People v. Schluter

*62 Murphy, J. Defendant pleaded guilty of breaking and entering an occupied dwelling with intent to commit larceny. MCL 750.110; MSA 28.305. The trial court accepted the plea and imposed a sentence of four to fifteen years. In addition, the trial court ordered defendant to pay restitution of $25,000 as a condition of discharge from parole. Defendant argues the trial court improperly ordered him to pay restitution, which was not a part of the plea agreement. We reverse and remand for resen-tencing in accordance with this opinion. Defendant offered the plea in exchange for the prosecutor’s dismissal of charges of armed robbery and being an habitual offender. The plea bargain also included a sentence agreement whereby the parties agreed to a sentence of four to fifteen years. This sentence agreement did not address restitution. A hearing regarding the plea was held before Judge John Patrick O’Brien, who advised defendant that if the court accepted the plea, defendant would be sentenced in accordance with the. agreement. The judge did not mention the possibility of restitution. At the end of the hearing, the judge took the plea under advisement. A sentencing hearing was held before Judge Michael F. Sapala, who stated that he was going to abide by the agreement. Then the judge imposed a sentence of four to fifteen years’ imprisonment, to be served consecutively with another sentence. The judge also imposed a restitution order of $25,000 as a condition of discharge from parole. Defense counsel argued that defendant did not believe restitution was a part of the plea agreement. The judge acknowledged restitution was not a part of the agreement, but determined that the court was empowered to impose it. After the sentence was imposed, defendant *63 moved for resentencing and argued that the restitution order was not in conformity with the plea agreement. The trial court denied the motion but modified the restitution order to $24,000. A sentencing court’s authority to order restitution derives from MCL 780.766(2); MSA 28.1287(766)(2), which states: The court, when sentencing a defendant convicted of a crime, may order, in addition to or in lieu of any other penalty authorized by law or in addition to any other penalty required by law, that the defendant make restitution to any victim of the defendant’s course of conduct which gives rise to the conviction, or to the victim’s estate. This statute gives a sentencing court discretion to order restitution in addition to or in lieu of any other penalty authorized or required by law. People v Tyler, 188 Mich App 83, 88; 468 NW2d 537 (1991). The purpose of restitution is to compensate the injured party. People v Carroll, 134 Mich App 445, 446; 350 NW2d 785 (1984). Where a plea bargain includes a sentence agreement, the defendant and the prosecutor have entered into an agreement whereby the defendant agrees to plead guilty in exchange for a specific sentence. People v Killebrew, 416 Mich 189, 206-207; 330 NW2d 834 (1982). Although not bound by the agreement, the trial court must decide to accept or reject it or defer action until the court has had an opportunity to consider the presen-tence report. MCR 6.302(C)(3); Killebrew, supra, 207. If the trial court accepts a plea induced by an agreement with the prosecutor, then the terms of the agreement must be fulfilled. Santobello v New York, 404 US 257, 262; 92 S Ct 495; 30 L Ed 2d 427 (1971); People v Siebert, 201 Mich App 402, 427; 507 NW2d 211 (1993). A sentence agreement *64 is different from a sentence recommendation, which allows a trial court to accept a guilty plea without accepting the sentence recommendation as long as the defendant is given an opportunity to withdraw the guilty plea. Killebrew, supra, 209-210. The sentence-bargaining procedures are set forth in MCR 6.302(C)(3),. which provides: If there is a plea agreement and its terms provide for the defendant’s plea to be made in exchange for a specific sentence disposition or a prosecutorial sentence recommendation, the court may (a) reject the agreement; or (b) accept the agreement after having considered the presentence report, in which event it must sentence the defendant to the sentence agreed to or recommended by the prosecutor; or (c) accept the agreement without having considered the presentence report; or (d) take the plea agreement under advisement. If the court accepts the agreement without having considered the presentence report or takes the plea agreement under advisement, it must explain to the defendant that the court is not bound to follow the sentence disposition or recommendation agreed to by the prosecutor, and that if the court chooses not to follow it, the defendant will be allowed to withdraw from the plea agreement. Here, we must determine whether the trial court’s authority to order restitution prevails even after it has accepted a sentence agreement that did not address restitution. There is no Michigan law directly on point. However, the United States Court of Appeals for the Sixth Circuit considered this issue. In United States v Miller, 900 F2d 919 (CA 6, 1990), the defendants argued that the imposition *65 of restitution violated the plea agreements, because restitution was not mentioned in the plea agreements or at the hearings held pursuant to Rule 11 of the Federal Rules of Criminal Procedure. 1 The court rejected the defendants’ arguments and ruled that restitution could be ordered as provided in the restitution statutes. Miller, supra, 921. The court reasoned that "[w]here a plea agreement does not address one aspect of a defendant’s sentence, the reasonable assumption in most cases is that no agreement was reached on that issue, not that the court could not impose such a punishment.” Id. Further, the court found any error in the hearings that resulted from failure to mention restitution to be harmless, because the defendants told the trial court that they knew a fine could be imposed and the fine amount was larger than the restitution amount. The court found that the defendants were not harmed by the substitution of restitution for a fine. Id. We disagree with the holding in Miller that a plea agreement that includes a sentencing agreement, which does not address restitution, allows a trial court both to accept the plea and to order restitution. Rather, we conclude that such a plea agreement prevents an order of restitution if the trial court accepts the plea. Our conclusion is supported by the wording in MCL 780.766(2); MSA 28.1287(766)(2), which indicates that a restitution order is a part of the penalty imposed by a trial court. Therefore, a court can assume a defendant and a prosecutor rejected the possibility of restitution as part of the penalty when they entered into a sentencing agreement that is silent with regard to the issue of restitution.__ *66 Because restitution orders imposed under MCL 780.766(2); MSA 28.1287(766)(2) are a part of the penalty, we hold that trial courts do not have the authority to order restitution if they accept pleas entered pursuant to sentencing agreements that do not address restitution. This holding is based on the rationale that a defendant has a right to know the consequences of a plea agreement. See United States v Johnson, 657 F Supp 358, 363 (D Conn, 1987). A plea must be made voluntarily with knowledge of the consequences to be constitutionally valid under the Due Process Clause. People v Jaworski, 387 Mich 21, 30; 194 NW2d 868 (1972); People v Smith, 182 Mich App 436, 442; 453 NW2d 257 (1990). In this case, the sentence agreement was silent regarding restitution. At the hearing regarding the plea, the trial court did not follow MCR 6.302(C)(3) when it took the plea under advisement without informing defendant that the court was not bound to follow the sentence disposition agreed to by the prosecutor and that, if the court chose not to follow it, the defendant would be allowed to withdraw from the plea agreement. In addition, there was no discussion about the possibility of court-ordered restitution or fines. At the sentencing hearing, the trial court accepted the plea agreement and then imposed a sentence of four to fifteen years along with the restitution order. Once the trial court accepted the plea agreement after having considered the presentence report, it was required to impose the sentence to which the parties agreed. MCR 6.302(C)(3)Ob). We conclude that the restitution order was inconsistent with the terms of the sentence agreement, which the trial court was required to follow because it had accepted the plea. However, restitution could have been proper if *67 the trial court had accepted the plea without having considered the presentence report or had taken the plea under advisement and had informed defendant that the court was not bound to follow the sentence agreement and that, if the court chose to reject the agreement, then defendant could withdraw the plea. MCR 6.302(C)(3). If the trial court had decided to reject the plea and order restitution, then defendant would have been entitled to an opportunity to withdraw from the plea agreement. Killebrew, supra. Next, we must determine the proper remedy. This Court has held that where a trial court substantially fails to fulfill a plea agreement, a reviewing court has discretion to choose between vacating the plea or ordering specific performance, with the defendant’s choice accorded considerable weight. People v Nixten, 183 Mich App 95, 97; 454 NW2d 160 (1990). Under MCR 6.302(C)(3)(b), the trial court was required to impose a sentence of four to fifteen years once it had accepted the plea agreement after having considered the presentence report. In this case, defendant requests specific performance. Because the trial court was bound by the sentence agreement and defendant requests specific performance, we find that specific performance is the appropriate remedy. We reverse and remand this case to the trial court for resentenc-ing with instructions that the plea agreement be enforced and the provision for restitution eliminated from the sentence. In light of this remedy, we will not discuss the other issue raised by defendant. 2 Reversed and remanded. Footnotes [1] FR Crim P 11(c)(1) provides that the court, before accepting a plea of guilty, must determine that the defendant understands the court may order the defendant to make restitution. [2] Defendant claims his attorney was denied an opportunity to allocute at sentencing. We disagree because defense counsel had an opportunity to speak before sentencing even though he did not specifically address sentencing. Thus, we find no error.