People v. Sledge

• Court: Court of Appeal of Michigan
• Writing for the Court: Before DOCTOROFF; PER CURIAM
• Citation: People v. Sledge, 503 N.W.2d 672, 200 Mich.App. 326 (Mich. App. 1993)
• Decision Date: 16 February 1993
• Docket Number: Docket No. 149730
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Cleophus Dewayne SLEDGE, Defendant-Appellant. (On Rehearing)

Page 672

503 N.W.2d 672

200 Mich.App. 326

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Cleophus Dewayne SLEDGE, Defendant-Appellant. (On Rehearing)

Docket No. 149730.

Court of Appeals of Michigan.

Submitted Nov. 18, 1992, at Detroit.

Decided Feb. 16, 1993, at 9:00 a.m.

Submitted on Rehearing March 23, 1993.

Decided on Rehearing

June 22, 1993, at 9:30 a.m.

Released for Publication Aug. 24, 1993.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., John D. O'Hair, Pros. Atty., Timothy A. Baughman, Chief of Research, Training, and Appeals, and Jeffrey Caminsky, Asst. Pros. Atty., for the People.

Philip X. Walling, Detroit, for defendant-appellant on appeal.

Before DOCTOROFF, C.J., and MURPHY and MARK J. CAVANAGH, JJ.

PER CURIAM.

This case is here on rehearing. In an attempt to clarify our earlier holding, 198 Mich.App. 218, 497 N.W.2d 582 (1993), we offer the following opinion.

Defendant, Cleophus D. Sledge, pleaded guilty of armed robbery, M.C.L. § 750.529; M.S.A. § 28.797, and was sentenced to a prison term of ten to twenty-five years. In this appeal, brought as of right, defendant contends that he was entitled to an evidentiary hearing regarding his claim that the guilty plea was induced by a promise by his attorney that he would receive a lesser sentence than the one imposed. We agree and remand for an evidentiary hearing.

According to the record, defendant filed a motion to withdraw his plea or for an evidentiary hearing, alleging that his plea was not knowingly, understandingly, or voluntarily made because he did not receive the sentence promised by his attorney. In an affidavit attached to the motion, defendant claimed that he pleaded guilty because his attorney promised him he would be sentenced to no more than three to eight years. Defendant further alleged that before sentencing he had written his attorney requesting to withdraw his plea, but that his attorney did not respond until the day of sentencing, when his attorney told him that it was too late to withdraw the plea. The trial court held a brief hearing regarding defendant's motion and, without receiving testimony or commenting about defendant's allegations, denied his motion.

As early as 1961, our Supreme Court expressed its concern with guilty pleas unlawfully induced. See In re Valle, 364 Mich. 471, 110 N.W.2d 673 (1961). In such a situation, if the evidence established that the plea was induced by an unfulfilled promise of leniency by a prosecutor or a judge, the plea could be withdrawn. Id. at 477-478, 110 N.W.2d 673. The Court went on to explain, in People v. Taylor, 383 Mich. 338, 359, 175 N.W.2d 715 (1970), that the question "[w]hether or not a plea of guilty was offered voluntarily [was] a question of fact." The Court also has stated that remanding for an evidentiary hearing may be warranted where no record has been made by the trial court. People v. Johnson, 386 Mich. 305, 314, 192 N.W.2d 482 (1971). Also see the order of the Supreme Court in People v. Westfield, 406 Mich. 957 (1979), vacating the Court of Appeals decision "insofar as it holds that the defendant is not entitled to an evidentiary hearing" and remanding the matter for an "evidentiary hearing on defendant's claim that his plea was induced by a promise from his attorney that he would receive a lesser sentence than he received. People v. Ginther, 390 Mich 436 [212 NW2d 922] (1973); People v Hall, 399 Mich 288, 291 [249 NW2d 62] (1976)."

Not every defendant who requests to withdraw a plea is entitled to do so, however, nor is every defendant entitled to an evidentiary hearing on a motion to withdraw. A defendant convicted on the basis of a plea may not raise on appeal any claim of noncompliance with the requirements of the court rules that govern guilty pleas unless the defendant has moved to withdraw the plea in the trial court. MCR 6.311(C). Further, the motion must allege some support for the defendant's claim other than the defendant's mere postconviction statement that the plea was induced by a promise of leniency. People v. Schirle, 105 Mich.App. 381, 385, 306 N.W.2d 520 (1981); People v. Rodriguez, 61 Mich.App. 42, 48-49, 232 N.W.2d 293 (1975). To prevail on the motion, "the motion and its supporting affidavits and proofs must satisfy the trial court by a preponderance of credible evidence that the plea was the product of fraud, duress, or coercion." Taylor, supra 383 Mich. at 361, 175 N.W.2d 715.

This Court's approach has not always been consistent. As did our Supreme Court in In re Valle, this Court has held that a defendant may be permitted to withdraw his guilty plea when it is established that the plea was induced by an unfulfilled promise of leniency made by a prosecutor or judge. People v. Walls, 3 Mich.App. 279, 282, 142 N.W.2d 38 (1966). However, this Court also has held that bad advice of defense counsel alone generally is not enough to warrant the withdrawal of a plea. Id. at 282-283, 142 N.W.2d 38. Furthermore, when a defendant states on the record that he has not been promised leniency in exchange for his plea, he ordinarily is held to his denial on the record. People v. Weir, 111 Mich.App. 360, 361, 314 N.W.2d 621 (1981); Schirle, supra 105 Mich.App. at 385, 306 N.W.2d 520; People v. Serr, 73 Mich.App. 19, 28, 250 N.W.2d 535 (1976); People v. Gant, 4 Mich.App. 671, 675, 145 N.W.2d 381 (1966). There also are cases in which this Court has found a defendant's later allegation of promised leniency meritless where the trial court had advised the defendant of the maximum possible penalty and that the court might impose that penalty. People v. Inosencio, 35 Mich.App. 236, 238, 192 N.W.2d 339 (1971); People v. Washington, 23 Mich.App. 638, 639, 179 N.W.2d 259 (1970).

In contrast, we also have held that, under some circumstances, a defense counsel's promise of leniency may serve as a ground for withdrawal of a guilty plea. Weir, supra 111 Mich.App. at 361, 314 N.W.2d 621; Schirle, supra 105 Mich.App. at 385, 306 N.W.2d 520. Although, generally, we will reject this as a basis where the defendant has sworn on the record that no such promise was made, Weir, supra; Schirle, supra; People v. Sanders, 54 Mich.App. 541, 544, 221 N.W.2d 243 (1974); People v. Smith, 52 Mich.App. 731, 736, 218 N.W.2d 151 (1974), a guilty plea may be withdrawn even though the defendant has made such statements on the record if the record contains some support for the defendant's claim, other than the defendant's postconviction allegation. Schirle, supra; Rodriguez, supra.

In addition to this authority, we also bear in mind that remand for an evidentiary hearing...