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### S T A T E O F M I C H I G A N

**C O U R T O F A P P E A L S**

PEOPLE OF THE STATE OF MICHIGAN,

Plantiff

- Appellant, FOR PUBLICATION August 22, 2017

v No. 332288 Wayne Circuit Court VIRGIL SMITH, LC No. 15

- 005228

- 01

- FH

Defendant

- Appellee.

Before: R IORDAN

, P .J., and S ERVITTO and M. J. K ELLY , JJ.

R IORDAN

, J . ( dissenting )

I respectfully dissent.

A trial court’s decision to set aside a guilty plea is reviewed for an abuse of discretion. People v Strong , 213 Mich App 107, 112; 539 NW2d 736 (1995). An abuse of discretion “occurs when the trial court chooses an outcome that falls outside the range of principled

outcomes.” People v Lee , 314 Mich App 266, 272; 886 NW2d 185 (2016) (quotation and
citation marks omitted). I ssues of constitutional law are reviewed de novo. People v Benton

, 294 Mich App 191, 195; 817 NW2d 599 (2 011)

. In this matter, the trial court abused its
discretion.

The majority finds the reasoning of Leopold v State , 216 Md App 586; 88 A3d 860 (2014)

, and United States v Richmond , 550 F Supp 605 (ED NY 1982)

, to be persuasive in reaching its conclusion that it is improper for a public official to voluntarily resign or voluntarily
forebear public office as part of a negoti ated criminal plea agreement.

Unlike the fact s of our case, the trial court in Leopold unilaterally imposed a special condition of probation prohibiting the defendant, who had been convicted of two counts of misconduct in office, from “be [ ing ] a candida te for any local, state, or federal elected office.” Leopold, 216 Md App at 590 (alteration in original). Further, u nlike former Senator Smith,
defendant Leopold did not enter into a plea agreement containing the elective office prohibition. Thus, the trial court in Leopold did not need to consider whether the defendant voluntarily agreed
to th e provisions that, I believe, are the issue before us in the in stant matter. Rather, the Maryland appellate court considered whether a trial court could unilaterally remove a public officeholder in light of certain provisions of the Maryland constitution. Unlike the Maryland case, we must consider whether the trial court abused its discretion by not enforcing plea- 2

- agreement provision s, and summarily labelling it a “forced resignation” through “prosecutorial
domination

, ” without making any type of determination as to whether the defendant voluntary agreed to resignati on and forbearance in order to resolve the criminal charges pending against
him.

Like the district court judge in Richmond , the majority reasons that such voluntary provisions violate the constitutionally mandated separation of powers doctrine. I belie ve the majority’s reli ance on the Richmond decision also is flawed

, as that court considered issues that

were moot and , in any event, that were decided wrongly

.

The Richmond case involved former Congressman Frederick W. Richmond of New York who, in 1 982, became the subject of a federal criminal investigation. In an effort to dispose of his criminal liability, on August 25, 1982, he pled guilty to three counts in U.S. District Court in Brooklyn

. As part of the plea, he voluntarily resigned from Congr ess, effective immediately, and
also immediately withdrew from the upcoming November election for the then

- vacant Congressional seat. In exchange , six other criminal charges against him w ere dismissed. 1 At his November 10, 1982 sentencing, the judge anno unced that, in his opinion , the already effectuated resignation and withdrawal conditions of the plea agreement violated the separation of powers doctrine, and infringed upon the constitutional right of the public to select Congressmen of their choosing

. United States v Richmond , 550 F Supp 605 (ED NY 1982)

. The district judge's

comments concerning the plea bargaining were made after the plea agreement terms dealing with resignation and withdrawal from candidacy had been fully performed and , apparently, were made without the issue having been otherwise raised by the defendant or, seemingly, briefed by the parties

. 624. Plea Negotiations with Public Officials

– United States v. Richmond, U.S. Attorney’s Manual ( https://www.justice.gov/usam/criminal

- resource

- manual

- 624

- plea

negotiations

- public

- officials

- us

- v

- richmond ) (accessed August 17, 2017). T he plea agreement

was , in all other res pects enfo rced, and since the c ourt's illusory refusal to "accept" the
defendant ’s resignation and non

- candidacy plea terms already had been voluntarily completed, the district judge’s comments had no impact on the sentence. Id . Thus, because of the moot ness doctrine, with there being no case and controversy, the separation of powers issue s raised by the judge never were subject to appellate review

. 2 Id

. ; s ee also People v Richmond , 486 Mich. 29,

1 See Babcock, Pleads Guilty To Three Charges, Washington Post (August 26, 1982) ( https://www.washingtonpost.com/archive/politics/1982/08/26) (accessed August 17, 2017). Because of the age of the Richmond decisio n, the procedural history of the case is not available through any court records that can be accessed online.

2 In any event, “[a]lthough state courts are bound by the decisions of the United States Supreme Court construing federal law, there is no si milar obligation with respect to decisions of the lower
federal courts.” Abela v. Gen Motors Corp, 469 Mich 603, 606; 677 NW2d 325 (2004). Such decisions are not binding on state courts. Id. at 607. This is especially so, when the reasoning relied upon is mere dicta , as it is in United States v Richmond , 550 F Supp 605 (ED NY 1982)

, and is legally and constitutionally flawed.- 3

- 34; 782 NW2d 187 (2010) ( stating “ courts need not reach moot questions or declare principles of law that have no practical effect in the case before it ” ).

Like the judge in United States v Richmond , the majority draws upon a Pandora’s Box of imaginary issues which it hypothesizes could arise if we allow the d efendant the freedom to
choose to resolve the very real criminal charges he faces through plea negotiations . In turn, the majority rejects the notion that a public office holder should be afforded the same freedom of
choice enjoyed by every other person i n Michigan who is the subject of a criminal indictment or charges

.

I agree that because of the separation of powers doctrine, d efendant ’s r esignation, withdrawal, or forbearance may not be imposed involuntarily by the executive or judicial
branches o f gove rnment against a member of the L egislature. The Michigan Constitution provides that “ [n]o person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution. ” Const 196 3, art 4, § 16; Const 1963, art 3, § 2. See also Hammel v Speaker of the House of Representatives , 297 Mich App 641, 646; 825 NW2d 616 (2012); Mich Taxpayers United, Inc v Governor , 236 Mich App 372, 379; 600 NW2d 401 (1999). Cf. Powell v McCormack , 395 US 486; 89 S Ct 1944; 23 L Ed 2d 491 (1969)

. Conversely, neither the United States Constitution nor the Michigan
Constitution places any prohibitions on a person voluntar il y resign ing or forbearing future public
office. Further, there is nothing to suppo rt the majority’s claim that the mere possibility of a negotiated plea in a public corruption case , or in a case in which a publicly elected official is charged with criminal wrongdoing , such as the instant matter

, “could open the door to the executive branch to use its power of prosecution to remove those from elected office that do not align with the executive’s political preferences, under threat of prosecution and likely imprisonment.”

Such a blanket assertio n is troublesome on many levels . First, it s eeks to insulate public ly elected officials f rom a voluntary mechanism for the efficient resolution of charges of criminal wrongdoing. The majority then limit s , without a ny legal justification other than a nake d prediction of the impending demise of the democratic electoral process and the imaginary specter of prosecutors running amok, the ability of a public office holder to freely enter into a plea
agreement. Further, it implies that the judiciary in our sta te is incapable of recognizing instances of potential prosecutorial misconduct. In short, I do not find the majority’s public policy doomsday hyperbole to be persuasive. In fact, anecdotally, over the past thirty

- five years
since the Brooklyn federal dis trict court’s dicta in Richmond , there have been many instances of elected officials voluntarily resigning office as a result of plea agreements and there is nothing I
have found indicat ing that any of those resignations or forbearances have been the “product of an abuse of power by the executive branch.”

My review of the transcript and record in this case confirms that t he trial court failed to comply with the provisions of MRE 6.302 and abused its disc retion when it determined that permitting the prosecution to withdraw the plea agreement would “subvert the ends of justice. ”
The trial court conducted no meaningful voir dire of d efendant regarding the negotiation of the plea agreement, his voluntariness to enter the plea

, or his now

- purported unwillingness to do so.
While the trial court transcript is replete with references to the plea agreement, d efendant was never questioned, on the record, regarding whether he was voluntarily resigning and forbearin g a- 4

- future run for public office or whether he was being forced to enter into such terms. At sentencing, the trial court read the terms of the plea agreement to d efendant and then asked him if he understood that the prosecutor would “ dismiss Counts II, II I and IV in exchange for his plea of guilty ” and for a sentence set out in the agreement. D efendant responded, “ Yes, your Honor.”
While this colloquy does not reflect a voluntary resignation and forbearance by d efendant , it also
does not reflect prosecut orial coercion or domination. In short, th ere is nothing in the trial court record that supports the trial judge’s conclusion that there was “ prosecutorial domination ” over d efendant “ through forced resignation

. ” There is nothing even remotely indicating that the
prosecutor crossed the threshold of the separation of powers and forcibly tried to remove
d efendant from office.

In short, I disagree with the majority’s b lanket prophylactic prohibition on negotiate d plea agreements between prosecutors and public elected officials

. A n elected officeholder should be treated no differently than any other citizen when it comes to the freedom to choose available options for the resolution of criminal matter , n or should any officeholder be forced to remain in office simply because the electorate originally chooses him or her for a position. There is no absolute constitutional right for the electorate to choose any person of their liking to serve in public office. A pers on must agree to serve. E ven if elected, a citizen of the United States, and a citizen of Michigan, is free to decline to serve , or decline to continue to serve, in
office. 3 Here, the defendant should have had the option to do just that in the trial cour t.

Only the defendant can weigh the benefits of assenting to a plea agreement or the potential downside s of rejecting one. I f he feels he has been coerced by the prosecution, implicitly or explicitly, he should have the opportunity to inform the trial court of that coercion. If the trial court then voids any terms of, or vacate s , the plea agreement , the prosecutor should be afforded the opportunity to reinstate any appropriate criminal charges that were d ropped as a result of the agreement. Should the matter eventually go to trial, the trial judge then can consider any evidentiary issues that the defendant wishes to raise relating to the vacated plea agreement

. See MRE 104

.

3 For example, President Lyndon B. Johnson told a March 31, 1968 national television
audience

, "I shall not seek, and I will not accept, the nomination of my party for another term as your president."

Here, in our own state, public officials frequently resign office to pursue other things that they perceive to be in their best interests. Following the majority’s reasoning, those who resign
from office are legally prohibited from do ing so “ because the constitutional rights associated with [their] offices were not for [their individual] benefits, but for the benefit of the people who elected [them]. ” Hence, following the majority’s reasoning, just as it believes former Senator
Smith has no right to voluntarily resign his office, neither do those who resign public office to pursue other employment or personal opportunities.- 5

- I would find that the trial court abused its discretion in denying the prosecution’s motion

to vacate defendant ’s plea agreement.

/s/ Michael J. Riordan