People v. Sylvester, Docket No. 48090

• Citation: 303 N.W.2d 230,103 Mich.App. 499
• Decision Date: 04 February 1981
• Docket Number: Docket No. 48090
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James Roy SYLVESTER, Defendant-Appellant. 103 Mich.App. 499, 303 N.W.2d 230
• Court: Court of Appeal of Michigan — District of US

Page 230

303 N.W.2d 230

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James Roy SYLVESTER, Defendant-Appellant.

Docket No. 48090.

103 Mich.App. 499, 303 N.W.2d 230

Court of Appeals of Michigan.

Feb. 4, 1981.

Released for Publication March 23, 1981.

[103 MICHAPP 500] James R. Neuhard, State Appellate Defender, Terence R. Flanagan, Asst. State Appellate Defender, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Robert L. Kaczmarek, Pros. Atty., William D. White, Asst. Pros. Atty., for plaintiff-appellee.

Before KELLY, P.J., and ALLEN and HORN, ^* JJ.

KELLY, Presiding Judge.

Defendant was charged with open murder, contrary to M.C.L. § 750.316; M.S.A. § 28.548, as a result of the fatal shooting of Arthur Sanders in Saginaw, Michigan, on April 24, 1978. On January 17, 1979, the scheduled date of defendant's[103 MICHAPP 501] trial, the parties reached agreement on a plea bargain. The terms of the agreement required the defendant to plead guilty to second-degree murder, contrary to M.C.L. § 750.317; M.S.A. § 28.549, and the prosecutor to drop the open murder charge and other charges relating to a stolen credit card. On March 30, 1979, the scheduled date for sentencing, the defendant moved to withdraw his plea under a claim that he had procured witnesses to "mitigate the circumstances" of the shooting. The trial court held that the defendant's plea had been voluntary and accurate and denied the motion. A subsequent motion for a new trial was also denied. Defendant appeals as of right.

Defendant first alleges error in the trial court's decision denying his motion to withdraw the guilty plea. He argues that the reasons asserted for withdrawal were not frivolous, that a claim of innocence was made and that the "great liberality" standard for granting such motions should have been applied to grant his petition. We disagree.

In People v. Bentley, 94 Mich.App. 19, 21-22, 287 N.W.2d 355 (1979), the majority summarized the criteria a trial court is to apply to a motion to withdraw a prior guilty plea:

"In Michigan, a defendant's withdrawal of her guilty plea is a matter of right when it occurs prior to the court's acceptance. People v. Serr, 73 Mich.App. 19, 250 N.W.2d 535 (1976). After the plea has been accepted, withdrawal is within the sound discretion of the court. Id. However, such motions are to be treated with great liberality. People v. Hatcher, 83 Mich.App. 307, 268 N.W.2d 389 (1978); People v. Price, 85 Mich.App. 57, 270 N.W.2d 707 (1978). In this regard, our Supreme Court has said that where '* * * a defense of innocence is asserted at the time of a request to withdraw a plea, and the request is not obviously frivolous and is made [103 MICHAPP 502] before the commencement of trial and before sentence, the plea (sic) should be granted'. People v. Bencheck, 360 Mich. 430, 433, 104 N.W.2d 191 (1960); People v. Lewandowski, 394 Mich. 529, 232 N.W.2d 173 (1975); People v. Love, 72 Mich.App. 413, 250 N.W.2d 94 (1976); People v. Hayes, 70 Mich.App. 580, 246 N.W.2d 154 (1976)."

See also People v. Boomer, 99 Mich.App. 353, 297 N.W.2d 663 (1980).

In Bentley, the Court found valid the defendant's motion to withdraw, where the petition was accompanied by a claim of innocence and record support for the defendant's assertion of a plea made under extreme emotional distress. The instant facts differ markedly from those in Bentley. Initially, we note that the defendant's motion was not truly accompanied by a claim of innocence. Rather, defense counsel informed the lower court that the newly found witnesses would "mitigate the circumstances" of the shooting. Also, the record does not exhibit evidence of the defendant's inability to produce such witnesses at trial which may have led to his consequent decision to enter a plea to second-degree murder. Our review of the record indicates a plea given voluntarily, without coercion by the prosecutor. In light of this voluntary plea and the defendant's explicit description of the circumstances surrounding the shooting, we conclude that the rationale for withdrawal asserted below was unsubstantiated. Without more, the defendant's bare allegation that new witnesses were available did not require the lower court to exercise its discretion in favor of the motion to withdraw. ¹

[103 MICHAPP 503] The instant case more closely resembles the facts in People v. Price, 85 Mich.App. 57, 270 N.W.2d 707 (1978). In Price, the Court found frivolous the defendant's motion for withdrawal based upon a claim that pretrial incarceration induced the plea. In evaluating the validity of the plea, entered on the date scheduled for trial, the Court noted the lengthy period of time for preparation accorded the defendant (over one year) and the substantial investment of funds incurred by the prosecution to prepare for trial. The Court viewed defendant Price's motion for withdrawal as a mere delaying tactic, not included within the standard of great liberality.

The present decision resembles Price in two significant aspects. First, the defendant had a period of almost nine months during which to procure his witnesses. Second, his plea was given on the day of trial after the prosecution invested substantial sums to subpoena its own witnesses, two of whom were to come from Los Angeles. As in Price, we find the facts herein render the standard of great liberality not applicable to the lower court's decision. Thus, no error arose from the trial court's refusal of defendant's motion to withdraw.

The defendant secondly claims reversible error arising from the trial court's failure to inform him that second-degree murder is a nonprobationable offense, as required by GCR 1963, 785.7(1)(f). At [103 MICHAPP 504] the plea-taking, the trial court questioned defendant in pertinent part as follows:

"The Court : Your attorney has indicated to the Court that you are entering a plea of guilty to an amended Information which includes Count II and is murder in the second degree, is that correct?

"The Defendant : That's correct.

"The Court : Are you pleading guilty to that charge?

"The Defendant : Yes, sir.

"The Court : Have you discussed the matter of this plea with your attorney?

"The Defendant : Yes, sir.

"The Court : Do you understand the nature of the charge made against you?

"The Defendant : Yes, sir.

"The Court : And are you freely and voluntarily pleading guilty to that charge?

"The Defendant : Yes, sir.

"The Court : Do you understand that you are pleading guilty to a felony and the maximum penalty is life or any term of years in prison?

"The Defendant : Yes."

This Court has split on the precise issue raised by the defendant. In People v Lendzian, 80 Mich.App. 323, 263 N.W.2d 360 (1977), the Court, in a case not involving a sentence agreement, found no reversible error arising from the trial court's failure to comply with GCR 1963, 785.7(1)(f). The Court concluded that because the trial court read the armed robbery statute to the defendant (which statute contains the possible maximum and minimum sentences imposable), and defendant expressed his understanding of the potential punishment, no strict adherence to the rule was required. ² The more recent case of People v. [103 MICHAPP 505] Jones, 94 Mich.App. 232, 288 N.W.2d 385 (1979), reached a similar conclusion. The Jones Court also noted that the defendant was a previous offender with some presumed knowledge of the law, that he was on parole and knew the consequences of his parole violation, and that the offense (second-degree murder) was a grievous one, as factors eliminating any expectation of probation. A more recent panel, in People v. Thalacker, 99 Mich.App. 372, 375, 297 N.W.2d 670 (1980), reached a different result:

"We are forced to conclude that both Lendzian and Jones, supra, were wrongly decided. The clear import of GCR 1963, 785.7(1)(f) is that a defendant must be told that he will serve some time in prison if he chooses to enter a plea. Under (People v. Freeman, 73 Mich.App. 568, 252...