People v. Kimble

• Decision Date: 21 September 1981
• Docket Number: Docket No. 52768
• Citation: 109 Mich.App. 659,311 N.W.2d 446
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Leotis Sonny KIMBLE, Defendant-Appellant. 109 Mich.App. 659, 311 N.W.2d 446
• Court: Court of Appeal of Michigan — District of US

Page 446

311 N.W.2d 446

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Leotis Sonny KIMBLE, Defendant-Appellant.

Docket No. 52768.

109 Mich.App. 659, 311 N.W.2d 446

Court of Appeals of Michigan.

Sept. 21, 1981.

Released for Publication Nov. 4, 1981.

[109 MICHAPP 660] Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Principal[109 MICHAPP 661] Atty., Appeals, and William T. Morris, Asst. Pros. Atty., for the People.

Charles P. Reisman, for defendant-appellant.

Before BRONSON, P. J., and MAHER and O'BRIEN, ^* JJ.

BRONSON, Presiding Judge.

Pursuant to a plea bargain, defendant pled guilty to three armed robbery charges arising out of separate incidents and one count of carrying a firearm during the commission of a felony, contrary to M.C.L. § 750.529; M.S.A. § 28.797 and M.C.L. § 750.227b; M.S.A. § 28.424(2), respectively. As part of the agreement, sentences of 5 to 20 years for one of the armed robbery convictions and two sentences of 8 to 20 years for the other armed robbery convictions were imposed. These sentences were to run concurrently with another term of imprisonment defendant was serving at the time of the plea. Defendant also received a 5-year consecutive sentence for the felony-firearm conviction. Additionally, as part of the bargain, the prosecution agreed not to try defendant as a habitual offender. Defendant now appeals as of right.

Defendant's primary allegation is raised through two different approaches on appeal. Defendant contends that because the total elapsed time between meeting his attorney, pleading guilty, and being sentenced was somewhat less than three hours, his plea cannot be considered voluntary, and he was denied effective assistance of counsel. Following sentencing, defendant moved for a new trial on these grounds. At this time, affidavits were filed averring that defense counsel failed to investigate defendant's claims of an improper lineup identification procedure and of an improperly obtained[109 MICHAPP 662] confession. Defendant further avers that his counsel told him he had to plead guilty that day. ¹

There is no doubt that the pleas here were taken in an unusually hasty manner. It is much more common for a guilty plea to be offered at a pretrial date than for one to be given on the same date the defendant meets his attorney. Additionally, there is usually some period of time between the taking of the plea and sentencing. During this period of time, if a defendant moves to withdraw his guilty plea, asserts his innocence, and gives a reason for withdrawing the initial plea which is not obviously frivolous, the motion for withdrawal should be granted. People v. Zaleski, 375 Mich. 71, 79, 133 N.W.2d 175 (1965), People v. Hatcher, 83 Mich.App. 307, 308, 268 N.W.2d 389 (1978), lv. den., 405 Mich. 823 (1979). In this case, however, as defendant's motion to withdraw came after sentencing, even though there was no period of time between the plea and the imposition of sentence, this rule does not govern defendant's motion. ² Generally, where a defendant moves to withdraw a plea of guilty after sentencing, the trial court's denial of that motion will not be disturbed unless it is clear that the failure of the appellate court to intercede will result in a miscarriage of justice. See, for example, People v. Eaton, 38 Mich.App. 113, 114, 195 N.W.2d 797 (1972), lv. den., 387 Mich. 777 (1972). We note, however, that the rationale for applying this rule is largely absent in this case since defendant's motion to withdraw his plea was obviously not due to dissatisfaction with the sentence imposed (he knew what the sentence would [109 MICHAPP 663] be before he pled guilty) and since defendant had literally no opportunity to reflect on his decision to plead guilty before sentencing.

This Court has recognized that a claim of ineffective assistance of counsel is reviewable following a guilty plea. People v. McDonnell, 91 Mich.App. 458, 283 N.W.2d 773 (1979), lv. den., 407 Mich. 938 (1979), People v. Hale, 99 Mich.App. 177, 182, 297 N.W.2d 609 (1980). While complete resolution of the claim of ineffective assistance of counsel raised here is not possible on this record, defendant did move to withdraw his plea on the same grounds below so that review of the contention is not precluded. McDonnell, supra. We further note the difficulty in obtaining record support for an ineffective assistance claim arising during the process of a plea agreement. See, Comment, Effective Assistance of Counsel in Plea Bargaining: What is the Standard?, 12 Duquesne L.Rev. 321 (1973).

We are unprepared to adopt the rule advanced by defendant's appellate counsel, namely, that there is per se ineffective assistance of counsel where the initial contact between attorney and defendant precedes the plea of guilty and sentencing by only a few hours. At the same time where, as here, a cognizable claim is raised that counsel did not investigate potentially meritorious defenses to the charges, and the timespan from the initial contact between the attorney and his client to the point of the guilty plea is so short that a substantial possibility appears on the record that potential defenses suggested by defendant were not considered, we believe that a full evidentiary hearing on the ineffective assistance of counsel allegation must be conducted. We agree with the panel of our colleagues who decided McDonnell, supra, 461, 283 N.W.2d 773, that defense counsel performs inadequately[109 MICHAPP 664] where he fails to seriously investigate and consider the possibility of defenses suggested by defendant. ³

In this case, although there was a hearing to consider defendant's motion to withdraw his guilty plea, no testimony was taken. Several questions remain unanswered: Does defendant's trial counsel agree that information was relayed which suggested defenses to the charges? Did defendant want to plead guilty without further exploration of possible defenses because he believed he was being offered a good deal? Did trial counsel really indicate that defendant had to plead guilty on the day of their initial contact? If so, what was the complete substance of this conversation? Was there serious investigation of the potential defenses allegedly raised by defendant? Did the alleged suggested defenses apply to all of the charges or would the defenses only have applied to some of the charges? Other relevant matters might need to be developed at the time of the remand.

The prosecution relies on People v. Flanagan, 72 Mich.App. 613, 249 N.W.2d 872 (1976), for the proposition that a guilty plea will not be set aside where defense counsel hurried defendant into making the plea. Flanagan is distinguishable from this case primarily in that the defendant in Flanagan did not express the opinion that his attorney failed to investigate potential defenses. Instead, the defendant in...