Michigan Supreme Court

Lansing, Michigan

Marilyn Kelly,

 Chief Justice

Michael F. Cavanagh

Elizabeth A. Weaver

Maura D. Corrigan

Robert P. Young, Jr.

Stephen J. Markman

Diane M. Hathaway, Justices

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 for leave to appeal the April 7, 2009 order 

of the Court of Appeals is considered. We DIRECT the Kent County Prosecuting 

Attorney to answer the application within 28 days after the date of this order. The 

prosecutor’s answer should include a detailed response to the defendant’s allegations 

concerning judicial misconduct surrounding the defendant’s plea. 

 CORRIGAN, 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 vehicle while under the influence of intoxicating 

liquor (third offense) only after his attorney told him that, although the legislative 

sentencing guidelines called for a term of jail or probation, he was likely to receive a 

prison sentence if he went to trial. The attorney appears to admit that his advice to 

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

defendant was unaware. An affidavit 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 defendants 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”). Finally, defendant also claims actual innocence. It does not 
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, 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 improperly induced. He asserts 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 arrive at the scene until 

hours after the fender bender occurred.1

 

 

1

 The prosecutor may wish to note that this Court is currently considering whether to 

amend MCR 6.302(C)(1) to explicitly provide that “[a]ll discussions regarding a 

defendant’s plea must take place in open court and be placed on the record.” See ADM 

File No. 2009-11. The staff comment to the rule as published for public comment 

explains: “The proposed amendment of MCR 6.302 would require all discussions 

regarding a defendant’s plea agreement to occur in open [court] and on the record to 

reduce the possibility that a defendant would be coerced into agreeing to a particular 

sentence.”