People v. Hundley

• Decision Date: 21 November 1989
• Docket Number: Docket No. 108568
• Citation: 449 N.W.2d 121,181 Mich.App. 137
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph HUNDLEY, Defendant-Appellant. 181 Mich.App. 137, 449 N.W.2d 121
• Court: Court of Appeal of Michigan — District of US

Page 121

449 N.W.2d 121

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph HUNDLEY, Defendant-Appellant.

Docket No. 108568.

181 Mich.App. 137, 449 N.W.2d 121

Court of Appeals of Michigan.

Submitted Aug. 3, 1989.

Decided Aug. 25, 1989.

Released for Publication Nov. 21, 1989.

[181 MICHAPP 137] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., George B. Mullison, Pros. Atty., and Martha G. Mettee, Asst. Pros. Atty., for the People.

[181 MICHAPP 138] C. Michael Gorte, Bay City, for defendant-appellant on appeal.

Before HOOD, P.J., and CAVANAGH and FITZGERALD, ^* JJ.

PER CURIAM.

In this appeal as of right defendant challenges the trial court's denial of his motion to withdraw his guilty plea. We affirm.

Defendant originally entered a plea of guilty to one count of criminal sexual conduct, second degree, M.C.L. Sec. 750.520c(1)(a); M.S.A. Sec. 28.788(3)(1)(a), and to being an habitual offender, second offense, M.C.L. Sec. 769.10; M.S.A. Sec. 28.1082.

Complainant was a six-year-old girl and the incidents occurred while defendant's girlfriend was babysitting the child. The plea was entered pursuant to a plea agreement whereby, if defendant admitted the validity of all charges against him, the prosecutor would request a nolle prosequi of two counts of CSC, first degree, and would agree that defendant would not be proceeded against as a third-felony offender. Defendant was sentenced as a second felony offender to a prison term of from 180 to 270 months.

Following his plea and prior to sentencing, defendant retained new counsel and moved to withdraw his guilty plea on the bases that he was not guilty of the offense charged, that the factual basis he gave at his plea had been prepared by his former counsel and was not truthful, and that he had been advised that he would be placed on probation as part of the plea agreement.

A court should be liberal in considering a request to withdraw a guilty plea based on a claim of innocence. However the request need not be granted where it is obviously frivolous. People v. [181 MICHAPP 139] Camargo, 163 Mich.App. 581, 584, 415 N.W.2d 211 (1987).

Defendant expressed no reservations at his plea hearing regarding the nature of his charges. He was informed of the possible maximum prison sentence. He indicated he understood the plea agreement and that no other promises had been made. In denying defendant's motion to withdraw his plea, the court--based on its evaluation of defendant and the record--found that defendant had the ability to...