People v. Carmichael

• Decision Date: 17 October 1978
• Docket Number: Docket Nos. 77-235,77-236
• Citation: 86 Mich.App. 418,272 N.W.2d 667
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Frederick CARMICHAEL, Defendant-Appellant. 86 Mich.App. 418, 272 N.W.2d 667
• Court: Court of Appeal of Michigan — District of US

Page 667

272 N.W.2d 667

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Frederick CARMICHAEL, Defendant-Appellant.

Docket Nos. 77-235, 77-236.

86 Mich.App. 418, 272 N.W.2d 667

Court of Appeals of Michigan.

Oct. 17, 1978.

Released for Publication Jan. 3, 1979.

[86 MICHAPP 418] James R. Neuhard, State Appellate Defender, Janet M. Tooley, Asst. Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Eugene C. Penzien, Pros. Atty., for plaintiff-appellee.

[86 MICHAPP 419] Before ALLEN, P. J., and V. J. BRENNAN and CAVANAGH, JJ.

V. J. BRENNAN, Judge.

On October 27, 1975, defendant Frederick Carmichael pled guilty before Bay County Circuit Judge John X. Theiler to two counts of larceny in a building, contrary to M.C.L. § 750.360; M.S.A. § 28.592. Defendant was also convicted of being a third-time felony offender, contrary to M.C.L. § 769.12; M.S.A. § 28.1084. Defendant was sentenced to 7 to 16 years in prison. He appeals as of right under GCR 1963, 806.1.

The factual circumstances leading to the present convictions bear statement. Defendant was originally charged with four counts of larceny in a building. Three counts arose from thefts or attempted thefts of meat from local grocery stores. The fourth count was brought when defendant was found sleeping in a neighborhood garage. The supplemental information charging defendant as a fifth felony offender was also filed at the same time. Pursuant to plea bargain, prosecution agreed to dismiss two of the four larceny charges in exchange for defendant's plea of guilty to the other two charges. Defendant would plead guilty as well to the supplemental information, though only as a third felony offender.

After defendant's pleas of guilty were entered but before sentencing, motion was made to withdraw the pleas on four principal grounds. Defendant alleged that he was intoxicated at the time of the larceny committed on Saturday, October 25, 1975. Further claim was made that defendant's pleas were coerced by comments of his attorney to the effect he would leave prison "in a pine box". Defendant claimed he was incapacitated by alcoholic withdrawal at the point he was forced to plead guilty on Monday, October 27, 1975. Finally, defendant claims invalid charges brought in the [86 MICHAPP 420] supplemental information charging him as a fifth felony offender made his plea bargain illusory.

Pursuant to a careful and exhaustive discussion of each claim supporting withdrawal, Judge Theiler found none of defendant's allegations persuasive and denied his motion. The principal claim of appeal which we will discuss results from this denial. We need address only this claim at any length.

We recognize that defendants moving to withdraw guilty pleas in Michigan have no absolute right to do so. People v. Flanagan, 72 Mich.App. 613, 614, 249 N.W.2d 872 (1976). Nonetheless, both decisions of the Michigan Supreme Court and this Court clearly indicate that requests for withdrawal of guilty pleas based upon claims not patently frivolous which are made prior to sentencing and accompanied by an assertion of innocence should be viewed with great liberality by the trial court. People v. Hayes, 70 Mich.App. 580, 246 N.W.2d 154 (1976), People v. Thomas, 66 Mich.App. 594, 596, 239 N.W.2d 427 (1976), People v. Lewandowski, 394 Mich. 529, 232 N.W.2d 173 (1975), People v. Bencheck, 360 Mich. 430, 433, 104 N.W.2d 191 (1960).

In reviewing existing decisions, we find much similarity with the present case. The most recent communication from the Supreme Court is Lewandowski. The major claim made by defendant in that case parallels closely defendant's claim in this case that withdrawal symptoms so affected him as to make his plea involuntary. In Lewandowski, where defendant pled guilty to second-degree murder in the shooting death of his wife and wounding of a subsequent pursuer, defendant later attempted to withdraw his pleas claiming he suffered amnesia at the time the pleas were taken. People v. Lewandowski, 58 Mich.App. 18, 226 [86 MICHAPP 421] N.W.2d 843 (1975), On reh., 60 Mich.App. 455, 231 N.W.2d 392 (1975). In the first appeal, we required that defendant demonstrate an abuse of discretion before denial of his motion for withdrawal would be disturbed. On rehearing, we found that though defendant's claims were not frivolous he had failed to produce the necessary evidentiary support for his allegations of amnesia. The Supreme Court reversed in a simple one page opinion, citing People v. Benchek, supra, and People v. Zaleski, 375 Mich. 71, 133 N.W.2d 175 (1965).

We see much to compare between the facts presented in Lewandowski and the claim asserted by defendant here. Defendant in Lewandowski asserted his innocence and contended that his guilty plea was not entered voluntarily. In the present case, we find defendant sufficiently asserted his innocence in the written motion to withdraw his guilty plea. In Lewandowski, defendant's claim was made before sentencing. We find the same true here. However, whereas in Lewandowski defendant offered no factual evidentiary support for his claim of amnesia, defendant in the present matter submitted much record testimony to the effect that his plea was tainted by the effects of his withdrawal. In this regard, we find defendant's position much...