People v. Ferns

• Decision Date: 23 November 1976
• Docket Number: Docket No. 26666
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Mark A. FERNS, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 868

249 N.W.2d 868

72 Mich.App. 479

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Mark A. FERNS, Defendant-Appellant.

Docket No. 26666.

Court of Appeals of Michigan.

Nov. 23, 1976.

Released for Publication Feb. 15, 1977.

Goldstein & Raznick, P.C. by Lawrence S. Katz, Warren, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., George N. Parris, Pros. Atty., William Alan Dardy, Asst. Pros. Atty., for plaintiff-appellee.

Before D. E. HOLBROOK, Jr., P.J., and KAUFMAN and RILEY, JJ.

PER CURIAM.

Defendant Mark Ferns, in return for the dismissal of four other pending charges, pleaded guilty to a single count of receiving stolen property over a value of $100, M.C.L.A. § 750.535; M.S.A. § 28.803.

At the later sentence hearing, but before the actual imposition of sentence, the following exchange between defendant and the judge took place:

'The Court: Mr. Ferns, anything you'd like to say?

'The Defendant: Yes. I'd like to dismiss my Court appointed attorneys because I feel that the attorneys haven't helped me. I feel that I've been under a lot of duress since being incarcerated because when I went to Court in Warren for imperative (sic) driving and use of marijuana, my attorneys was there and they come down, they got a waiting cell there and they came down there, and they was talking to me, and they told me that I'm considered a habitual criminal and that I could get life imprisonment. After I thought about that a lot, and I really got shook up about that. I couldn't think right or nothing. So, then, they told me later about this plea. So, I feel that I have been scared about what they told me, so I said I'd do that. So, when I came to court here, I took that plea, and my lawyers--my lawyer, Mr. Vernon Alger--they had a paper for me to sign, a statement, and he told me what to write on the statement, so I wrote that out, and when we come in here and say the statement to what happened towards the crime, they told me what to say, or the statements, so I said that, and I feel that I was not thinking clearly to give that statement, and I feel I was shook up, and I was really scared about what they told me in the first place, so I said that, and I feel that I'm more liable now in making my own decision, and that I feel that I didn't make the right decision in the first place. For them reasons, I'd like to dismiss my lawyers and withdraw my plea.

'The Court: Are you telling me that you're not guilty of this offense?

'The Defendant: Yes.'

Although defendant's two defense attorneys denied that they had dictated the wording of the guilty plea form, they did acknowledge the discussion of a 'potential' life term under the habitual criminal statute.

The sentencing judge then informed defendant that if the court allowed defendant to withdraw the plea, the prosecutor could proceed on the other four charges as well as the instant charge. Defendant replied that he was aware of the possibility, but nonetheless wished to withdraw his plea:

'The Defendant: * * * I feel that I wasn't in my right state of mind to do that (I.e. plead guilty), and I feel that if I had a fair trial, if I'm found guilty of something, I'm willing to accept, to take what's coming to me, but I was so nervous and shook up from what they told me that I just couldn't think right to make that plea * * *.'

The sentencing judge denied defendant's request and imposed a term of 2 to 5 years in prison.

On appeal, defendant contends that the threat of possible life imprisonment made known to him while he was in jail on another charge hung over him like a sword of Damocles and thus coerced him into pleading guilty.

People v. Bencheck, 360 Mich. 430, 104 N.W.2d 191 (1960), serves as the guiding light on the issue before us. There the Court observed:

'(T)his Court's decision suggest that the trial judge's discretion be exercised with great liberality when the (plea withdrawal) motion is made prior to sentence or commencement of trial. People v. Piechowiak, 278 Mich. 550, 270 N.W. 783 (1936), People v. Stone, 293 Mich. 658, 292 N.W. 520 (1940), People v. Sheppard, 316 Mich. 665, 26 N.W.2d 557 (1947), People v. Anderson, 321 Mich. 533, 33 N.W.2d 72 (1948).

'Where, as here, a defense of innocence is asserted at the time of a request to withdraw the plea, and the request is Not obviously frivolous and is made before commencement of trial and before sentence, the plea should be granted. The right we deal with here is the right to a jury trial, and even what may prove a well-founded belief in defendant's guilt on the part of the trial judge should not impede the...