People v. Hollman, Docket No. 2663

• Decision Date: 28 June 1968
• Docket Number: No. 1,Docket No. 2663,1
• Citation: 162 N.W.2d 817,12 Mich.App. 231
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. George A. HOLLMAN, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 817

162 N.W.2d 817

12 Mich.App. 231

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. George A. HOLLMAN, Defendant-Appellant.

Docket No. 2663.

Court of Appeals of Michigan, Division No. 1.

June 28, 1968.

Released for Publication Dec. 11, 1968.

Rehearing Denied Aug. 5, 1968.

Miles A. Hurwitz, Ecorse, for appellant.

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

Before T. G. KAVANAGH, P.J., and LEVIN and JOHN H. VANDER, WAL, ^* JJ.

JOHN H. VANDER WAL, Judge.

Defendant, his wife and others were charged with conspiracy to promote a lottery. ¹ On arraignment defendant filed a written waiver of his right to a jury trial and pleaded guilty to an added count of keeping and occupying a building for gambling purposes. ² The court accepted the plea of guilty after questioning the defendant to determine that the plea was voluntary and not induced by any promise of reward. At that time the court permitted the prosecuting attorney, with the concurrence of the Livonia police department, to dismiss the case as against Evelyn Hollman.

On the day defendant was to be sentenced his attorney made a motion to withdraw his plea of guilty in order to proceed with a full jury trial. The ground offered for the motion was that defendant was, in fact, innocent but had pleaded guilty at the behest of his wife who was allegedly too ill to withstand the pressures of a trial. The motion was denied, and defendant was found guilty of keeping and occupying a building for gambling purposes, placed on probation for one year, and fined $500 in costs.

Defendant appeals the denial of his motion to withdraw his plea of guilty and seeks an order for a trial on the merits.

In order to protect the substantial constitutional rights involved, the courts of this jurisdiction have generally been sympathetic to criminal defendants who wish to withdraw their plea of guilty at any time before sentence.

'It has been repeatedly held by this court that a defendant in a criminal case may withdraw his plea of guilty at any time before sentence is imposed.

"We have no question that at any time before sentence the plea of guilty may be changed by the court to one of not guilty.' People v. Utter (1920), 209 Mich. 214, 224, 176 N.W. 424, 427.

"A considerable procedure of long recognition in this jurisdiction admits of withdrawal of a plea of guilty at any time before sentence.' People v. Piechowiak (1936), 278 Mich. 550, 552, 270 N.W. 783, 784.

"A plea of guilty may be withdrawn at any time before sentence.' People v. Wexner (1937), (syllabus) 280 Mich. 696, 274 N.W. 371.

"The first question has been ruled upon by this court on two occasions recently, and it is now the settled rule in this state that a plea of guilty may be withdrawn at any time before sentence.' People v. Stone (1940), 293 Mich. 658, 661, 292 N.W. 520, 521.

"We are committed to the doctrine that a defendant may withdraw his plea of guilty at any time before sentence has been imposed.' People v. Vasquez (1942), 303 Mich. 340, 342, 6 N.W.2d 538.' People v. Sheppard (1947), 316 Mich. 665, 667, 668, 26 N.W.2d 557, 558.

See, also, People v. Hollingsworth (1953), 338 Mich. 161, 163, 164, 61 N.W.2d 22, and People v. Anderson (1948), 321 Mich. 533, 535, 536, 33 N.W.2d 72.

There is a sound policy argument behind the numerous cases permitting the withdrawal of a plea of guilty before sentence. 'The rationale behind these cases is apparent. The right to trial by jury in criminal cases is a substantial constitutional right, as are the attendant rights of confrontation, cross-examination, Et cetera. While these rights may be waived by the defendant, the law has erected many safeguards to protect him against his own ignorance, or folly, and against the pressures that might be applied by others. In the case in which the defendant has pleaded guilty, and then desires to avail himself of his constitutional guarantees, the law will not punish him for his indiscretion.' People v. Banning (1950), 329 Mich. 1, 7, 44 N.W.2d 841, 844.

Permission to withdraw a plea of guilty must be liberally granted, especially where, as in the instant case, no trial has commenced and the record shows circumstances that case grave suspicion upon the veracity and voluntariness of the guilty plea. We hold that it was an abuse of discretion to deny defendant's motion to withdraw his plea of guilty.

The effect of defendant's waiver of his right to a jury trial was nullified by his subsequent motion for a trial by jury. At any time prior to trial and sentencing, courts must be patient with indecisive defendants concerning their basic constitutional right to a trial by jury.

The first count of the information was never dismissed.

Reversed and remanded for a full trial to determine defendant's guilt or innocence on both counts specified in the information.

LEVIN, Judge (dissenting).

Defendant asserts he pleaded guilty to an added lesser offense in consideration of the prosecutor's agreement to dismiss charges against his wife who was ill at the time (and, presumably, also in consideration of dropping the more serious offense originally lodged against the defendant himself). The agreement is not denied by the prosecutor, nor is it asserted that the prosecutor has not carried out his end of the bargain. ¹ The charges against the defendant's wife were dismissed.

The overwhelming weight of established authority is that a kept, ² as distinguished from an unfulfilled, ³ promise of charge concession does not affect the voluntariness of a guilty plea.

Even though I believe a guilty plea in response to the pressure of the bargaining process is inherently involuntary and the plea bargaining practice inconsistent with the sound administration of justice, ⁴ we are bound to accept the law as we find it and leave to higher authority the decision whether and when to change it. We are not justified in making exceptions in individual cases.

Defendant asks us to confound the matter by establishing a distinction, which does not appear heretofore to have been recognized, ⁵ between a promise of a charge concession to the defendant himself (which would not affect the voluntariness of the plea) and a promise of such a concession for the benefit of defendant's wife. The assumption that a defendant's will is more likely to be overborne by a threat to incarcerate his wife than a threat to incarcerate the defendant himself is both quixotic and fanciful. ⁶ There is no basis for a distinction in favor of even the chivalrous accused, assuming it could be established his guilty plea was motivated by such selfless sensitivities.

Our Supreme Court has held that one seekng to withdraw a guilty plea Even before the pronouncement of sentence must state a 'persuasive reason' why the withdrawal should be permitted. People v Zaleski (1965), 375 Mich. 71, 81, 133 N.W.2d 175. ⁷ The reasons offered by the defendant here are that his plea was induced by his wife's ill health, her desire to avoid trial and the pressure on him to agree to the previously mentioned plea arrangement.

But pressure on defendants is the essence and the Sine qua non of negotiated plea arrangements. If negotiated pleas are valid, then (unless the courts are to evolve a body of law concerning the various degrees of pressure which properly can be brought to bear on defendants) ⁸ such pressure on defendants is permissible. Thus, under existing law, the defendant here has advanced no judicially recognized reason for allowing him to withdraw his plea, ⁹ and the trial judge did not abuse his discretion in refusing to allow the defendant to withdraw his plea.

There is no real distinction between a defendant's attempted renunciation of the plea contract before sentencing and after sentencing. If a plea arrangement is involuntary before sentencing, it would not become voluntary upon sentencing; and if it is voluntary after sentencing, then it must have been voluntary before sentencing. It cannot reasonably be asserted that the fact of negotiation and bargaining is a 'persuasive reason' for allowing the withdrawal of a plea before sentencing and not after.

If guilty pleas are to mean anything they must, upon acceptance by the trial court, be the legal equivalent of conviction. The probable guilt or innocence of the defendant is irrelevant on a motion to withdraw a guilty plea, whether Before or after sentence. ¹⁰

The establishment of a more liberal standard for plea withdrawal before sentencing than afterwards could only be justified if we fear that defendants might withdraw their pleas after sentence because of disappointment concerning the severity of the sentence. That should, however, be of no concern if all inducing promises have been kept, because then no defendant could properly be disappointed. In this connection, we should apply standards which we unhesitatingly apply in civil cases where it is asserted that one has been misled by another. ¹¹ If all such promises have not been kept, then the defendant is entitled to withdraw his plea as a matter of right. ¹²

Here the promises made to the defendant were kept. Although I personally believe a plea of guilty in response to a promise of charge reduction, Whether kept or unfulfilled, is involuntary because induced by the promise, under existing precedent a plea in response to a kept promise may not be withdrawn. Controlling authority also requires that a 'persuasive reason' be advanced by one seeking to withdraw his plea, whether before or after sentence. Merely because the request for withdrawal of the plea is prior to sentence does not require the trial judge to grant such request. The fact that the plea in this case was motivated by a kept promise is not under present law a reason entitling the defendant to withdraw the plea. The trial judge's...