People v. Holmes, Docket No. 111068

• Decision Date: 22 January 1990
• Docket Number: Docket No. 111068
• Citation: 449 N.W.2d 917,181 Mich.App. 488
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Anthony Junior HOLMES, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 917

449 N.W.2d 917

181 Mich.App. 488

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Anthony Junior HOLMES, Defendant-Appellant.

Docket No. 111068.

Court of Appeals of Michigan.

Submitted Sept. 13, 1989.

Decided Dec. 18, 1989.

Released for Publication Jan. 22, 1990.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Paul L. Maloney, Pros. Atty., and James M. Miller, Asst. Pros. Atty., for the People.

Patrick W. Priest, Three Rivers, for defendant-appellant on appeal.

Before McDONALD, P.J., and MURPHY and GRIFFIN, JJ.

GRIFFIN, Judge.

Defendant pled nolo contendere to one count of armed robbery, M.C.L. Sec. 750.529; M.S.A. Sec. 28.797, and one count of kidnapping, M.C.L. Sec. 750.349; M.S.A. Sec. 28.581. He was sentenced to six to thirty years in prison on the armed robbery conviction and eighteen to sixty years for the kidnapping. He now appeals as of right, challenging the trial court's denial of his motion to withdraw his plea prior to sentencing. We affirm.

I

On May 29, 1987, defendant was arraigned in Fifth District Court in Berrien County on four counts: (1) armed robbery; (2) assault with intent to commit criminal sexual conduct; (3) kidnapping; and (4) felony-firearm. At the conclusion of a preliminary examination, the defendant was bound over to circuit court on all four charges.

On February 29, 1988, pursuant to a plea-bargain arrangement, the defendant offered a plea of nolo contendere to an amended information which charged armed robbery and kidnapping only. The plea of nolo contendere was accepted by the court on the basis of the defendant's claimed loss of memory of the events and after a factual basis for the plea had been established. ¹

On the date scheduled for sentencing, the defendant conferred with his counsel concerning the presentence investigation report and its sentence recommendations. After reviewing the report, defendant made a request to withdraw his nolo contendere plea. The Berrien Circuit Court adjourned the sentencing and scheduled a hearing on defendant's motion. Defendant's oral and written motions did not recite a factual basis for a claim of innocence but rather continued the defendant's assertion of a total lack of memory of the events. In addition, the written motion contained a conclusory assertion of innocence:

5. That your petitioner does not have any memory or recollection of the evening of May 16, 1987, the alleged date of the offense and does not believe that he [is] guilty of the actions for which he is charged.

At a hearing held May 25, 1988, the defendant testified, but added nothing further to his written motion. Defendant continued to claim a total memory loss; he presented neither an alibi nor any evidence to rebut the factual basis upon which his previous plea was accepted. At the conclusion of the hearing, Berrien Circuit Judge Casper O. Grathwohl denied defendant's motion as frivolous after finding that the attempted withdrawal was motivated by a sentencing concern. ²

II

In effect for the instant case is former MCR 6.101(F)(6)(b) which provided:

After the court accepts the plea:

(i) the court may set it aside on the defendant's motion; or

(ii) the court may set it aside on its own initiative, but only with the defendant's consent. [Emphasis added.]

This former court rule recognized the trial court's discretion to grant or deny a motion to withdraw a plea prior to sentencing. The rule, however, failed to specify a standard for the exercise of such discretion. Accordingly, we look to the decisions of the Supreme Court and our Court to define the standards for the exercise of the trial court's discretion.

As noted by Judge Grathwohl, our Court has repeatedly held that requests to withdraw pleas are to be regarded as frivolous where the circumstances indicate that the defendant's true motive in making the motion is a concern regarding sentencing. People v. Morgan, 63 Mich.App. 686, 235 N.W.2d 154 (1975), lv. den. 397 Mich. 833 (1976), People v. Scott, 115 Mich.App. 273, 320 N.W.2d 242 (1982), and People v. Paulus, 121 Mich.App. 445, 328 N.W.2d 659 (1982), lv. den. 417 Mich. 1025 (1983), reconsideration gtd. and remanded on other grounds 417 Mich. 1100.15, 338 N.W.2d 188 (1983). In addition, numerous decisions contain dicta in support of these authorities. See, e.g., People v. Camargo, 163 Mich.App. 581, 584-585, 415 N.W.2d 211 (1987), and People v. Lewis, 176 Mich.App. 690, 694, 440 N.W.2d 12 (1989).

In Morgan, the defendant knowingly and voluntarily pled guilty to a reduced charge of second-degree murder. After reviewing the presentence report prior to sentencing, defendant wrote a letter to the trial judge stating that he was innocent and informing the judge that he wanted to withdraw his guilty plea. Following the denial of the motion, defendant appealed. In affirming, our Court determined that defendant's plea was knowingly and voluntarily made and concluded that "it appears to us that this defendant is merely sentence-and-judge shopping." Morgan, supra, 63 Mich.App. p. 689, 235 N.W.2d 154.

Judge Donald E. Holbrook, Jr., dissented on the basis that the lower court erred in failing to properly apply the "great liberality" standard of People v. Bencheck, 360 Mich. 430, 104 N.W.2d 191 (1960).

In Scott, at the beginning of the sentencing hearing, defendant sought to withdraw his previously entered plea of guilty to armed robbery and felony-firearm. Although the defendant asserted in connection with his attempted withdrawal that "I'm not guilty," the circuit court refused to grant the motion to withdraw. This Court in a unanimous opinion affirmed the lower court on the ground that, although Scott asserted his innocence, he failed to offer an alternative factual basis in support of his motion:

In the case at bar, the judge had the benefit of hearing defendant Scott's recitation of the factual basis for the plea. Defendant Scott was the first of the defendants to explain the crime and his story was substantially corroborated by that of defendant Baytops. At sentencing, although Scott did assert his innocence, he offered no alternative explanation of the events, nor did he indicate in what manner his earlier recitation was erroneous. While it is true that doubts regarding substantiation of the reasons for withdrawal are to be resolved in a defendant's favor, ... defendant stated nothing that would raise a doubt. We believe that where the defendant failed to indicate how the earlier recitation was faulty, but merely stated at sentencing that he believed he was innocent, the sentencing judge did not abuse his discretion in finding that the asserted ground for withdrawal was frivolous. Denial of the motion to withdraw did not result in error. [Scott, supra, 115 Mich.App. pp. 276-277, 320 N.W.2d 242. Emphasis added.]

Finally, in Paulus defendant attempted to withdraw a plea of nolo contendere ³ to uttering and publishing prior to sentencing. On appeal, we affirmed the lower court's denial of the motion, holding that defendant's motion was frivolous since the true motive for the motion was a sentencing concern:

We reject defendant's argument that the trial court should have granted his motion to withdraw his plea of nolo contendere.

... Requests to withdraw pleas are, however, regarded as frivolous where the circumstances indicate that the defendant's true motive in making the motion is merely a concern regarding the sentence. People v Morgan, 63 Mich App 686; 235 NW2d 154 (1975), lv den 397 Mich 833 (1976).

... Defendant's motion to withdraw his plea was apparently an effort to head off a probable prison sentence. Dissatisfaction with the sentence, however, is not a basis upon which a plea should be set aside. People v McClain, 402 Mich 824; 260 NW2d 287 (1977), rev'g 81 Mich App 84; 264 NW2d 1 (1977). [Paulus, supra, 121 Mich.App. pp 449-450, 328 N.W.2d 659. Emphasis added.]

III

In the instant case, the defendant's motion to withdraw the plea occurred after he had conferred with his counsel concerning the presentence report. Although defendant's motion contains a conclusory assertion of innocence, like in Scott, defendant has not offered an alternative explanation of the events which formed the factual support for his earlier plea. The previously established factual basis for the plea remains unrebutted.

The finding by the lower court that the true motive for defendant's motion was a sentencing concern is supported by the evidence and not clearly erroneous. Accordingly, we conclude that the lower court did not abuse its discretion by denying defendant's motion as frivolous.

IV

Defendant's reliance on People v. Bencheck is misplaced. Unlike in the instant case, defendant Bencheck offered with his motion to withdraw a rebuttal of the factual basis upon which his earlier plea was based. Bencheck's "new story," however, was not believed by the circuit judge, who was convinced of Bencheck's guilt despite the factual protestation of innocence. Although one could infer that the impetus for the new factual scenario was the severity of the sentence imposed upon Bencheck's brother, the Supreme Court did not address the issue. Rather, the Supreme Court held that the lower court erred in denying the motion and should not have evaluated the credibility of Bencheck's new story when the factual defense of innocence was asserted prior to sentencing.

The Bencheck Court recognized the discretion of the trial judge to grant or deny a motion to withdraw a plea when such a motion is made prior to sentencing. It also reiterated that "there is no absolute right to withdrawal of a guilty plea." Bencheck, supra, p. 432, 104 N.W.2d 191. Accordingly, even under Bencheck's "great liberality" standard there are limits on the defendant's right to withdraw a plea prior to sentencing.

Since Bencheck, additional factual situations have been addressed by our Court which further define the parameters of the trial court's discretion. These...