People v. Irwin

• Decision Date: 24 June 1970
• Docket Number: No. 2,No. 7245,7245,2
• Citation: People v. Irwin, 180 N.W.2d 638, 24 Mich.App. 582 (Mich. App. 1970)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Thomas IRWIN, Defendant-Appellant. .docket
• Court: Court of Appeal of Michigan

Page 638

180 N.W.2d 638

24 Mich.App. 582

PEOPLE of the State of Michigan, Plaintiff-Appellee, v.Thomas IRWIN, Defendant-Appellant.

.docket No. 7245.

Court of Appeals of Michigan, Division No. 2.

June 24, 1970.

Released for Publication Oct. 29, 1970.

Sherwin F. Biesman, Leitson, Dean, Dean, Segar & Hart, Flint, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert F. Derengoski, Sol.Gen., Robert F. Leonard, Pros.Atty., Donald A. Kuebler, Chief Asst. Pros.Atty., for plaintiff-appellee.

Before LESINSKI, C.J., and McGREGOR and V. J. BRENNAN, JJ.

V. J. BRENNAN, Judge.

On December 23, 1968, defendantThomas Irwin, while in the presence of counsel, pleaded guilty in the Genesee county circuit court to a charge of carrying a concealed weapon.M.C.L.A. § 750.227(Stat.Ann.1962 Rev. § 28.424).The court conducted a full examination under GCR 1963, 785.3(2) and accepted the plea.On February 3, 1969, before sentencing, the defendant moved to withdraw his plea, alleging (1) that it was induced by a police officer's promise to have other outstanding charges dropped, and (2) that there 'might be legal defenses based on violation of his right against unreasonable search and seizure and possibly other constitutional rights.'The 'other constitutional rights' were never specified.An evidentiary hearing was held on the first allegation and the motion was denied.Defendant appeals as of right.

Defendant contends that the court based its ruling on his failure to assert his innocence in the affidavits filed in support of the motion and that the court was therefore in error.People v. Zaleski(1965), 375 Mich. 71, 133 N.W.2d 175.The first part of his contention is not supported by the record.Although the court did mention the defendant's failure to assert his innocence, it did so only in passing.The court instead based its ruling on its finding that no promises had been made, a finding entered after the court had heard testimony from both sides, and well supported by the record.

The claim of illegal search and seizure was apparently abandoned at the evidentiary hearing.The defendant renews his claim on appeal, however, and asserts that it entitles him to withdraw his plea.We disagree.Our Court has recently held that a plea of guilty tendered freely, understandingly and voluntarily while in the presence of counsel waives a claim of illegally gained confession.People v. Temple(1970), 23 Mich.App. 651, 179 N.W.2d 200.The same may be said of a claim of illegal search and seizure.People v. Harvey(1970), 24 Mich.App. 363, 180 N.W.2d 316.See alsoHughes v. United States(C.A. 8, 1967), 371 F.2d 694;Benton v. United States(C.A. 9, 1965), 352 F.2d 59;Harris v. United States(C.A. 9, 1964), 338 F.2d 75;Mahler v. United States(C.A. 10, 1964), 333 F.2d 472.

The withdrawal of a plea of guilty before...