Michigan Supreme Court Lansing, Michigan

Marilyn Kelly,
Chief Justice

Michael F. Cavanag h
Elizabeth A. Weave r

Maura D. Corriga n Robert P. Young, Jr. Stephen J. Markma n Diane M. Hathaway,
J ustices 

# Order

October 16, 2009

138992

PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellee,

v SC: 138992 COA: 290678 Kent CC 07-009448-FH KENNETH MITZ, Defendant-Appellant.

________________ _______________ __________/

On order of the Court, the application fo r leave to appeal the April 7, 2009 order of the Court of Appeals is considered. We DIRECT the Kent County Prosecuting Attorney to answer th e application within 28 days afte r the date of this order. The prosecutor’s answer should include a detaile d response to the defendant’s allegations concerning judicial misconduct surrounding the defendant’s plea.

C ORRIGAN , J. ( concurring ).

I write separately to outline defendant’s primary contentions in hopes that the prosecutor will shed light on each of them. Defendant states that he agreed to plead no contest to a charge of operating a motor vehi cle while under the influence of intoxicating liquor (third offense) only after his attorn ey told him that, al though the legislative sentencing guidelines called for a term of ja il or probation, he was likely to receive a prison sentence if he went to trial. The at torney appears to admit that his advice to

defendant was based on off-the-record conver sations with the trial judge, of which

defendant was unaware. An affi davit from defendant’s appellate attorney states that trial counsel confirmed that the judge stated, off the record, that “absent such a plea agreement, he had sentenced 4 other defendant s in cases just like this one to prison terms.” Defendant alleges that the judge thus improperly told his attorney that a trial

could lead to a harsher sentence. See People v Cobbs, 443 Mich 276, 283 (1993) (prohibiting a judge from “stat[ ing] or imply[ing] alternative sentencing possibilities on the basis of future procedural choices, such as an exercise of the defendant’s right to trial by jury or by the court”). Fi nally, defendant also claims actu al innocence. It does notI, Corbin R. Davis, Clerk of the Mi chigan Supreme Cour t, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court.

_______________________________________ __ Clerk October 16, 2009

l1013 2

appear that the trial court ever evaluated this claim, but it would be significant if defendant can establish that his plea was impr operly induced. He a sserts that a witness would testify that defendant began drinking only after the neighborhood fender bender

that resulted in his arrest and he notes that the police did not arri ve at the scene until

hours after the fender bender occurred. 1

1 The prosecutor may wish to note that this Court is curre ntly considering whether to amend MCR 6.302(C)(1) to e xplicitly provide that “[a] ll discussions regarding a defendant’s plea must take pl ace in open court a nd be placed on the record.” See ADM
File No. 2009-11. The staff comment to the rule as publishe d for public comment explains: “The proposed amendment of MCR 6.302 would require all discussions regarding a defendant’s plea agreement to oc cur in open [court] an d on the record to reduce the possibility that a defendant would be coerced into agr eeing to a particular

sentence.”