
    PEOPLE v BAHLHORN
    Docket No. 47841.
    Submitted January 20, 1981, at Detroit. —
    Decided April 8, 1981.
    Leave to appeal applied for.
    Tanya L. Bahlhorn was convicted, on her plea of guilty, of possession of a controlled substance, in Monroe Circuit Court, James J. Kelley, J. The defendant had entered into a sentence bargain agreement with the prosecuting attorney resulting in the defendant’s plea of guilty. The trial judge specifically cautioned the defendant that he was not required to follow the prosecutor’s recommendations as to what sentence would be imposed. Judge Kelley subsequently sentenced the defendant to 14 months to 2 years imprisonment, disregarding the recommendation of the prosecuting attorney that defendant be sentenced to county jail time to be served on weekends. The defendant appeals, alleging that, since the prosecutor’s sentence recommendation, bargained for by the defendant, was not followed, she should be allowed to withdraw her plea of guilty. Held:
    
    The defendant should be allowed to withdraw her guilty plea. The cautionary instruction by the trial court that it was not bound to accept the prosecutor’s sentence recommendation would not change the defendant’s expectation that the plea agreement would be carried out.
    Reversed and remanded with instructions.
    Cynar, J., dissented. He would affirm the defendant’s conviction since prior to accepting the defendant’s plea the trial judge clearly and specifically informed the defendant that the court was not bound by the prosecutor’s recommendation for sentence, which the defendant acknowledged she understood. The trial judge did all that was required of him under the circumstances.
    References for Points in Headnotes
    [1] 21 Am Jur 2d, Criminal Law §§ 491, 503-506.
    Right to withdraw guilty plea in state criminal proceedings where court refuses to grant concession contemplated by plea bargain. 66 ALR3d 902.
    
       21 Am Jur 2d, Criminal Law § 493.
    
      Opinion of the Court
    1. Criminal Law — Plea Bargains.
    A defendant should be given an opportunity to withdraw his plea of guilty upon learning that a sentence recommendation made by the prosecuting attorney to the sentencing judge and which played at least a partial role in the defendant’s decision to forego trial and plead guilty will not be followed by the sentencing judge.
    2. Prosecuting Attorneys — Recommendations for Sentence.
    A prosecuting attorney should decline to make sentence recommendations in jurisdictions where the prosecutor’s recommendations are not weighted.
    Dissent by Cynar, J.
    3. Criminal Law — Sentencing — Sentence Bargains.
    
      The authority to pronounce sentence is within the exclusive province of the judiciary; neither the prosecution nor the defendant can bind the court with a sentence bargain and no error occurs where the trial court, prior to accepting a defendant’s plea, clearly and speciñcally informs the defendant that the court is not bound by the prosecutor’s recommendation and where the defendant acknowledges understanding.
    
    
      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Michael W. LaBeau, Prosecuting Attorney, and William D. Bond, Assistant Prosecuting Attorney, for the people.
    
      Nora J. Pasman, Assistant State Appellate Defender, for defendant on appeal.
    Before: N. J. Kaufman, P.J., and M. J. Kelly and Cynar, JJ.
   M. J. Kelly, J.

Defendant pled guilty to possession of a controlled substance, MCL 333.7403(2)(a)(iv); MSA 14.15(7403)(2)(a)(iv), and was sentenced to 14 months to 2 years imprisonment. Defendant now appeals of right. There was a plea pursuant to a sentence bargain agreement reached with the prosecutor. On July 26, 1979, the trial judge disregarded the prosecutor’s sentence recommendation and sentenced defendant to a term of 14 months to 2 years. The agreement with the prosecutor was to the effect that he would recommend only county jail time and that any sentence of incarceration could be served on weekends at the county jail. The learned trial judge specifically cautioned the defendant that he was not required to follow the prosecutor’s recommendations. He emphasized that the court often ignored such recommendations and that there was no guarantee she would not be sent to prison.

This Court is split as to whether a trial judge must grant the defendant an opportunity to withdraw a guilty plea when the prosecutor’s sentence recommendation, bargained for by the defendant, is not followed. In People v Briggs, 94 Mich App 723; 290 NW2d 66 (1980), lv gtd 408 Mich 958 (1980), the Court held that a defendant was entitled to an opportunity to withdraw the plea. The opposite result was reached by a different panel in People v Yates, 99 Mich App 396; 297 NW2d 680 (1980).

We acknowledge that it is a close question, but we lean to the rationale of People v Briggs, supra, 726, in which the Court cited the ABA Standards, Pleas of Guilty, § 3.3(b) (Approved Draft, 1968) and "principles of fairness” to hold that "the defendant [should] be given an opportunity to withdraw his plea upon learning that the sentence recommendation, which played at least a partial role in his decision to forego trial and plead guilty, will not be followed”. A cautionary instruction by the trial court that it was not bound to accept the prosecutor’s sentence recommendation would not, in our view, change a defendant’s expectation that the plea agreement will be carried out.

This decision is not to be interpreted as a criticism of the sentencing judge, who could not have been more explicit when he said "the court can and often does ignore recommendations made by the prosecutor or other persons”. We would like to offer the suggestion that in jurisdictions where the prosecutor’s recommendations are not weighted, the prosecutor decline to make sentence recommendations and we will not get into the charade carried on in cases such as this, Briggs and People v Hagewood, 88 Mich App 35; 276 NW2d 585 (1979).

The case is remanded to the trial court with instructions to give the defendant an opportunity to withdraw her plea if she so desires. If she does not move to set aside her plea within 20 days of the date of the certification of this opinion, her conviction and sentence are affirmed. We do not retain jurisdiction.

N. J. Kaufman, P.J., concurred.

Cynar, J.

(dissenting). I respectfully dissent. Prior to accepting defendant’s plea, the trial court clearly and specifically informed defendant that the court was not bound by the prosecutor’s recommendation, which the defendant acknowledged she understood. The trial judge did all that was required of him under the circumstances, People v Hagewood, 88 Mich App 35, 39; 276 NW2d 585 (1979) (Cynar, J., concurring), and People v Yates, 99 Mich App 396, 399; 297 NW2d 680 (1980). I would affirm.  