People v. Wilkens

• Decision Date: 22 February 1985
• Docket Number: Docket Nos. 72673,76022
• Citation: 139 Mich.App. 778,362 N.W.2d 862
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Lawrence WILKENS, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 862

362 N.W.2d 862

139 Mich.App. 778

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Lawrence WILKENS, Defendant-Appellant.

Docket Nos. 72673, 76022.

Court of Appeals of Michigan.

Submitted Sept. 7, 1984.

Decided Dec. 18, 1984.

Released for Publication Feb. 22, 1985.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William F. Delhey, Pros. Atty., and Marilyn Eisenbraun, Asst. Pros. Atty., for the People.

Ellis B. Freatman, III, Ypsilanti, for defendant-appellant.

Before DANHOF, C.J., and KELLY and KAUFMAN, ^* JJ.

PER CURIAM.

This case involves two appeals from the withdrawal and reinstatement of defendant's pleas of guilty to first-degree criminal sexual conduct, M.C.L. Sec. 750.520b(1)(e); M.S.A. Sec. 28.788(2)(1)(e), and to carrying a concealed weapon, M.C.L. Sec. 750.227; M.S.A. Sec. 28.424. Defendant was sentenced to 12 to 20 years for the criminal sexual conduct conviction, from which he appeals as of right. Defendant was sentenced to 1 1/2 to 5 years for the weapon conviction, from which he appeals by leave granted.

Defendant was charged with criminal sexual conduct, first degree, for raping a woman in her home in Ann Arbor on July 15, 1982. After being bound over, he was released on bond. While out on bond, he was arrested and charged with carrying a pistol in his vehicle, M.C.L. Sec. 750.227; M.S.A. Sec. 28.424, after two officers spotted him carrying two uncased shotguns inside the back window of his truck and, after stopping him, found a .22-caliber magnum revolver in the passenger compartment of the truck. The victim of the July 15 rape realized it must also have been defendant who raped her on June 11, 1982, under similar circumstances, breaking into her house around 3 a.m., awakening her and raping her at knife-point. Thus, defendant was additionally charged with first-degree criminal sexual conduct for the June 11, 1982, incident. He also had an unrelated breaking and entering charge pending against him.

As of December 10, 1982, defendant had at least four actions pending against him in Washtenaw County courts. On that day, defendant pled guilty as charged to the July 15 rape, and the June 11 rape charge was dropped. The prosecutor was allowed to amend the information on the original weapon charge to include carrying a concealed weapon on the person. Defendant pled guilty to carrying a concealed weapon on his person, and the charge of carrying a weapon in a motor vehicle was dismissed, as was the breaking and entering charge.

On January 11, 1983, the Supreme Court released its opinion in People v. Killebrew, 416 Mich. 189, 330 N.W.2d 834 (1982), ruling that a defendant must be given the opportunity to withdraw a guilty plea if the trial court rejected the sentence recommended by the prosecutor or if the trial court participated in discussions aimed at reaching a plea agreement. At the end of its opinion, the Court ruled that Killebrew should be applied:

"(1) to all future trial court decisions where the defendant moves the sentencing court to vacate the sentence and withdraw the plea; (2) to all appeals or applications for leave to appeal filed prior to the date of this opinion where the issue is properly raised; and (3) to the two instant cases." 416 Mich. 212, 330 N.W.2d 834.

On February 18, 1983, the Supreme Court issued the following order, clarifying the retroactivity of the ruling in Killebrew (and its companion case, People v. Briggs ):

"On further consideration we have determined that the rules announced in People v Killebrew and People v Briggs are to be applied only to those two cases and to cases in which guilty pleas have been accepted after the January 11, 1983 release of the opinion in People v Killebrew and People v Briggs." 416 Mich. 216, 330 N.W.2d 834.

Defendant's guilty pleas had been accepted prior to Killebrew, but he had not yet been sentenced. On February 18, 1983, the date set for sentencing, the Washtenaw County Circuit Court judge offered to allow defendant to withdraw his plea, believing that he was required to do so under Killebrew:

"The Court cannot be bound by its prior sentence agreement in any way, and I do feel, since I know that many cases are what we call pre-Killebrew cases and the defendant has taken some position, that is, offered a plea, that he has moved in detrimental reliance on whatever that was, I feel that I morally cannot sentence any harsher than I may have agreed to do earlier without allowing the defendant to set aside his plea voluntarily on my part, but first, you would have the right, under the Killebrew case, to set aside your plea in this instance and--in any event--and secondly, the nature of the agreement was such that I don't want you to feel I am bound in any way under it."

At defense attorney's request, court was adjourned to allow defendant to decide whether to withdraw his pleas.

At a hearing held on February 22, 1983, defendant indicated that he wished to withdraw his pleas. He also requested that the charges pending against him be assigned to a different judge. Both the prosecutor and the court repeated their beliefs that defendant had a right to withdraw his plea under Killebrew, still unaware of the Supreme Court's modification of Killebrew 's application. The judge denied defendant's motion to disqualify him, without prejudice to defendant's filing a formal written motion to disqualify.

On March 21, 1983, the prosecutor filed a motion to reinstate defendant's guilty pleas based on the Supreme Court's order of February 18, 1983, modifying Killebrew's retroactive application. Hearing on the motion was held April 1, 1983. Defense counsel stated that defendant did not want his pleas reinstated, asserting that defendant wished "to effectuate" his right to trial by jury. The court replied that it had erred in allowing defendant to set aside his plea. The court could see no reason not to correct the error by reinstating the pleas, since there was no showing that defendant's rights had been prejudiced in any way, there was no detrimental reliance by defendant, nor any consideration for setting aside the plea. The reason it felt bound under Killebrew to permit defendant to withdraw his plea was that the court had promised defendant that it would abide by the presentence report recommendation, unless it recommended less than 15 years. The court explained that now it could not be bound in any way to promises of sentence. The pleas were thus reinstated.

Defendant argues on appeal that, once a guilty plea is withdrawn, it is a nullity and there is nothing to reinstate. The cases on which he relies in support of this proposition, however, Kercheval v. United States, 274 U.S. 220, 47 S.Ct. 582, 71 L.Ed. 1009 (1927), People v. Street, 288 Mich. 406, 284 N.W. 926 (1939), and People v. George, 69 Mich.App. 403, 245 N.W.2d 65 (1976), involved use of a withdrawn guilty plea as substantive evidence of defendant's guilt or for impeachment of defendant's assertion of innocence at a subsequent trial. Reinstatement of the plea was not at issue. To the contrary, in People v. Kosecki, 73 Mich.App. 293, 251 N.W.2d 283 (1977), this Court approved reinstatement of defendant's guilty plea after defendant had withdrawn it. Similarly, in United States v. Farrah, 715 F.2d 1097 (CA 6, 1983) cert. den. --- U.S. ----, 104 S.Ct. 2343, 80 L.Ed.2d 817 (1984), the Sixth Circuit approved reinstatement of a Michigan defendant's guilty plea, which the court had permitted defendant to withdraw under the mistaken belief that defendant had been misled as to the length of incarceration. The Court adopted the reasoning of United States v. Jerry, 487 F.2d 600 (CA 3, 1973), which also upheld reinstatement of a guilty plea where the court determined that, although the Federal Rules of Criminal Procedure did not specifically provide for modifying or setting aside an order entered through mistake, it had always been within the court's power to grant relief from orders entered erroneously, as long as that power was exercised in justice and good conscience.

Michigan court rules provide in GCR 1963, 528.3:

"On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: (1) mistake * * * (5) * * * a prior judgment upon which it is based has been reversed or otherwise vacated, * * *."

In this case, permission to withdraw the guilty pleas was granted under the mutually mistaken belief that the court was required under Killebrew to do so. The "judgment" on which this determination was based, Killebrew, was not technically reversed or otherwise vacated. Nevertheless, GCR 1963, 528.3(5) applies to this case because the Supreme Court's order of February 22, 1983, specifically and completely invalidated the retroactivity of Killebrew assumed by the parties in this case, even though Killebrew itself had not been reversed or vacated. The judge did not err in reinstating the pleas in this case.

Defendant contends that the judge also erred in denying his motion to withdraw the pleas once they were reinstated. There is no right to withdraw a guilty plea once it is accepted. People v. Hale, 99 Mich.App. 177, 180, 297 N.W.2d 609 (1980). However, such requests to withdraw...