Defendant Amdebirhan Alemu, a
twenty-year-old college student, was caught with a small amount of
marijuana. He reached a plea bargain
with the prosecutor. Alemu agreed to
plead guilty to possession of marijuana in exchange for dismissal of the
original charge (possession with intent to deliver) and for the prosecution’s
agreement to take “no position on” whether Alemu should receive a probationary
term under MCL 333.7411. Section 7411
permits a court to require certain offenders to complete a probationary period
that, if completed successfully, will result in dismissal of the proceedings
without an adjudication of guilt. The
trial court ultimately declined the request for diversion, sentencing Alemu to
one year of probation and a $1,000 fine.
The Court of Appeals reversed the trial court in a split unpublished per
curiam opinion. The majority concluded
that the trial judge abused his discretion; it vacated Alemu’s conviction and
remanded the case for resentencing, directing the trial court to reconsider the
merits of Alemu’s section 7411 request. The
prosecutor appealed this ruling. On
November 25, 2015, the Supreme Court ordered oral argument on the application,
asking the parties to address (1) whether the agreement in the plea
bargain that the prosecutor would take “no position on 7411” precludes the prosecutor
from filing an application for leave to appeal; and (2) whether the prosecutor
waived the right to seek relief in the Supreme Court by formally taking “no
position” in the Court of Appeals.