People v. Zuniga

• Decision Date: 21 October 1974
• Docket Number: Docket No. 17453,No. 3,3
• Citation: 56 Mich.App. 231,223 N.W.2d 652
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Leo ZUNIGA, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 652

223 N.W.2d 652

56 Mich.App. 231

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Leo ZUNIGA, Defendant-Appellant.

Docket No. 17453.

Court of Appeals of Michigan, Division No. 3.

Oct. 21, 1974.

Released for Publication Dec. 13, 1974.

James R. Neuhard, State App. Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., John B. Daugherty, Pros. Atty., Beulah, for plaintiff-appellee.

Before ALLEN, P.J., and J. H. GILLIS and McGREGOR, JJ.

ALLEN, Presiding Judge.

Defendant was charged under M.C.L.A. § 750.336; M.S.A. § 28.568, with taking indecent liberties with a 4-year-old child on March 17, 1972. Approximately five months after the offense, defendant signed a written confession, the voluntariness of which was determined at a Walker-type hearing ¹ held prior to arraignment. Upon arraignment November 1, 1972, defendant pled guilty and was sentenced to 2 1/2 to 10 years in prison. He appealed, and on March 22, 1974, the Court of Appeals granted a motion to remand for an evidentiary hearing to determine the voluntariness of the guilty plea. Following hearing on remand, the trial court found the guilty plea was made voluntarily and denied defendant's motion for a new trial. Defendant appeals; we affirm.

Defendant raises 4 issues of which 2 merit discussion. ² It is claimed that the trial court insufficiently established a factual basis for the crime to which defendant plea guilty. The file does contain evidence detailing the offense charged but, for purposes of our review, it is not the type of evidence which we may consider. ³ Testimony upon arraignment does contain the following colloquy between the court and defense counsel.

'Q. Let me start at the beginning: Do you understand what the charge against you is?

'A. Yeah.

'Q. Can you tell me?

'A. Indecent liberties of a minor.

'Q. But I have to ask you to tell me. What happened?

'A. You mean tell you what happened?

'Q. Yes. I'm required to ask you to do this. It isn't going to bother me; I've heard it before.

'A. Well, it's like I told the officers there. We went up to her house there and the kids were upstairs playin', and I was in the livingroom and that's where it happened.

'Q. All right, what happened?

'A. Well, I started to touch her and everything.

'Q. All right, was she dressed at the time?

'A. Yes.

'Q. And did you remove her clothing?

'A. No.

'Q. What did you remove? What happened?

'A. She removed her clothes herself.

'Q. She did. Then what happened?

'A. Well, I started touchin' her, playin' with her and everything.

'Q. With her private parts?

'A. Yeah, you know.

'Q. You know what I mean by that?

'A. Yeah, I think I do.'

In People v. Kranz, 39 Mich.App. 69, 71, 197 N.W.2d 276 (1972), and People v. Verburg, 44 Mich.App. 320, 324, 205 N.W.2d 315 (1973), this Court held that two elements must be shown to sustain a conviction for taking indecent liberties. First, there must be an assault and second, the liberties taken must be of such a nature as the common sense of society would brand as indecent and improper. Assault is a general intent crime and, therefore, a purposeful touching is all that is required. Though consent may negate assault, a 4-year old is incapable of giving consent. People v. Bennett, 45 Mich.App. 127, 205 N.W.2d 831 (1973). Defense counsel construed the testimony quoted above as evidencing no more than the fact that defendant was playing with The child and accidentally touched her genitals. We read the record as showing that defendant was playing with the child's genitals. In our opinion a fondling of an undressed 4-year-old female's most private parts is an act which the common sense of society would regard as both indecent and improper.

A second claim of error is that the trial court committed reversible error by denying defendant's motion for a new trial where the record showed that defendant's attorney informed him he Might receive a lesser sentence by pleading guilty. The record of the evidentiary hearing on the voluntariness of defendant's guilty plea held pursuant to the Court of Appeals' order discloses that defense counsel suggested, though did not guarantee, a more lenient sentence if defendant would plead guilty. ⁴ This testimony was unrebutted. Appellate counsel argues that unrebutted testimony at the evidentiary hearing clearly discloses that defense counsel induced an expectation of a lighter sentence, which inducement, under the ruling in People v. Guest, 47 Mich.App. 500, 209 N.W.2d 601 (1973), and People v. Koryba, 51 Mich.App. 365, 214 N.W.2d 845 (1974), is reversible error.

Koryba, supra, is distinguishable because defense counsel's statement amounted to a flat assurance the minimum sentence would be increased by one year. In the case before us the record at best, discloses that in counsel's opinion the sentence 'might be' less if a plea were taken. Guest, supra, too, is distinguishable in that its narrow holding was only to remand for an evidentiary hearing and not, as here, order a new trial following the evidentiary hearing. Further, Guest speaks in terms of coercing a plea as distinguished from advising, short of coercion.

'Where, as here, it is alleged that counsel Coerced a plea, the trial court should have taken testimony to ascertain the fact of the allegation. Where he does not, the cause must be remanded for that purpose.' (Emphasis supplied.) 47 Mich.App. 500, 502--503, 209 N.W.2d 601, 602.

But if Guest does go so far as to hold that mere advice of counsel is in itself coercion, then this panel does not concur with Guest. To so hold is in conflict with the weight of authority.

'Advice or representations of counsel. While bad advice or inaccurate representations by accused's own counsel as to the consequences of a plea of guilty under the particular circumstances are not sufficient to vitiate a plea of guilty as involuntary, in the absence of proof that the judge or the prosecuting attorney, or other state officer participated in the alleged misrepresentation, it is otherwise if the statements of the attorney amount to an unqualified factual representation that the state or a responsible officer thereof, such as a judge of competent authority or a district attorney, has entered into a bargain purporting to commit the state to give accused a reward, in the form of immunity or lesser punishment, in exchange for a plea of guilty, where such representation is apparently substantially corroborated by acts or statements of a responsible state officer, relied on by accused, and operating to preclude his exercise of free will.' 22 C.J.S. Criminal Law § 423(5), pp. 1187--1188.

Whether an attorney's statement is in itself coercion depends upon whether the statement is a prediction estimating leniency or whether it is an absolute promise. The recent case of People v. Carmichael, 17 Ill.App.3d 249, 307 N.E.2d 770 (1974), is illustrative. Defendant had been placed on 5 years probation pursuant to a guilty plea to indecent liberties with a child. Later, he was charged in a separate and unrelated offense with assault to whch he also pleaded guilty and was again placed on probation for one year. However, as a consequence of his second guilty plea, the first trial court found defendant had violated his probation and sentenced him to a term of 4 years to 4 years and 1 day. In a post-conviction motion, defendant alleged that his plea of guilty to a charge of assault was induced by his own attorney's representation that an agreement had been reached with the first trial court under which his probation would not be revoked. Ruling against defendant's contention the court said:

'However, a guilty plea made in reliance upon advice of counsel estimating defendant's chances of acquittal, and expected sentencing, is a voluntary plea. The mere fact that an accused, knowing his rights and the consequences of his act, hopes and believes that he will receive a shorter sentence or milder punishment by pleading guilty than he would upon a trial and conviction by a jury, presents no ground for permitting the withdrawal of the plea after he finds that his expectation has not been realized. (People v. Grabowski (1957), 12 Ill.2d 462, 468, 147 N.E.2d 49, 52; People v. Morreale (1952), 412 Ill. 528, 532, 107 N.E.2d 721, 724.) Thus, the question we must decide is whether there was sufficient evidence before the court...