Order                                                                                        Michigan Supreme Court
                                                                                                   Lansing, Michigan

  December 7, 2012                                                                                     Robert P. Young, Jr.,
                                                                                                                 Chief Justice

                                                                                                       Michael F. Cavanagh
                                                                                                             Marilyn Kelly
  145737                                                                                               Stephen J. Markman
                                                                                                       Diane M. Hathaway
                                                                                                           Mary Beth Kelly
  PEOPLE OF THE STATE OF MICHIGAN,                                                                         Brian K. Zahra,
            Plaintiff-Appellee,                                                                                       Justices


  v                                                                 SC: 145737
                                                                    COA: 310796
                                                                    Ingham CC: 11-000462-FH;
                                                                    11-000478-FH
  JAMES EDWARD KITCHEN III,
             Defendant-Appellant.
  _________________________________________/

         On order of the Court, the application for leave to appeal the July 11, 2012 order
  of the Court of Appeals is considered and, pursuant to MCR 7.302(H)(1), in lieu of
  granting leave to appeal, we VACATE the defendant’s sentence in Case No.
  11-000462-FH, and REMAND this case to the Ingham Circuit Court for further
  proceedings. There is no dispute that the trial judge deviated from the plea agreement,
  which included a prosecutorial sentencing recommendation pursuant to People v
  Killebrew, 416 Mich 189 (1977), but then failed to give the defendant the opportunity to
  withdraw his plea. On remand, the trial judge shall impose sentence in accordance with
  the agreement, or conduct a resentencing, or give the defendant the opportunity to
  withdraw his plea.

         We further ORDER the trial court to determine, in accordance with Administrative
  Order 2003-03, whether the defendant is indigent and, if so, to appoint counsel to
  represent him in connection with the remand proceedings.

        We do not retain jurisdiction.

         Finally, we remind the trial judge of her obligations under Canon 3 of the Code of
  Judicial Conduct and caution her against engaging in any further ex parte communication
  with a party in violation of that Canon.




                           I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
                     foregoing is a true and complete copy of the order entered at the direction of the Court.
                           December 7, 2012                    _________________________________________
           s1204                                                               Clerk
