drop the remaining charge, to agree that defendant would not be
sentenced as an habitual offender, and to agree that any incarceration would be capped at 12
months in the county jail. After pleading guilty, but before sentencing, defendant was released
on bond so that he could resolve charges unrelated to the instant appeal. Defendant’s sentencing
was scheduled for February 24, 2009, and then adjourned to February 25, 2009, at defendant’s
request. However, defendant failed to appear, and a warrant was issued for defendant’s arrest on
February 26, 2009. Defendant was apprehended on March 22, 2009, and sentencing occurred on
March 24, 2009. During sentencing, defense counsel stated that defendant “recognizes that the
opportunity to stay with the jail sentence was lost given his failure to appear and his violation of
bond[,]” and asked the court for a 12-month minimum. The trial court stated that defendant had
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lost the benefit of the Killebrew1 agreement, and imposed a sentence of 14 months to four years.
The trial court denied defendant’s motion for resentencing.
On appeal, defendant argues that he is entitled to specific performance of the sentence
portion of his plea agreement. While defendant couches this issue in terms of a right to specific
performance, we note that as to the imposition of a sentence, a defendant does not have a right to
specific performance of a Killebrew plea bargain, which is an agreement between the prosecution
and the defense. “The judge retains his freedom to choose a different sentence.” People v
Killebrew, 416 Mich 189, 209; 330 NW2d 834 (1982). Instead, defendant must choose between
withdrawing his plea, or accepting the trial court’s sentencing decision. Id. at 209-210. The
instant question, therefore, is more properly whether the trial court should have allowed
defendant to withdraw his plea. A trial court’s denial of a defendant’s motion to withdraw a
guilty plea is generally reviewed for an abuse of discretion. People v Harris, 224 Mich App 130,
131; 568 NW2d 149 (1997). An abuse of discretion occurs when the trial court’s decision falls
outside a range of principled outcomes. See People v Babcock, 469 Mich 247, 269; 666 NW2d
231 (2003).
Once a plea of guilty or nolo contendere has been accepted by the trial court, the
defendant has no absolute right to withdraw it. People v Eloby (After Remand), 215 Mich App
472, 474-475; 547 NW2d 48 (1996); People v Gomer, 206 Mich App 55, 56; 520 NW2d 360
(1994). A court may permit a plea to be withdrawn in the interest of justice before sentencing
unless withdrawal of the plea would substantially prejudice the ability to prosecute the defendant
because of the prosecutor’s reliance on the plea. MCR 6.310(B)(1). In the absence of a
procedural error in receiving the plea, a defendant must establish a fair and just reason for
withdrawal of the plea. Harris, 224 Mich App at 131; People v Jackson, 203 Mich App 607,
611; 513 NW2d 206 (1994). Fair and just reasons for withdrawal include if the plea resulted
from fraud, duress, or coercion, Gomer, 206 Mich App at 58, if the plea involved erroneous legal
advice coupled with actual prejudice to legal rights, People v Jackson, 417 Mich 243, 246; 334
NW2d 371 (1983); People v Shannon, 134 Mich App 35, 38; 349 NW2d 813 (1984), or if the
bargain on which the plea was based was illusory, i.e., the defendant received no benefit from the
bargain, Harris, 224 Mich App at 132. If the facts of the case indicate that the plea was
voluntary, it will be upheld regardless whether the defendant received consideration in return.
Id. at 132-133.
MCR 6.310(B)(2)(a) and (b) provide that a defendant is entitled to withdraw the plea if
the plea involves a prosecutorial sentence recommendation or agreement for a specific sentence
and the court finds that it is unable to follow the agreement or recommendation, or if the trial
court states that it will sentence defendant to a specified term or within a specified range and
then finds that it is unable to do so. See, also, Killebrew, 416 Mich at 209-210. However, when
a defendant does not live up to his part of a plea agreement, this Court has held that he is not
entitled to specific performance of his plea and that he does not have a right to withdraw it. See
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People v Killebrew, 416 Mich 189, 209; 330 NW2d 834 (1982).
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People v Abrams, 204 Mich App 667, 672; 516 NW2d 80 (1994), citing People v Walton, 176
Mich App 821, 825-826; 440 NW2d 114 (1989). See, also, People v Garvin, 159 Mich App 38,
44; 406 NW2d 469 (1987).
In People v Kean, 204 Mich App 533; 516 NW2d 128 (1994), this Court discussed
whether a defendant is entitled to withdraw his plea bargain when he does not comply with the
terms of that agreement, notwithstanding Killebrew’s holding that a defendant should be allowed
to withdraw a plea when the trial court finds that it cannot, or does not wish to, comply with the
sentence agreement between the prosecution and the defense. In Kean, the defendant’s plea
agreement recommended a sentence of five to 20 years. As part of the agreement, the defendant
promised that “within twenty-four hours from the date of the taking of this plea the Defendant
will be in a twenty-four hour in-house drug alcohol residential treatment center or he will report
to the Kalamazoo County Sheriff’s Department.” The agreement specified that the treatment
program would be a “twenty-four hour, seven-day-a-week program wherein the defendant will
not be released from the care and custody of those individuals prior to sentencing.” The
defendant pleaded guilty, and entered a qualifying program within twenty-four hours of his plea.
However, a week later he walked away from the program, and did not appear for his presentence
investigation interview or for sentencing. He was arrested more than two and one-half years
later. Kean, 204 Mich App at 535. The trial court found that by walking away from the
treatment program and by not turning himself in, the defendant had violated the plea agreement
and, consequently, was not entitled to the benefit of the bargain. A majority of this Court agreed.
The majority found that the defendant’s actions after entering the plea acted as a waiver of his
right to withdraw:
In People v Killebrew, 416 Mich 189, 209-210; 330 NW2d 834 (1982),
our Supreme Court held that when a trial court decides not to follow a sentence
recommendation that is part of a plea agreement, it must give the defendant an
opportunity to withdraw his plea before imposing the sentence. However, the
right to withdraw a plea is not absolute. People v Wilkens, 139 Mich App 778,
785; 362 NW2d 862 (1984). In People v Garvin, 159 Mich App 38; 406 NW2d
469 (1987), this Court held that a defendant implicitly waives his right to
withdraw a guilty plea when he escapes from custody. There, as here, the
“sentencing recommendation contemplated that no intervening factors would
occur between the plea and the sentencing.” Id. at 43. We believe that this case is
sufficiently similar to Garvin to uphold the trial court’s denial of defendant’s
motion to withdraw his plea. [Kean, 204 Mich App 536.]
Here, while defendant acknowledges that an individual who violates a specific condition
of his plea agreement is not entitled to specific performance, he maintains that his failure to
appear for sentencing “may have violated his bond conditions but did not violate any specific
condition of the plea agreement.” The parties discuss whether the rule pertains to only
specifically expressed plea conditions, or also to all cases in which a defendant escapes from
custody before sentencing. However, it is unnecessary to resolve such an argument in this case
because defendant was aware of the specific condition that he appear for sentencing, as well as
the consequences should he not do so. As the trial court noted, defendant signed the advice of
rights form in which defendant indicated that he understood he would be giving up a number of
rights. Among these, the form contained a specific paragraph informing defendant:
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If you plead guilty or no contest pursuant to a Killebrew or Cobbs agreement, you
will be allowed to withdraw your plea if the court does not follow the agreement
unless you violate the plea agreement or are in non-compliance with a court
order, including a condition of bond. If you violate the plea agreement or a court
order, including a condition of bond, you give up your right to withdraw your plea
if the judge does not follow the Killebrew or Cobbs agreement.
The bond agreement that defendant signed specifically stated, among its own conditions:
1. I will personally appear for any examination, arraignment, trial, or
sentencing. . . .
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4. I will not commit any crime while released.
Therefore, contrary to defendant’s contention, being present for sentencing and not absconding
was, in fact, a specific term of his plea agreement. While the trial court did not reiterate all of
the conditions orally, the trial court specifically asked defendant whether he had read and
understood the advice of rights form that he had signed, and defendant replied affirmatively.
Defendant’s contention that he did not violate a specific condition of his plea is without merit, as
is his contention that he was never informed that he would suffer the loss of his sentencing
bargain if he failed to appear for sentencing.
Affirmed.
/s/ Pat M. Donofrio
/s/ Mark J. Cavanagh
/s/ E. Thomas Fitzgerald
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