Specific performance of a plea agreement; Requirement that a plea bargain be stated on the record or reduced to a signed writing to be effective; Detrimental reliance; Prosecutorial misconduct/error; Impeachment with other acts evidence; MRE 404(b); People v VanderVliet; People v Werner; Sentencing; Proportionality; People v Dixon-Bey; Justification for an upward departure; Operating while intoxicated (OWI); Operating while license suspended or revoked (OWLS)

The court held that (1) defendant was not entitled to specific performance of a plea agreement, (2) he did not show reversible error based on his prosecutorial misconduct claim, and (3) the trial court did not abuse its discretion in imposing an upward departure sentence. He was convicted of involuntary manslaughter, OWI causing death, OWI causing serious injury, OWLS causing death, and OWLS causing serious injury. The trial court sentenced him to 10 to 15 years each for manslaughter, OWI causing death, and OWLS causing death, and 38 to 60 months each for the other convictions. He contended that he was entitled to specific performance of a “plea offer because he accepted it and relied upon it to his detriment.” The court disagreed. It noted that his “attorney’s statement in response to the prosecutor’s [9/23] e-mail that defendant ‘will be doing a voluntary bind-over to circuit court, at a minimum to keep the written plea offer in tact [sic]’ . . . does not mean that defendant had accepted the offer detailed in the e-mail. On the contrary, the unambiguous language in the e-mail indicated that defendant sought merely to keep the offer open, which further indicated that he wanted to decide later whether to accept it.” The court added that his “subsequent actions confirmed that he had not accepted the agreement.” He sought a Cobbs conference and then “a Killebrew agreement. The trial court reasonably concluded that the request for a Killebrew agreement amounted to a counteroffer, and therefore a rejection of the original offer, and that both events were evidence that negotiations were ongoing, not that defendant had accepted an offer. In fact, the record shows that the parties continued to negotiate after [he] first filed a motion for specific performance. Courts are not compelled to enforce ‘tentative’ plea bargains.” The court also held that the prosecution did not commit misconduct in eliciting “testimony about defendant once previously getting ‘behind the wheel after drinking[.]’” Finally, the trial “court explained its reasons for departing from the guidelines, and for the extent of the departure, the minimum of which was just 20 months above the guideline range.” Affirmed.