People v. Lewandowski

• Decision Date: 28 January 1975
• Docket Number: Docket Nos. 18598,18599,No. 2,2
• Citation: 58 Mich.App. 18,226 N.W.2d 843
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael A. LEWANDOWSKI, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 843

226 N.W.2d 843

58 Mich.App. 18

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Michael A. LEWANDOWSKI, Defendant-Appellant.

Docket Nos. 18598, 18599.

Court of Appeals of Michigan, Division No. 2.

Jan. 28, 1975.

Released for Publication April 1, 1975.

James R. Andary, Detroit (J. Thomas McGovern, St. Clair, of counsel), for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Peter E. Deegan, Pros. Atty., for plaintiff-appellee.

Before DANHOF, P.J., and BASHARA and ALLEN, JJ.

ALLEN, Judge.

This case concerns two related incidents occurring the night of December 22, 1972. At that time, defendant entered a tavern in Port Huron, fired several shots at his wife, who was seated with friends at a table, and fled. About to be overtaken, defendant shot one of his pursuers in the chest. Defendant's wife died, but the second victim lived and testified against defendant in the proceedings hereinafter described.

The defendant was charged with first-degree murder of his wife and upon arraignment March 15, 1973, was bound over to circuit court. On April 26, defendant was arraigned in a separate case on the charge of assault with intent to commit murder. By stipulation, the two cases were consolidated. In the consolidation the charge of murder in the first degree was reduced by plea bargaining to second-degree murder.

Thereupon, defendant pled nolo contendere to the charge of second-degree murder, M.C.L.A. § 750.317, M.S.A. § 28.549, and to the charge of assault with intent to commit murder, M.C.L.A. § 750.83, M.S.A. § 28.278. Defendant's counsel explained that the reason for the plea of nolo contendere was that defendant had amnesia for the events of the alleged crimes and accordingly it was not possible to state whether or not defendant was guilty. Testimony was then taken by the trial court from two of the eyewitnesses to the two related incidents charged, and the plea was accepted. On June 12, 1973, defendant wrote the trial judge expressing dissatisfaction with his attorney and asking to withdraw his plea. On July 30, defendant appeared with his counsel asking to withdraw his plea and to substitute attorneys. Substitution was granted and the request to withdraw the plea was taken under advisement. On August 13, defendant again appeared, this time with substitute counsel who moved to withdraw the plea for the reasons noted below. ¹ After again taking the matter under advisement, the trial court on August 27, denied the motion, stating:

'(T)he nolo contendere pleas were entered, as the court records will show, only after a careful recitation of all of the defendant's constitutional rights and other rights to him in the presence of counsel, which the court is satisfied were understood by the defendant.

'That the rights of the defendant were recited to him in the presence of able defense counsel and the court is satisfied that these rights were reviewed by defense counsel with defendant before defendant entered his pleas of nolo contendere.

'That upon the appearance of the defendant before the court and the entering of the nolo contendere pleas, the charges as laid by the information filed, namely, second-degree murder contrary to MSA 28.549, and assault with intent to commit murder, MSA 28.278, were read to the defendant as well as the statutes under which the charges were laid, including the penalties, and the court is satisfied that the defendant understood the charges, the statute and the possible penalty that might be imposed and that the defendant's pleas of nolo contendere in this case were not involuntarily entered.

'That there is no showing of any persuasive reason why the motion to withdraw the pleas should be granted.'

Defendant was then sentenced to from 15 to 25 years on the second-degree murder charge and from 10 to 20 years on the charge of assault with intent to commit murder. Although defendant raises a second claim of error, subsequently discussed, the key issue presented is whether the trial court abused its discretion as provided in GCR 1963, 785.7(4). To our knowledge, the instant case is the first case to raise the issue since the adoption of this section of the revised court rule effective June 1, 1973.

Defendant's plea of nolo contendere was made and accepted April 26, 1973, which was prior to revised court rule GCR 1963, 785.7(4), effective June 1, 1973. Defendant's initial letter to the court requesting withdrawal of his plea, the motion to withdraw the plea and the trial court's subsequent denial thereof all occurred after June 1, 1973. As was inferred in People v. Stockard, 49 Mich.App. 540, 543, 212 N.W.2d 609 (1973), this time factor is important. ² Prior to the adoption of the revised court rule there was no absolute right to change a plea of guilty to one of not guilty. People v. Case, 340 Mich. 526, 531, 65 N.W.2d 806 (1954); People v. Cochrane, 40 Mich.App. 316, 198 N.W.2d 417 (1972). Under the revised rule, the right to withdraw a plea of guilty or nolo contendere is made absolute until such time as the court accepts a plea on the record. Thereafter, the right to withdraw is discretionary with the trial judge. In our opinion the effect of the new rule is to modify the standard for withdrawal of pleas as announced in Case and Cochrane, supra. Under the rule the standard for withdrawal after June 1, 1973 of court-accepted guilty or nolo contendere pleas, is whether the trial court abused its discretion--a decision which is reversible only for an abuse of discretion. We do not find abuse.

The trial court did not act precipitously, and arrived at its decision only after two adjournments and by stating its conclusions in a carefully prepared opinion. Importantly, no medical testimony was furnished lending any support to the conclusionary statement that at the time of the plea defendant could not recall the events for which he was charged. In this respect the case is distinguishable from People v. Henley, 36 Mich.App. 672, 194 N.W.2d 109 (1971), where a defendant prevailed when his motion to withdraw a guilty plea was supported by psychiatric reports. In the present case the record discloses that prior to any proceedings being taken, defendant was forensically examined and found competent to stand trial. He was also examined by a private psychiatrist but the psychiatrist's report was not made available. A claim that recollection is lost through amnesia or confusion is conclusionary only. Its acceptance at face value without at least some supporting evidence can be easily abused. Though not determinative in our decision we note that while defendant subsequently expressed dissatisfaction with his attorney, counsel did succeed in reducing the charge from murder in the first degree to second-degree murder. Accordingly, we find no abuse of discretion.

Even if the liberal standards for withdrawal of pleas as announced in Case and Cochrane, supra, should be held unchanged by GCR 1963, 785.7(4)--an assumption we do not accept--we still find no error in the trial court's refusal to allow withdrawal of the plea. In both People v. Case, 340 Mich. 526, 65 N.W.2d 803 (1954), and People v. Davis, 372 Mich. 402, 126 N.W.2d 725 (1964), refusal to set aside a plea of guilty was found not to be an abuse of discretion. In each case the request to withdraw came during sentence proceedings and after defendant had reason to believe the suggested sentence structure would be unsatisfactory. The same situation exists in the instant case. On July 17, 1973, notice was sent of final disposition. Hearing on the notice was held July 30, at which time the court, in reply to defendant's request to change his plea, said:

'Now, the court has carefully read your presentence report and was prepared to impose sentence this morning in accordance with that report and in accordance with conferences between the Probation Department, the court and your counsel and in the court's opinion you have been very well advised and your case has been very well handled by Mr. McColl.'

In People v. Zaleski, 375 Mich. 71, 81, 133 N.W.2d 175, 180 (1965), the Supreme Court held that the reason given to justify the withdrawal of a plea should be evidentially supported. In that case the supportive evidence was a letter from a naturopathic physician that defendant suffered from nervous indisposition and stomach ulcers. The Court found a 'paucity of persuasive reason offered * * * or such magnitude that it leaves defendant's motion bordering on the frivolous.' While we would not say that defendant's request in the present case was frivolous, we do find a Total lack of supportive testimony.

Defendant's second ground for error is that the trial court's determination of the factual basis for the plea and its truthfulness is defective in two respects. First, defendant asserts that...