338 N.W.2d 199 | Mich. Ct. App. | 1983
PEOPLE
v.
BAUGH
Michigan Court of Appeals.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Michael W. LaBeau, Prosecuting Attorney, and James G. Petrangelo, Assistant Prosecuting Attorney, for the people.
State Appellate Defender (by Sheila N. Robertson), for defendant on appeal.
*246 Before: V.J. BRENNAN, P.J., and M.J. KELLY and J.M. GRAVES,[*] JJ.
PER CURIAM.
On October 22, 1981, after informing the lower court that he wished to proceed without an attorney, defendant pled guilty to violation of his probation. He was sentenced to serve a term of from 4 to 14 years in prison. He now appeals as of right, centering his arguments on the allegation that, in initially accepting defendant's plea of guilty to probation violation, the trial court failed to comply with GCR 1963, 791.5(b), which became effective May 14, 1981.[1]
Defendant was scheduled to be sentenced on November 12, 1981. On that date, after reviewing the presentence report, the court informed the defendant that "it appears that we have a very serious situation here, that could well merit a prison sentence". The court then advised defendant to allow the court to appoint an attorney on his behalf and to allow the attorney to consider a motion to withdraw the guilty plea. In fact, the court indicated three separate times that it would entertain a motion to withdraw defendant's plea. Defendant consented to having an attorney appointed on his behalf and sentencing was adjourned. *247 Although appointed counsel apparently thoroughly investigated the presentence report, resulting in two additional sentencing dates being adjourned to allow counsel to pursue his investigation more completely, counsel never moved to withdraw defendant's plea.
Defendant's failure to move below to withdraw his plea has waived this issue for purposes of appeal. See People v Carroll, 396 Mich 408, 412; 240 NW2d 722 (1976); People v Stinson, 88 Mich App 672, 674; 278 NW2d 715 (1979). Defendant and his counsel had more than ample opportunity to move to withdraw defedant's plea before sentencing. The record reveals zealous and effective representation of defendant by his counsel. Counsel apparently thought it would be in defendant's best interest not to move to withdraw his plea. Absent a finding of manifest injustice in allowing defendant's plea to stand, we decline to reverse.
Affirmed.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
[1] GCR 1963, 791.5(b) provides:
"(b) Before the court accepts a guilty plea, it shall, speaking directly to the probationer and receiving the probationer's response,
"(1) personally advise the probationer that by pleading guilty the probationer is giving up the right to a contested revocation hearing, the right to be represented by a lawyer, and the right to an appointed lawyer if the probationer is unable to afford a lawyer;
"(2) personally advise the probationer of the maximum possible sentence for the offense that led to probation;
"(3) satisfy itself that the plea is understandingly, voluntarily, and knowingly made; and
"(4) establish support for a finding that the probationer is guilty of the violation charged."
