People v. Moore

• Decision Date: 27 January 1970
• Docket Number: No. 1,Docket No. 6461,1
• Citation: People v. Moore, 175 N.W.2d 38, 21 Mich.App. 150 (Mich. App. 1970)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Donald T. MOORE, Defendant-Appellant
• Court: Court of Appeal of Michigan

Page 38

175 N.W.2d 38

21 Mich.App. 150

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Donald T. MOORE, Defendant-Appellant.

Docket No. 6461.

Court of Appeals of Michigan, Division No. 1.

Jan. 27, 1970.

Released for Publication March 20, 1970.

Ben Rosenthal, Detroit, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Arthur N. Bishop, Asst. Pros. Atty., Wayne County, Detroit, for appellee.

Before LESINSKI, C.J., and J. H. GILLIS and QUINN, JJ.

PER CURIAM.

Defendant plead guilty in January of 1968 to a charge of assault with intent to commit rape.* Defendant now asks this Court to find that his constitutional right to due process was violated or in the alternative that the trial court failed to determine that his guilty plea was knowingly, willingly, and truthfully made.

A review of the facts of this case and the law applicable establishes that no violation of defendant's right to due process occurred. Specifically, defendant was promptly arraigned, had effective counsel within the requirements mentioned in People v. Davison (1968), 12 Mich.App. 429, 163 N.W.2d 10 and People v. Crawford (1969), 16 Mich.App. 92, 167 N.W.2d 814, and failed to make a demand for a speedy trial as is required by People v. Miklovich (1965), 375 Mich. 536, 134 N.W.2d 720.

More important is defendant's claim that the trial court violated its duty to ascertain whether defendant's guilty plea was knowingly, willingly, and truthfully made.

Contrary to defendant's suggestion, the trial court's failure to require the defendant to establish the elements of the offense by his own testimony is not fatal.

'It would have been better had the trial judge obtained a recital on the record of the events in the defendant's own words but his failure to do so is not always fatal--it does not automatically require allowance of a motion to withdraw a plea of guilty.

'The court rule (GCR 1963, 785.3(2)) * * * requires 'reasonable ascertainment of the truth of the plea.' We have recently said * * * this requires that it appear there is a substantial factual basis for the plea.' People v. Seifert (1969), 17 Mich.App. 187, 189, 169 N.W.2d 345, 347.

A review of the record establishes that there is 'a substantial factual basis for the plea.'

At the preliminary examination the complaining witness gave explicit testimony regarding defendant's action.

'While the defendant's probable guilt or innocence is not relevant on a motion for withdrawal of his guilty plea and the 'frequently one-sided preliminary examination testimony' may not be considered as a factor in granting or denying a motion to withdraw a guilty plea (People v. Zaleski (1965), 375 Mich. 71, 81, 133 N.W.2d 175, 180), we may properly look at the testimony at the preliminary examination in considering a claim that there was not a factual basis justifying acceptance of a proffered plea of guilty.' People v. Bartlett (1969), 17 Mich.App. 205, 210, 169 N.W.2d 337, 341.

This testimony was examined by the trial court and accepted as true by the defendant. In fact, the trial court expressly asked,

'Mr....