People v. Cubitt

• Decision Date: 31 July 1970
• Docket Number: No. 3,Docket No. 7777,3
• Citation: 25 Mich.App. 643,181 N.W.2d 573
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard Keith CUBITT, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 573

181 N.W.2d 573

25 Mich.App. 643

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Richard Keith CUBITT, Defendant-Appellant.

Docket No. 7777.

Court of Appeals of Michigan, Division No. 3.

July 31, 1970.

Rehearing Denied Sept. 14, 1970.

Released for Publication Dec. 15, 1970.

Leave to Appeal Denied Dec. 31, 1970.

Joseph J. Jerkins, Kalamazoo, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Donald A. Burge, Pros. Atty., for plaintiff-appellee.

Before FITZGERALD, P.J., and R. B. BURNS and DANHOF, JJ.

PER CURIAM.

The defendant was charged with resisting arrest, M.C.L.A. § 750.479 (Stat.Ann.1954 Rev. § 28.747). The defendant, with retained counsel present, pled guilty to the charge.

The trial judge questioned the defendant and elicited an admission of guilt and a factual basis for the plea in compliance with GCR 1963, 785.3(2) and M.C.L.A. § 768.35 (Stat.Ann.1954 Rev. § 28.1058). However, at the time of sentencing, the defendant's statements regarding his actions when arrested were substantially different from when he pled guilty. In fact, they indicated that he had promptly complied with the arresting officer's requests. Defense counsel did not move to withdraw the plea. The defendant was sentenced to a term of 1 to 2 years in prison with a recommendation that the maximum be 1 year.

The issue on appeal is whether the trial judge, having established a factual basis for the plea, should have Sua sponte set aside the guilty plea when defendant at the time of sentencing made statements inconsistent with the ones made at the time he pled guilty.

There is no longer an absolute right to withdraw a guilty plea before sentencing. It is a matter within the discretion of the trial judge, People v. Fenn (1970), 23 Mich.App. 560, 179 N.W.2d 247. The defendant must state a persuasive reason why the withdrawal should be permitted, People v. Zaleski (1965), 375 Mich. 71, 81, 133 N.W.2d 175; People v. Green (1970), 21 Mich.App. 188, 175 N.W.2d 335. As stated above, in the present case there was no motion to withdraw.

In People v. Prehn (1970), 24 Mich.App. 666, 180 N.W.2d 644, the defendant contended that the trial court erred in failing to set aside the guilty plea Sua sponte on the basis that defendant's statements at the time of sentencing repudiated the necessary element of criminal intent. This Court affirmed stating that the trial court had properly ascertained a factual basis for the plea and the...