“[T]his Court has recognized that a sentencing court may consider the nature of a plea bargain and the charges that were dismissed in exchange for the plea for which the court is sentencing.”
How later courts described this case
- “[T]his Court has recognized that a sentencing court may consider the nature of a plea bargain and the charges that were dismissed in exchange for the plea for which the court is sentencing.”
- a court may consider uncharged offenses in making a sentencing departure, “provided the defendant is given an opportunity to test the accuracy of the factual allegations.”
Written by the judges who cited it.
The opinion
Wahls, P.J.
(dissenting). I respectfully dissent. In this case, defendant pleaded guilty of armed robbery in exchange for dismissal of a charge of possessing a firearm during the commission of a felony. In a separate case before another judge, defendant pleaded guilty of armed robbery in exchange for dismissal of two counts of assault with intent to murder and three counts of felony-firearm. Notably, the presentence information report prepared in this case contained no facts regarding defendant’s actions in the separate case, and, therefore, the sentencing court was not apprised of any particular acts committed by defendant underlying the dismissed charges. I do not believe that People v Ewing (After Remand), 435 Mich 443, 446 (opinion by Brickley, J.), 473 (opinion by Boyle, J.); 458 NW2d 880 (1990), permits the sentencing judge in this case to exceed the guidelines solely because defendant entered a plea bargain that resulted in the dismissal of five (not six as asserted *458 by the judge) charges in an unrelated case before another judge. My concern is that the court departed from the guidelines because the charges were dismissed and, essentially, penalized defendant for receiving the benefit of his plea bargain. I find this to be not only reprehensible, but also impermissible under each plurality opinion in Ewing.
Moreover, the trial court’s general conclusory statement that defendant was engaged in "a pattern of conduct that involved multiple life-threatening situations with the presence of a gun” was not supported by the record. Although armed robbery is a serious offense typically involving threats to the victims’ lives, there is no evidence that defendant himself threatened anyone’s life in either armed robbery case. Further, the use of a gun is a factor accounted for under Offense Variable 1, "Aggravated Use of Weapon.” Finally, the additional reasons for departure, rehabilitation and the protection of society, are nothing more than "boiler plate language” that does not explain why this particular defendant should receive a sentence greater than the guidelines’ recommended range. I find the additional reasons asserted by the sentencing court are also not adequate to justify the departure.
Accordingly, I believe that defendant’s sentence violates the principle of proportionality because the sentencing court failed to articulate adequate reasons to justify the departure from the guidelines’ recommendation. I, therefore, would vacate defendant’s sentence and remand for resentencing by a different judge.