People v. Poole

• Decision Date: 27 June 1967
• Docket Number: Docket No. 2037,No. 3,3
• Citation: 7 Mich.App. 237,151 N.W.2d 365
• Parties: The PEOPLE of the State of Michigan, Plaintiff and Appellee, v. Charles Gerald POOLE, Defendant and Appellant
• Court: Court of Appeal of Michigan — District of US

Page 365

151 N.W.2d 365

7 Mich.App. 237

The PEOPLE of the State of Michigan, Plaintiff and Appellee, v. Charles Gerald POOLE, Defendant and Appellant.

Docket No. 2037.

Court of Appeals of Michigan, Division No. 3.

June 27, 1967.

Rehearing Denied Aug. 2, 1967.

Calvin B. Talhelm, Evart, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Clarence A. Sahlin, Pros. Atty., Osceola County, Reed City, for appellee.

Before FITZGERALD, P.J., and BURNS and HOLBROOK, JJ.

HOLBROOK, Judge.

Convicted on his own plea of guilty, defendant was sentenced for a term of 6 to 15 years for the crime of breaking and entering in the nighttime ¹ on January 31, 1964.

In September of 1965, defendant made claim of indigency and such claim being recognized, counsel was appointed by the trial court for post conviction proceedings. Through counsel, defendant presented a motion for new trial on January 29, 1966. The motion for new trial, granted february 3, 1966, stated that defendant was indigent and was not advised at the preliminary examination of his right to court appointed counsel. Represented by court appointed counsel defendant was arraigned the same day. Defendant again entered a plea of guilty. The record reveals that defendant took this course of action in order to obtain a reconsideration of his sentence.

The trial judge accepted the plea of guilty and sentenced defendant to a term of 8 to 15 years on February 11, 1966. The minimum sentence of 8 years and the maximum sentence of 15 years were reduced at the time of sentence to allow a credit of 2 1/2 years for time already served.

Defendant appeals to this Court and raises 3 issues as follows: (1) Whether the trial judge properly sentenced defendant; (2) whether the maximum sentence should have been 10 years; (3) whether the maximum sentence as imposed was reduced by time already served.

Defendant asserts herein for the first time on appeal that the trial judge improperly sentenced him on his new plea of guilty because of what the trial judge stated concerning his granting defendant's motion for new trial. Defendant further asserts that the trial court should have vacated its order granting a new trial.

The following indicates what transpired on sentencing defendant:

'The Court: Well, I want to say this to you. You are here on a matter in which I am inclined to feel that I made a mistake and I am inclined to feel that in your hopes for a more lenient sentence you have taken advantage of the court. You have filed this motion for a new trial on the grounds that you were not advised by the justice of the peace of your right to counsel at public expense if you were indigent. I came down to Reed City without knowing anything about the case and the prosecutor did not oppose the granting of the motion, so I granted you a new trial and then in preparation for the disposition of this case today, when I looked through the file, I find that you were in fact represented by an attorney at the preliminary examination.

'Defendant: Sir, I was but I was not informed at the first arraignment by the justice of the peace that I was entitled to a lawyer provided for me by the state. In fact, the money that I retained the lawyer with was borrowed. I was indigent at the time.

'The Court: But if you did in fact have counsel at the preliminary examination, then how were you harmed by it?

'Defendant: (Nodding head in the affirmative)

'The Court: At any rate, I had signed the order and I had made that mistake and if it was a mistake, I'm as much responsible for it as anyone because I didn't read the file before I accepted it.'

The granting of a motion for new trial lies within the sound discretion of the trial court, and to establish error, a clear abuse of this discretion must be shown. People v. Dailey (1967), 6 Mich.App. 99, 148 N.W.2d 209. 66 C.J.S. New Trial § 201, p. 490 states that this discretion vested in a trial court is 'a legal, judicial discretion, to be exercised according to, and within the bounds of, law and reason.' 'Abuse of discretion' with respect to granting a motion for new trial connotes more than an error of law or of judgment; it implies an unreasonable, arbitrary, or unconscionable attitude on the part of the trial court. Steiner v. Custer (1940), 137 Ohio St. 448, 31 N.E.2d 855. We do not find from a review of the record any abuse of discretion on the part of the trial judge.

In the case of People v. Beath (1936), 277 Mich. 473, on p. 479, 269 N.W. 238, at p. 240, Mr. Justice Butzel stated as follows:

'It is further claimed that the trial court had no right to set aside an order granting a new trial, even though improvidently granted and under a misapprehension of facts. We find no statute governing the situation. There is authority in other states that in the absence of a statute precluding the revocation of an order granting a new trial, such an order improvidently granted may be revoked.'

This case is authority for the principle of law that a trial court May set aside and vacate an order for new trial improvidently granted. The facts in the case at hand are not conclusive that the order granting new trial was improvidently granted. The failure of defendant to make a motion in the trial court for setting aside the order granting new trial precludes him from raising this issue on appeal.

We do not find the trial judge to have erred in sentencing defendant to a longer minimum term. Defendant knowingly took a risk in seeking a new trial and should not be heard to complain because the new minimum sentence may increase the time he might serve. This Court, in People...