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Supreme Court of Michigan
January 11, 2018, Argued; July 26, 2018, Decided; July 26, 2018, Filed
[**720] [*627] BEFORE THE ENTIRE BENCH
As part of defendant's plea deal, he agreed to resign his position as a state senator and not seek public office during his five-year probationary term. After reviewing the agreement, the trial court determined that these terms violated the separation-of-powers doctrine and public policy. It struck down the terms but, over the prosecutor's objection, enforced the [*628] rest of the plea deal. The Court of Appeals affirmed. We took this case to decide whether the resignation and bar-to-office provisions of the plea deal were enforceable, and if not, whether the trial court erred by refusing to allow the prosecutor to withdraw from the deal. We hold that: [***4] (1) the question regarding the resignation provision is now moot and we therefore decline to reach it and instead vacate the Court of Appeals' discussion of that issue, (2) the bar-to-office provision is unenforceable as against public policy, and (3) the trial court erred by not permitting the prosecutor to withdraw from the plea agreement under People v Siebert.1 We would have further held that the validity of the bar-to-office provision must be assessed under the balancing test in Town of Newton v Rumery.2
I. FACTS AND PROCEDURAL HISTORY
While serving as a state senator, in May 2015, defendant fired his rifle at his ex-wife's car and into the air in her presence. He was charged with felonious assault, MCL 750.82; domestic violence, MCL 750.81; [**721] malicious destruction of personal property (worth $20,000 or more), MCL 750.377a; and felony-firearm, MCL 750.227b. In February 2016 he entered into a plea agreement that required him to plead guilty to malicious destruction of property in exchange for dismissal of the other charges. The plea agreement included a sentence agreement to a sentence of 10 months in the Wayne County Jail and 5 years' probation. Defendant also had to comply with various other [*629] conditions, including the two [***5] at issue here: "Resign position as State Senator" (the resignation provision) and "Cannot hold elective or appointed office during full pendency of probation" (the bar-to-office provision).
The plea agreement was put on the record, and defendant pleaded guilty. At a sentencing hearing on March 14, 2016, the court sua sponte struck the resignation and bar-to-office provisions but otherwise sentenced defendant in accordance with the plea agreement. In an order, the trial court explained that the struck provisions represented "an unconstitutional interference by the Prosecutor with the legislative branch of government and with the rights of the defendant's constituents." Further, the order stated that the provisions "offend the Constitution of the State of Michigan, [are] contrary to public policy and compromise the integrity of this court." In all other respects, however, the trial court enforced the plea agreement.
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502 Mich. 624 *; 918 N.W.2d 718 **; 2018 Mich. LEXIS 1391 ***; 2018 WL 3595186
PEOPLE OF THE STATE OF MICHIGAN, Plaintiff-Appellant, v VIRGIL SMITH, Defendant-Appellee.
Prior History: State Senator Virgil Smith pleaded guilty in the Wayne Circuit Court to malicious destruction of property, MCL 750.377a(1)(a)(i). Smith's plea agreement included the dismissal of three charges against him—domestic violence, MCL 750.81(2); felonious assault, MCL 750.82; and carrying a firearm during the commission of a felony, MCL 750.227b. Smith was sentenced to a 10-month jail term and 5 years of probation. As part of the plea agreement, Smith agreed to resign from his Senate seat and to refrain from running for public office during his 5-year probationary period. At sentencing, the court, Lawrence S. Talon, J., sua sponte declared that the parts of the plea agreement requiring Smith to resign from office and to refrain from seeking public office during his probationary period were void because they offended Michigan's constitutional separation of powers, infringed the public's right to elect the representatives of their choice, were contrary to public policy, and compromised the integrity of the court. In all other respects, the court approved the plea agreement and sentenced Smith as previously indicated. The prosecutor moved to vacate Smith's plea, arguing that she was entitled to withdraw from the plea agreement if the trial court would [***2] not approve it in its entirety. The court denied the prosecutor's motion, concluding that allowing the prosecutor to renegotiate the plea agreement would harm the interests of justice. The prosecutor appealed. The Court of Appeals, RIORDAN, P.J., and FORT HOOD and SERVITTO, JJ., initially dismissed the appeal as moot in an unpublished per curiam opinion issued April 18, 2017 (Docket No. 332288), 2017 Mich. App. LEXIS 606, because defendant had voluntarily resigned his seat and appeared to have no intention of running for public office during his term of probation. Shortly after this opinion was issued, defendant filed petitions to run for a seat on the Detroit City Council. In response, the prosecutor moved for reconsideration. After a majority of the Court of Appeals panel voted to deny the motion, the prosecutor appealed in the Supreme Court, which remanded the case to the Court of Appeals for consideration as on reconsideration granted. 501 Mich. 851, 899 N.W.2d 407 (2017). On remand, the Court of Appeals, SERVITTO and M. J. KELLY, JJ. (RIORDAN, P.J., dissenting), affirmed, holding that the resignation and bar-to-office provisions violated the constitutional separation of powers and that the plea agreement infringed the right of defendant's [***3] constituents to determine whether defendant was qualified to hold the office. The Court also held that the trial court had not abused its discretion by denying the prosecutor's motion to vacate the plea. The prosecutor appealed. The Supreme Court ordered and heard oral argument on whether to grant the application or take other action. 501 Mich. 852, 900 N.W.2d 619 (2017) [***1] .
People v. Smith, 321 Mich. App. 80, 2017 Mich. App. LEXIS 1361 (Aug. 22, 2017)
public policy, bar-to-office, public office, plea agreement, trial court, void, resignation, elected, probation, court of appeals, lead opinion, candidates, charges, qualifications, invalid, obligations, vacate, contracts, criminal defendant, restrictions, appointed, sentence, reasons, plea bargain, withdraw, rights, moot, separation-of-powers, bargaining, courts
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