Michigan Supreme Court: Worthy can withdraw Virgil Smith plea deal

Jonathan Oosting
The Detroit News
Virgil Smith, a 37-year-old Democrat, resigned from the state Senate last year and served a 10-month jail sentence after pleading guilty to malicious destruction.

Lansing — Former state Sen. Virgil Smith cannot be barred from running for office again, but a Thursday ruling by the Michigan Supreme Court means he could potentially face additional punishment for shooting up his ex-wife’s car in 2015.

In a split decision, the state’s highest court said the plea deal he reached with Wayne County Prosecutor Kym Worthy’s office violated public policy by prohibiting Smith, a Detroit Democrat, from seeking election to any office during a five-year probationary period.

But a majority of justices said Wayne County Circuit Court Judge Lawrence Talon erred when he voided that provision and a forced resignation agreement without allowing Worthy to withdraw the plea deal that included a limited 10-month jail term for Smith.  

“When it rejects either the sentence or a plea term like a bar-to-office provision, while keeping the rest of the agreement, the trial court essentially imposes a different plea bargain on the prosecutor than he or she agreed to,” Justice David Viviano wrote in the lead opinion that was joined by Justices Bridget McCormack and Richard Bernstein. “In such circumstances, the trial court infringes on the prosecutor’s charging discretion. This is impermissible.”

The justices kicked the case back to the trial court for additional consideration of the plea deal. Smith had admitted guilt to malicious destruction of property in exchange for the dismissal of domestic violence, felonious assault and firearm charges.

Wayne County Assistant Prosecutor Maria Miller said Worthy’s office is “pleased” the Supreme Court ruled the trial court must allow for withdrawal of a plea agreement if a provision is struck. She did not say whether the office will seek to do so.

“The Wayne County Prosecutor’s Office will determine how the case will proceed in light of this decision,” Miller said.

An attorney for Smith did not immediately respond to a request for comment. The Detroit News was unable to reach Smith directly.

The Michigan Supreme Court did not address the enforceability of a resignation provision in Smith’s plea deal because The Detroit Democrat voluntarily stepped down from the state Senate on March 31, 2016, three days after he began his ten-month sentence.

But the bar-to-office provision in Smith’s plea deal is unenforceable on public policy grounds, the court ruled, stopping short of addressing its constitutionality.

Prohibiting a defendant from seeking public office “would allow political considerations to enter into the prosecutor’s charging calculus,” Viviano wrote. Doing so would restrict “the foundational right of voters” to select their representatives.

“A prosecutor’s charging discretion is a background principle that does not entitle a prosecutor to impair elections,” he wrote. “Nor does the right to enter plea bargains — or the related need for efficient resolution of criminal prosecutions — justify this bar-to-office provision.”

Chief Justice Stephen Markman, joined by Justices Brian Zahra and Kurtis Wilder, concurred with the ruling in part but disagreed that the provision barring Smith from seeking office during probation was inappropriate.

“The fundamental reality of the bar-to-office obligation is that it has been entered into voluntarily by defendant, and it has been entered into by defendant as an alternative to a looming criminal conviction that threatens as a practical matter to bar him from holding legislative office for a considerably lengthier time than the period of his probation under the plea agreement,” Markman wrote.

Justice Beth Clement agreed the resignation requirement was a moot issue, but on different grounds. But she fully agreed the Wayne County Circuit Court should have allowed Worthy’s office to withdraw from the plea deal after voiding parts of the agreement.

Smith ran last year for Detroit City Council, advancing in the District 2 primary but eventually losing in the general election to newcomer Roy McCalister.


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