People v. Ginther

• Decision Date: 29 February 1972
• Docket Number: Docket No. 12074,No. 2,2
• Citation: 39 Mich.App. 113,197 N.W.2d 281
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Herbert Eugene GINTHER, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 281

197 N.W.2d 281

39 Mich.App. 113

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Herbert Eugene GINTHER, Defendant-Appellant.

Docket No. 12074.

Court of Appeals of Michigan, Division No. 2.

Feb. 29, 1972.

Released for Publication May 16, 1972.

Leave to Appeal Granted July 6, 1972.

Arthur J. Tarnow, State Appellate Defender, Detroit, for defendant-appellant.

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

Before DANHOF, P.J., and T. M. BURNS and VanVALKENBURG, ^* JJ.

PER CURIAM.

Defendant pled guilty to breaking and entering contrary to M.C.L.A. § 750.110; M.S.A. § 28.305, was sentenced to 7 to 10 years in prison, and appeals as of right.

Defendant attempted to offer a plea of guilty at his arraignment; however, the plea was not accepted by the trial court since defendant did not relate sufficient facts to set forth a factual basis upon which to accept the plea. Subsequent to the arraignment, defendant wrote a letter to the trial court requesting that new counsel be appointed to represent him and that a change of venue be granted. A hearing was held pursuant to that letter. Defendant indicated that he wanted a new appointed counsel because his appointed counsel 'didn't show much interest'. Defendant wanted a change in venue because 'I have been in front of you (the trial judge) five times.' The trial court told defendant that he would not appoint new appointed counsel, but that defendant could represent himself. Defendant decided to keep his appointed counsel. The trial court denied the request for change of venue. Later, the defendant offered his guilty plea, which was accepted.

Defendant here asserts that reversible error resulted by reason of the trial court's failure to appoint another attorney as his counsel and to grant his request for change of venue. Aside from defendant's bare assertion that appointed counsel 'didn't show much interest', there is nothing in the record to show that his appointed counsel was incompetent. Therefore, no error resulted from the trial court's refusal to appoint another attorney. See People v. LaMarr, 1 Mich.App. 389, 136 N.W.2d 708 (1965); People v. Edwards, 18 Mich.App. 526, 171 N.W.2d 592 (1969); People v. Henderson, 30 Mich.App. 675, 186 N.W.2d 844 (1971).

Further the trial court did not err in refusing to grant defendant's request for a change of venue. Since defendant failed to make a showing of prejudice on the part of the trial court, his unfounded fears will not suffice to mandate disqualification of the trial judge. GCR 1963, 405.1, 405.2; Wayne County Prosecutor v. Doerfler, 14 Mich.App. 428, 440--441, 165 N.W.2d 648 (1968).

Defendant also asserts that his plea was not voluntary and that he was denied due process of law by reason of a coerced confession. A direct appeal is not the ppropriate method by which to challenge the voluntariness and truthfulness of a guilty plea. People v. Taylor, 383 Mich. 338, 359--360, 175 N.W.2d 715 (1970); People v. Smith, 20 Mich.App. 307, 174 N.W.2d 8 (1969); People v. Dorner, 24 Mich.App. 306, 180 N.W.2d 201 (1970); People v. Sumlin, 32 Mich.App. 1, 188 N.W.2d 144 (1971). Defendant's plea of guilty vitiates his claim of want of due process in securing of the confession. People...