180 N.W.2d 201 | Mich. Ct. App. | 1970
PEOPLE
v.
DORNER
Michigan Court of Appeals.
*307 Harry T. Cook, for defendant on appeal.
Before: HOLBROOK, P.J., and BRONSON and MUNRO,[*] JJ.
PER CURIAM.
Defendant entered a voluntary plea of guilty to breaking and entering a drug store on February 7, 1969, with intent to commit larceny therein. MCLA § 750.110 (Stat Ann 1970 Cum Supp § 28.305). Sentence was from 2-1/2 to 10 years. On appeal, defendant requests withdrawal of the guilty plea, contending that his answers to the court at the plea acceptance hearing were prompted by promises allegedly made to him by the sheriff and probation officer that by entering a guilty plea his sentence would be probation.
There is no basis in the record for the claim advanced upon appeal that the defendant "was lured and induced" to plead guilty by "an expectation of leniency".
The following question was asked at arraignment:
"Q. Has anyone told you that some kind of a special arrangement would be made, that if you entered a guilty plea you'd get a particular kind of treatment or some special consideration?
"Mr. Dorner: No, sir."
In the sentence record the court asked the following questions:
"Q. Is there anything that you would like to say to the court before the court disposes of your case?
"A. No, but there's one thing I'd like to ask.
"Q. All right.
"A. If I'm going to be sentenced to Jackson how is my wife going to take care of herself seeing how she's going to have a baby in October."
*308 The defendant's participation in the commission of the crime was adequately established by direct questioning of the defendant, as required by People v. Barrows (1959), 358 Mich. 267, 272; the defendant stated, "I broke through a door" and later, "I went inside and found two cash registers there and I proceeded to empty them."
Defendant's assertion that his plea was not voluntary is made for the first time in this appeal. A reading of the transcript of the arraignment discloses a thorough and careful questioning of the defendant by the trial judge, which establishes, in so far as the record is concerned, that the defendant's plea of guilty was voluntary and not the result of any promises made to him of probation or leniency. In the defendant's brief he refers to an affidavit, which we fail to find in the file on appeal. The proper forum for such an issue to be determined is in the trial court by way of a motion to withdraw the plea of guilty, set aside the judgment, and for a new trial. This the defendant has not done. We therefore affirm, without prejudice to the defendant to file such a motion in the circuit court for Kalkaska County. We do not retain jurisdiction of this matter.
Affirmed without prejudice.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
