People v. Girard

• Decision Date: 25 August 1969
• Docket Number: No. 1,Docket No. 6118,1
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Donald P. GIRARD, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 567

171 N.W.2d 567

18 Mich.App. 593

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Donald P. GIRARD, Defendant-Appellant.

Docket No. 6118.

Court of Appeals of Michigan, Division No. 1.

Aug. 25, 1969.

Released for Publication Nov. 7, 1969.

Carl Levin, Detroit, Legal Aid and Defender Association, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, William L. Cahalan, Pros. Atty., Samuel J. Torina, Chief Appellate Lawyer, Arthur N. Bishop, Asst. Pros. Atty., Wayne County, Detroit, for appellee.

Before GILLIS, P.J., and BRONSON and BRENNAN, JJ.

PER CURIAM.

This case is submitted on the People's motion to dismiss or affirm. Defendant was convicted, on a plea of guilty, of the crime of second degree murder (M.C.L.A. § 750.317 (Stat.Ann.1954 Rev. § 28.549)), and on July 1, 1968, he was sentenced to serve 50 to 60 years in prison. On February 11, 1969, defendant's motion to withdraw the plea of guilty and set aside the conviction was denied. Appellate counsel was requested and a timely appeal was filed alleging that the court failed to comply with GCR 1963, 785.3(2), and that the sentence was excessive, constituting cruel and unjust punishment.

A complete review of the transcript of the plea examination discloses that the court committed no error in accepting the guilty plea, which was freely, understandingly and voluntarily made by the defendant after he had been examined by three psychiatrists and found to be legally sane. The court personally examined defendant on the record and was satisfied that a crime of second degree murder had been established and defendant had participated therein. This examination was consistent with M.C.L.A. § 768.35 (Stat.Ann.1951 Rev. § 28.1058), GCR 1963, 785.3(2), and People v. Barrows (1959), 358 Mich. 267, 99 N.W.2d 347. Since defendant was represented by counsel, GCR 1963, 785.3(1) has no application. People v. La Roe (1969), 18 Mich.App. 262, 170 N.W.2d 902. There has been no miscarriage of justice. People v. Dunn (1968), 380 Mich. 693, 158 N.W.2d 404, and People v. Winegar (1968), 380 Mich. 719, 158 N.W.2d 395.

In addition, the transcript discloses the court fully complied with the guilty plea requirements set forth by the United States Supreme Court in Boykin v. Alabama (1969), 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274; see also McCarthy v. United States (1969), 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418.

Defendant's assertion that the sentence of 50 to 60 years constitutes an abuse of discretion and cruel and unusual punishment will not ordinarily be reviewed by an appellate court when the sentence imposed falls within the statutory limits set by the legislature, as in this case which involves a maximum of life imprisonment. M.C.L.A. § 750.317 (Stat.Ann.1954 Rev. § 28.549). See People v. O'Den (1968), 15 Mich.App. 10, 11, 165 N.W.2d 874; People v. Tetts (1967), 6 Mich.App. 254, 259, 148 N.W.2d 877; People v. Pate (1965), 2 Mich.App. 66, 68, 138 N.W.2d 553; and see also People v. Krum (1965), 374 Mcih. 356, 362, 132 N.W.2d 69; and People v. Connor (1957), 348 Mich. 456, 463, 83 N.W.2d 315. The case of People v. Murray (1888), 72 Mich. 10, 40 N.W. 29, upon which defendant relies, is no longer applicable as it was decided when Michigan did not...