People v. Rush

• Decision Date: 17 March 1981
• Docket Number: Docket No. 47270
• Citation: 104 Mich.App. 668,305 N.W.2d 288
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Geraldine RUSH, Defendant-Appellant. 104 Mich.App. 668, 305 N.W.2d 288
• Court: Court of Appeal of Michigan — District of US

Page 288

305 N.W.2d 288

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Geraldine RUSH, Defendant-Appellant.

Docket No. 47270.

104 Mich.App. 668, 305 N.W.2d 288

Court of Appeals of Michigan.

March 17, 1981.

Released for Publication May 15, 1981.

[104 MICHAPP 669] James R. Neuhard, State Appellate Defender, P. E. Bennett, Asst. State Appellate Defender, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Peter D. Houk, Pros. Atty., Janis L. Blough, Asst. Pros. Atty., for plaintiff-appellee.

Before DANHOF, C. J., and MAHER and BEASLEY, JJ.

PER CURIAM.

Defendant pled guilty to five counts of knowingly retaining or securing a credit card without the consent of the cardholder, M.C.L. § 750.157n; M.S.A. § 28.354(14). She was sentenced to five concurrent prison terms of from 32 to 48 months and appeals as of right.

Defendant now contends that the trial court abused its discretion in refusing to grant her motion to withdraw her guilty plea. The motion was made prior to sentencing.

The plea proceeding took place on February 20, 1979. Defendant pled guilty pursuant to a plea bargain whereby the prosecution agreed not to bring habitual offender charges. Three days later, defendant filed a written motion to withdraw the plea. On February 28, 1979, a hearing was conducted on the plea withdrawal motion and an additional motion by defense counsel to withdraw from the case. Defendant testified that she was innocent of the charges and pled guilty to take advantage of the plea bargain. She claimed that [104 MICHAPP 670] she repeatedly told her attorney that she was innocent and that he convinced her to plead guilty anyway. The court then granted the attorney's motion to withdraw from the case and took defendant's motion to withdraw her plea under advisement.

On May 9, 1979, the court again heard argument on the plea withdrawal motion. The prosecution requested a ruling that defendant's former attorney be allowed to testify regarding conversations with defendant. The court held that, because defendant, at the prior proceeding, accused her former counsel of unethical conduct, she waived the attorney-client privilege. Another hearing took place on May 30, 1979, and defendant's former attorney testified that, while she had claimed innocence at times, she had also informed him of facts which indicated that she was guilty. He stated that he discussed the charges, the possibility of a trial and the plea bargain with defendant and that she did not assert her innocence on the date of the plea. The trial court denied the motion to withdraw the plea at the close of this hearing. In reaching his decision, the judge cited a number of factors, including defendant's statements at the plea proceeding which indicated that she understood the charges and the possible penalty as well as the rights waived by a guilty plea, her failure to claim innocence at the plea proceeding and the fact that the plea bargain was favorable to her. The court also found the former defense counsel's testimony credible and concluded that defendant's withdrawal motion was frivolous.

A defendant has no absolute right to withdraw a guilty plea once it is accepted. People v. Bentley, 94 Mich.App. 19, 287 N.W.2d 355 (1979). However, the trial court must treat a plea withdrawal motion [104 MICHAPP 671] with great liberality if it comes before sentencing. People v. Hatcher, 83 Mich.App. 307, 308, 268 N.W.2d 389 (1978). In People v. Bencheck, 360 Mich. 430, 433, 104 N.W.2d 191 (1960), the Supreme Court stated:

"Where, as here, a defense of innocence is asserted at the time of a request to withdraw the plea, and the request is not obviously frivolous and is made before commencement of trial and before sentence, the plea should be granted. The right we deal with here is the right to a jury trial, and even what may prove a well-founded belief in defendant's guilt on the part of the trial judge should not impede the exercise of that right."

Doubts regarding substantiation of the reasons for withdrawal are to be resolved in the defendant's favor. People v. Thomas (After Remand), 83 Mich.App. 235, 268 N.W.2d 356 (1978).

In the present case, defendant's motion for withdrawal was made prior to sentencing and was accompanied by a claim of innocence. The crucial inquiry was whether the motion was obviously frivolous. An affirmative answer to that question hinged upon a finding that defendant was lying when she testified that she was innocent, continually told her attorney she was innocent and was convinced by her attorney to plead guilty despite her innocence. Under the circumstances here, we believe that the liberality standard and the rule requiring resolution...