People v. Kennebrew

• Decision Date: 27 December 1996
• Docket Number: 158700,Docket Nos. 158699
• Citation: 220 Mich.App. 601,560 N.W.2d 354
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Milton Lewis KENNEBREW, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 354

560 N.W.2d 354

220 Mich.App. 601

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Milton Lewis KENNEBREW, Defendant-Appellant.

Docket Nos. 158699, 158700.

Court of Appeals of Michigan.

Submitted Oct. 1, 1996, at Grand Rapids.

Decided Dec. 27, 1996, at 9:00 a.m.

Released for Publication March 18, 1997.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, William A. Forsyth, Prosecuting Attorney, and Timothy K. McMorrow, Chief Appellate Attorney, for people.

State Appellate Defender by Amy Neville, for defendant-appellant on appeal.

Before FITZGERALD, P.J., and O'CONNELL and T.L. LUDINGTON, ^* JJ.

PER CURIAM.

In Docket Number 158700, defendant pleaded guilty of possession of less than twenty-five grams of a mixture containing cocaine, M.C.L. § 333.7403(2)(a)(v); M.S.A. § 14.15(7403)(2)(a)(v), and unarmed robbery, M.C.L. § 750.530; M.S.A. § 28.798. In Docket Number 158699, defendant was convicted by a jury of entering without breaking, M.C.L. § 750.111; M.S.A. § 28.306, and of being an habitual offender, fourth offense, M.C.L. § 769.12; M.S.A. § 28.1084. The trial court sentenced defendant to a prison term of ten to twenty-five years for the habitual offender conviction, to be served consecutively to a ten- to fifteen-year term for the unarmed robbery conviction, which in turn is to be served consecutively to a 1 1/2- to 4-year term for the possession conviction. Defendant appeals as of right and his appeals have been consolidated. We affirm.

In June 1991, defendant was arrested and charged with possession of less than twenty-five grams of cocaine and with being an habitual offender, third offense, M.C.L. § 769.12; M.S.A. § 28.1084. In July 1991 defendant was charged with armed robbery, M.C.L. § 750.529; M.S.A. § 28.797, unarmed robbery, and being an habitual offender, third offense, after assaulting a driver and stealing his automobile. In October 1991, defendant pleaded guilty with regard to the possession and unarmed robbery charges in exchange for a dismissal of the other pending charges.

While awaiting sentencing for these pleas, defendant and a cohort entered an apartment in Grand Rapids and took various pieces of personal property from the residence. Subsequently, defendant and his brother returned to the apartment to take more items. While transporting these goods to the home of their mother, defendant and his brother dropped the stolen property and ran from the scene when they realized that they were being tracked by the police. The police tracked defendant to his mother's home and arrested him in January 1992. Defendant was charged with breaking and entering an occupied building with the intent to commit a larceny, M.C.L. § 750.110; M.S.A. § 28.305, and being an habitual offender, fourth offense.

At the sentencing hearing for his earlier plea-based convictions, defendant moved to withdraw the pleas. In February and March 1992, the trial court held two evidentiary hearings regarding defendant's motion. At the completion of these hearings, the trial court took the matter under advisement. At the start of the trial for the breaking and entering charge, the trial court orally denied defendant's motion. The trial court memorialized that decision with an order in late May 1992 and a written opinion in July 1992.

In April 1992, a jury convicted defendant of entering without breaking. In May 1992, another jury convicted defendant of being an habitual offender, fourth offense. Defendant was sentenced in July 1992.

I

Defendant raises two issues pertaining to his guilty pleas. First, defendant claims that the trial court erred in denying his motion to withdraw his pleas because they were based upon coercion and an unfulfilled promise of leniency. Because defendant preserved this issue by moving to withdraw his guilty pleas before sentencing, we must determine whether the trial court abused its discretion in denying defendant's motion. People v. Spencer, 192 Mich.App. 146, 150, 480 N.W.2d 308 (1991).

There is no absolute right to withdraw a guilty plea after a trial court has accepted it. People v. Gomer, 206 Mich.App. 55, 56, 520 N.W.2d 360 (1994). MCR 6.310(B) provides, in pertinent part:

On the defendant's motion or with the defendant's consent, the court in the interest of justice may permit an accepted plea to be withdrawn before sentence is imposed unless withdrawal of the plea would substantially prejudice the prosecutor because of reliance on the plea.

Thus, the defendant has the burden "to establish a fair and just reason for withdrawal of the plea." People v. Jackson, 203 Mich.App. 607, 611, 513 N.W.2d 206 (1994). If the defendant is able to satisfy this burden, the prosecution must then establish that substantial prejudice would arise from the withdrawal. Id. at 611-612, 513 N.W.2d 206. On the other hand, if the defendant fails to satisfy this burden, the trial court does not abuse its discretion in denying the motion. Gomer, supra at 59, 520 N.W.2d 360.

Our review of the record shows that defendant's claim that his pleas were the result of an unfulfilled promise of leniency is no more than an unsupported assertion. The only promise made at the plea hearing was the dismissal of the other pending charges in exchange for the pleas, and defendant acknowledged that this was the complete agreement without any other promises. Defendant failed to introduce any evidence to the contrary during the two-day evidentiary hearing. Similarly, defendant failed to sustain his burden of establishing that he had been coerced into making the pleas or was innocent of the crimes. At best, the record shows that defendant introduced contradictory evidence that he may not have been the person who stole the vehicle, but the record is devoid of any evidence that defendant had been coerced. Because defendant failed to satisfy his burden of persuasion, the burden never shifted to the prosecution to show prejudice. Jackson, supra. Accordingly, we conclude that the trial court did not abuse its discretion in denying defendant's motion.

Alternatively, defendant contends that the trial court erred in ruling that his plea of guilty of unarmed robbery was a "conviction" within the meaning of that term as it is used in MRE 609 because he had not been sentenced with regard to the plea at the time of trial. In pertinent part, MRE 609(a) provides:

For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall not be admitted unless the evidence has been elicited from the witness or established by public record during cross examination.... [Emphasis added.]

It is well settled that a sentence is not an element of a conviction, but rather a declaration of its consequences. People v. Funk, 321 Mich. 617, 33 N.W.2d 95 (1948); People v. Bettistea (After Remand), 181 Mich.App. 194, 199, 448 N.W.2d 781 (1989). There is no prerequisite that there be a sentence for a previous conviction in order to properly use such conviction under MRE 609.

Still, defendant argues that his motion to withdraw his pleas rendered his pleas infirm until such time that the trial court issued an order denying the motion. However, at the time evidence of the convictions was admitted, the trial court had orally denied the motion. The trial court's oral denial of the motion to withdraw the pleas effectively resolved the matter because such a ruling has the same weight and effect as a written order. McClure v. H.K. Porter Co., Inc., 174 Mich.App. 499, 503, 436 N.W.2d 677 (1988). Consequently, we find no abuse of discretion in the admission of evidence of the convictions on the grounds presented.

II

Defendant next challenges the conduct of his two trials below. First, he argues that prosecutorial misconduct during the trial for breaking and entering denied him a fair trial. For allegations of prosecutorial misconduct, we examine the pertinent portion of the record below and evaluate the prosecution's conduct to determine whether it denied the defendant a fair trial. People v. Legrone, 205 Mich.App. 77, 82, 517 N.W.2d 270 (1994).

During rebuttal, the prosecutor commented that defense attorneys often attack the thoroughness of the police investigation as a ploy to convert the case to one against the police. Defendant asserts that this remark was an attempt to personally attack the credibility of his trial counsel and to mislead the jury. A prosecutor cannot personally attack the defendant's trial attorney because this type of attack can infringe upon the defendant's presumption of innocence. People v. Moore, 189 Mich.App. 315, 322, 472 N.W.2d 1 (1991). By looking at the prosecutor's remark in the abstract, it can be interpreted as a general attack on a class of lawyers of which defendant's counsel is a member. Thus, in this light, the prosecutor's remark could have infringed upon defendant's right to a fair trial.

Nevertheless, we do not review the prosecutor's remarks in such a vacuum; the remarks must be read in context. People v. Lawton, 196 Mich.App. 341, 353, 492 N.W.2d 810 (1992). This scope of review is important because an otherwise improper remark may not rise to an error requiring reversal when the prosecutor is responding to the defense counsel's argument. People v. Simon, 174 Mich.App. 649, 655, 436 N.W.2d 695 (1989). Such is the case here. During his closing argument, defendant's attorney argued that the police conducted a sloppy investigation followed by an incomplete interview of defendant. The prosecutor's comment was no more than a response to this argument. Our review of the prosecutor's entire rebuttal argument shows that after making the initial comment, the prosecutor summed up the evidence to establish that the police conducted a thorough investigation. Consequently, we find that defendant was not denied a fair trial by the prosecutor's comment.

Defendant also argues that instructional error during the trial for the supplemental...