People v. Thew

• Citation: 506 N.W.2d 547,201 Mich.App. 78
• Decision Date: 02 August 1993
• Docket Number: Docket No. 145357
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John William THEW, Defendant-Appellant.
• Court: Court of Appeal of Michigan (US)

Page 547

506 N.W.2d 547

201 Mich.App. 78

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John William THEW, Defendant-Appellant.

Docket No. 145357.

Court of Appeals of Michigan.

Submitted Sept. 24, 1992, at Lansing.

Decided Aug. 2, 1993, at 9:35 a.m.

Released for Publication Oct. 19, 1993.

Frank J. Kelley, Atty. Gen., Thomas L. Casey, Sol. Gen., Nicholas J. Jacobs, Pros. Atty., and William E. Molner, Asst. Atty. Gen., for the People.

Lori, Jaspen & Stopczynski, P.C. by Kenneth M. Stopczynski, Iron Mountain, for defendant on appeal.

Before MICHAEL J. KELLEY, P.J., and SHEPHERD and FITZGERALD, JJ.

SHEPHERD, Judge.

Defendant appeals as of right from a September 4, 1991, decision of the trial court denying his motion to withdraw his guilty plea to the charge of first-degree felony murder, M.C.L. § 750.316; M.S.A. § 28.548. We remand.

I

Defendant was charged with one count of first-degree murder, M.C.L. § 750.316; M.S.A. § 28.548, and one count of first-degree felony murder, M.C.L. § 750.316; M.S.A. § 28.548, for killing an eleven-year-old girl who died as a result of being run over and dragged underneath defendant's automobile in Gogebic County on February 15 or 16, 1991. After waiving his preliminary examination, defendant entered pleas of not guilty at the arraignment on April 2, 1991. On June 25, 1991, defendant offered to plead guilty to the charges without the benefit of a plea agreement. At the plea hearing, the trial court found a sufficient factual basis to accept defendant's plea of guilty of first-degree felony murder, but not first-degree murder. This finding was based upon defendant's admissions that he killed the victim while committing first-degree criminal sexual conduct. M.C.L. § 750.520b(1)(a); M.S.A. § 28.788(2)(1)(a) [victim under thirteen years of age].

Subsequently, on July 25, 1991, the trial court granted defense counsel's motion to withdraw as counsel for defendant. On August 26, 1991, defendant filed a motion to withdraw his plea of guilty, which the court denied on September 4, 1991. On September 26, 1991, defendant was sentenced to the mandatory term of life imprisonment without parole.

II

MCR 6.310(B) states the standard of review that governs motions to withdraw guilty pleas:

Withdrawal Before Sentence. On the defendant's motion or with the defendant's consent, the court in the interest of justice may permit an accepted plea to be withdrawn before sentence is imposed unless withdrawal of the plea would substantially prejudice the prosecutor because of reliance on the plea. If the defendant's motion is based on an error in the plea proceeding, the court must permit the defendant to withdraw the plea if it would be required by MCR 6.311(B).

In People v. Spencer, 192 Mich.App. 146, 150, 480 N.W.2d 308 (1991), this Court stated:

Under MCR 6.310, the use of the term "may" denotes that the trial court has discretion to allow the withdrawal of the plea before sentencing if withdrawal is in the interest of justice and the withdrawal does not substantially prejudice the prosecutor because of reliance on the plea.

This Court, interpreting the phrase "in the interest of justice" in light of the discussion contained in 3 ABA Standards for Criminal Justice (2d ed), Standard 14-2.1(a), further remarked:

Accordingly, in order to withdraw a guilty plea before sentencing, the defendant must first establish that withdrawal of the plea is supported by reasons based on the interests of justice. If sufficient reasons are provided, the burden then shifts to the prosecution to demonstrate substantial prejudice. To constitute substantial prejudice, the prosecution must show that its ability to prosecute is somehow hampered by the delay. This would appear to require more than mere inconvenience in preparing for trial. Ultimately, the trial judge should bear in mind what is in the interests of justice in deciding if a plea may be withdrawn. Accordingly, what constitutes substantial prejudice may vary from case to case. [192 Mich.App. at 151, 480 N.W.2d 308.]

III

MCR 6.302 provides that a trial court may not accept a plea of guilty unless it is convinced that the plea is understanding, voluntary, and accurate. In In re Valle, 364 Mich. 471, 477, 110 N.W.2d 673 (1961), the Supreme Court stated:

In order to be accepted, a plea of guilty in a criminal case must be entirely voluntary by one competent to know the consequences, and should not be induced by fear, misapprehension, persuasion, promises, inadvertence or ignorance.

Defendant first argues that his guilty plea was not understandingly given because the trial court failed to advise him that the crimes of which he was pleading guilty carried mandatory sentences of life imprisonment without parole. We disagree.

During the plea-taking process, the following colloquy occurred:

[The Court ]: As to either of these charges the penalty is life imprisonment without parole. The sentencing judge, if you were convicted of either of these charges, has no discretion whatever but to sentence you to life in prison without parole. Do you understand that, sir?

[The Defendant ]: Yes.

Despite the fact that defendant has only a seventh-grade education and claims that he suffers from serious psychiatric problems, the record shows that he understood that he would be sentenced to life imprisonment without parole if the trial court accepted his plea of guilty of first-degree felony murder.

Furthermore, there is no basis to defendant's assertion that he understood that he had to enter a plea of guilty in order to receive psychiatric treatment. Although defendant now claims that he pleaded guilty in order to receive such treatment, the record shows otherwise:

[The Court ]: ... Now, has anybody promised you in any way or hinted to you in any that things would go easy with you; that you wouldn't get the penalty prescribed by law if you offered a plea of guilty at this time?

[The Defendant ]: No, they haven't.

* * * * * *

[The Court ]: Is it your intention to appear before this Court today and offer a plea of guilty to first degree murder of your own free choice; of your choice alone?

[The Defendant ]: Yes.

[The Court ]: Why do you wish to offer a plea of guilty to this crime, Mr. Thew? You stated it's of your choice.

[The Defendant ]: Because I did it and it's wrong and I should be punished for it.

Defendant further stated that he had discussed with his lawyer on several occasions his intention to offer a guilty plea and that he had been considering pleading guilty "for the last month." On the basis of defendant's statements, the trial court concluded that "he is pleading guilty of his own free choice in this case; without threat, without promise, his own volitional act after careful consideration over a period of time."

Nor is there any basis to defendant's claim that his plea was coerced because he was isolated from the general population in the Gogebic County Jail and placed in a special detoxification cell from February 17, 1991, until June 25, 1991. In People v. Smith, 182 Mich.App. 436, 442, 453 N.W.2d 257 (1990), this Court reiterated the well-established rule that detention itself has never been recognized as so inherently coercive that it will render a guilty plea invalid.

Moreover, while defendant was segregated from the general population and placed in a detoxification cell because the sheriff of Gogebic County learned that some inmates at the jail had made threats against defendant, the record shows that he received basically the same treatment and had the same privileges as the other inmates. Further, defendant made no complaints to the sheriff regarding the conditions at the jail during his confinement. As the trial court found in ruling on the motion to withdraw the plea of guilty:

I do not believe that his environment at the Gogebic County Jail was such as to coerce him to offer a plea of guilty, the consequence of which would require him to be incarcerated for the rest of his life. Although, those conditions at the Gogebic County Jail in the detox cell are obviously less than desirable to any of us, Mr. Thew's decision to plead guilty in this case was based upon a great deal of soul searching over a long period of time with advice of counsel and the visitation by counsel on numerous occasions.

The Court is convinced that his plea of guilty on June 25, and the Court's acceptance of his plea on that date was valid. It appears only now that he has changed his mind since.

IV

Although defendant did not raise it as an issue, we further note that a sufficient factual basis exists to support his plea of guilty of felony murder. ¹

In People v. Jones, 190 Mich.App. 509, 511-512, 476 N.W.2d 646 (1991), this Court observed:

A factual basis to support a plea exists if an inculpatory inference can be drawn from what the defendant has admitted. Guilty Plea Cases, 395 Mich 96, 128-132, 235 NW2d 132 (1975). This holds true even if an exculpatory inference could also be drawn and the defendant asserts that the latter is the correct inference. Id., p 130 . Even if the defendant denies an element of the crime, the court may properly accept the plea if an inculpatory inference can still be drawn from what the defendant says. People v. Haack, 396 Mich 367, 374-375; 240 NW2d 704 (1976).

Felony murder consists of

(1) [t]he killing of a human being (2) with the intent to kill, to do great bodily harm, or to create a high risk of death or great bodily harm with knowledge that death or great bodily harm was the probable result (3) while committing, attempting to commit, or assisting in the commission of any of the felonies specifically enumerated in MCL 750.316; MSA 28.548. [Emphasis added. People v. Bush, 187 Mich.App. 316, 327, 466 N.W.2d 736 (1991).]

Criminal sexual conduct in the first or third degree is one of the felonies specifically enumerated in M.C.L. § 750.316; M.S.A. § 28.548.

In applying the felony-murder rule, this Court...