People v. Shillings, Docket No. 2035
Decision Date | 28 March 1967 |
Docket Number | No. 3,Docket No. 2035,3 |
Citation | 149 N.W.2d 231,6 Mich.App. 420 |
Parties | PEOPLE of the State of Michigan, Plaintiff and Appellee, v. Douglas A. SHILLINGS, Defendant and Appellant |
Court | Court of Appeal of Michigan — District of US |
Robert G. Gemuend, Ionia, for appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Walter M. Marks, Pros. Atty., Ionia County, Ionia, for appellee.
Before QUINN, P.J., and FITZGERALD and HOLBROOK, JJ.
On January 12, 1966, in the circuit court for Ionia county, the defendant pleaded guilty to escape 1 and was sentenced on January 14, 1966, to prison for a term of 2 to 4 1/2 years to run consecutively with any sentence then being served by defendant.
On March 14, 1966, defendant presented a motion for withdrawal of plea of guilty, vacating of sentence and granting new trial which was denied March 23, 1966. Defendant has taken this appeal from such denial and raises the following two questions for review: (1) Did the trial court abuse its discretion by denying defendant's motion to withdraw his plea of guilty, vacating sentence and order for new trial? (2) Did the trial court abuse its discretion in denying defendant's petition to compel witnesses to appear and testify on behalf of the defendant on the motion?
The record discloses the following pertinent facts, viz., on December 6, 1965, defendant was arrested and brought before a justice of peace for the city of Ionia. At that time without benefit of counsel, defendant waived examination and was bound over to circuit court for trial. On December 7, 1965, he appeared in circuit court and requested counsel be appointed for him. Present counsel on this appeal was at that time duly appointed to represent him. On January 7, 1966, defendant moved for a remand to the magistrate for examination, which was granted the same day. On January 12, 1966, defendant with his counsel present again waived examination and was bound over to the circuit court for trial. On the same day he appeared in circuit court for arraignment with his attorney present. The transcript of the proceedings discloses in part the following:
'You also stated that you have been counseled by your attorney as to just what this charge is all about, is that correct?
'Defendant: Yes, sir.
'By the Court:
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'Did I ask you if anybody made any kind of mild or strong threats to you to induce you to make this plea of guilty?
In defendant's motion to withdraw his plea of guilty, vacate sentence and for order of a trial he stated that he
'did through mistake and inadvertence, neglect to plead in his own defense that he left the premises of the Michigan Reformatory on or about the 6th day of November, 1965 after having received permission to do so from the custodial officer having him in charge.'
In support of said motion defendant signed and filed an affidavit which in substance is as follows:
'That this deponent was thereafter apprehended and thereafter was charged with the crime of escape to which he plead guilty on the 12th day of January, 1966.'
After the motion was filed and noticed for hearing on March 23, 1966, defendant contracted his attorney by phone and requested that a petition be presented to the court for an order to compel the presence of defendant's fellow prisoners who were present at the time of the conversation with Fred Culp, custodial officer to testify on the motion. Such a petition was filed on March 17, 1966, and served on the prosecuting attorney the same day. This motion was denied upon the premise that such witnesses could only verify that which defendant had represented in his motion and affidavit and assuming the same to be true, it was insufficient to grant defendant relief.
On November 7, 1962, in the Genesee county circuit court the defendant was sentenced to prison for a term of 2 to 5 years for the unlawful driving away of an automobile. 2 This sentence was in compliance with the indeterminate sentence act. 3 The defendant upon being sentenced to prison came under the jurisdiction of the department of corrections 4 specifically the bureau of penal institutions of said department. 5 The release of defendant prior to serving the maximum term of such sentence is and was governed by the bureau of pardons and paroles, specifically the parole board, also a part of said department. 6 Unless pardoned or his sentence commuted by the governor 7 or granted a new trial, 8 the defendant sentenced to prison was required to serve the maximum term unless paroled after a hearing of the parole board and issuance of a parole order. 9 Defendant's motion and supporting affidavit failed to assert any of the above permissive ways to shorten the maximum term he was then serving and therefore defendant's motion did not and could not raise any possible basis for granting relief.
Defendant on his arraignment readily admitted when he offered his plea of guilty that he had no authority to leave the prison. The trial judge was very careful to throughly inform the defendant of his rights and the nature and elements of the offense. The trial judge interrogated defendant at length so as to be assured that his plea of guilty was freely, voluntarily, and understandingly made and that it was not the result of any promises made to him and that no threats, force or duress was used in order to induce such a plea.
We are convinced that the judge fully satisfied the requisites of C.L.1948, § 768.35 (Stat.Ann.1954 Rev. § 28.1058) and GCR
The withdrawal of a plea of guilty after sentence has been imposed rests in the sound discretion...
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