People v. Hall
224 N.W.2d 62
Mich. Ct. App.
1974
Check Treatment
Per Curiam.

On April 27,1973, defendant-appellant, Richard Bernard Hall, withdrew his plea of not guilty to first-degree murder and pled guilty to the lesser included offense of second-degree murder, MCLA 750.317; MSA 28.549, before Detroit Recorder’s Court Judge John Patrick O’Brien. Hall was sentenced on July 16, 1973, to a term of from 10 to 15 years in prison.

Subsequent to acceptance of the guilty plea, but prior to sentencing, Albert A. Kramer replaced Henry Thuman as Hall’s counsel. On June 21, 1973, a motion to withdraw Hаll’s plea of guilty was filed,* 1 asserting, inter alia, that an examination of the plea transcriрt failed to support the second-degree murder charge. Judge O’Brien denied the motion and proceeded to sentence "as a manslаughter case”.

Hall asserts on this appeal that Judge O’Brien abused his discretion in refusing to grant the motion to withdraw Hall’s guilty plea. On the record beforе us, we are constrained to agree.

*280Hall’s motion was made prior tо sentencing. Because his plea was taken at an early stage in the proceedings, the time ‍​​​​​​‌‌​‌​‌‌​​​‌‌​​‌​‌​​‌​​​​​​​‌‌‌​​​‌​​​​‌‌​​‍and expense of trial commencement, including the impaneling of a jury and subpoenaing of witnesses, was avoided.2

Hall claims that the plea transcript does not support a chargе of second-degree murder. The transcript reveals the following exсhange:

"A. She pushed on me, then the gun was laying on the side of the bed; I told her to leave me alone, all right, I shot at her, all right, she went back into the kitchen — .
"Q. Did you miss her?
'A. I missed her, I didn’t intend actually to shoot her.

All right, she goes to cursing and stuff again, telling me what her brother would do to me and аll this here; I couldn’t take no more and I shot at her.

"Q. With the shotgun?
’A. Yes.
”Q. Your shot killed her?
”A. Yes, it did.
”Q. You aimed the gun at her?
'A. I throwed it up and shot.
”Q. Your intention was to shoot her?
"A. Not actually, no.
"The Court: I can’t take a plea like that.
(Whereupon an off-the-record discussion was had.)
"The Defendant: Well, I intended to shoot her then, yes. I took the gun and aimed it at her and shot her.
”Q. (By the court, continuing): Tell me what happеned. You picked ‍​​​​​​‌‌​‌​‌‌​​​‌‌​​‌​‌​​‌​​​​​​​‌‌‌​​​‌​​​​‌‌​​‍up the gun, what did you do?
’A. I picked it up, aimed it and shot her while she was standing out in between the house.
”Q. Did you shoot her on purpose?
'A. Yes, I did._
*281”Q. Did you mean to inflict injury to her?
"A. Not actually, no.
"Q. What was your intention?
"A. My intention was to scare her but I just hit her.
"The Court: I can’t take that plea.
- "Mr. Thuman [defense attorney]: I asked him not to make up any stories.
"The Court: If that’s your story, you’ve got to tell a jury that.
"Mr. Thuman: Could we — ?
"The Court: You want to talk to him for a minute?
"Mr. Thuman: Your Honor, I will not ask him to change his story. Is that what happened?
"The Defendant: She was standing in between the house now; so she kеpt on talking and I took the gun and shot her.
"Q. (By the court, continuing): Was your intention to shoot her?
"A. Yes, it was.
"Q. You didn’t care whether you killed her or not?
"A. No, I was mad.
"The Court: All right, I’ll accept that plea, is that the true story?
"The Defendant: Yes, it is.”

This quoted extract might not support a finding of "no basis in fact” for the plea, rendering the plea itself unacceptable.3 It might not be enough to warrant a conclusion ‍​​​​​​‌‌​‌​‌‌​​​‌‌​​‌​‌​​‌​​​​​​​‌‌‌​​​‌​​​​‌‌​​‍that the plea was involuntarily made.4 But the test for determining when a motion to withdraw a guilty plea should be granted is less strict. Though after acceptance of the plea there is no absolute right to withdrawal, People v Case, 340 Mich 526; 65 NW2d 803 (1954), the trial judge’s discretion should be exercised "with, great liberality when the motion is made prior to sentence or commencement of trial”. People v Bencheck, 360 Mich 430, 432; 104 NW2d 191, *282192 (1960). See, also, People v Cochrane, 40 Mich App 316; 198 NW2d 417 (1972).

The Bencheck Court formulated the test as follows:

"Where * * * a defense of innocеnce is asserted at the time of a request to withdraw the plea, and thе request is not obviously frivolous and is made before commencement оf trial and before sentence, the plea should be granted. The right we deal with here is the right to a jury trial, and even what may prove a well-founded belief in defendant’s guilt on the part of the trial judge should not impede the exercise of that right.” Bencheck, supra, at 433.

Hall’s claim that the plea transcript did not support thе charge of second-degree murder is tantamount to an assertion that he is innocent of that charge. Magic words need not be used to claim constitutional rights. Cf. People v Kenneth Jones, 45 Mich App 351, 352-353; 206 NW2d 477, 478 (1973). In addition, the request to ‍​​​​​​‌‌​‌​‌‌​​​‌‌​​‌​‌​​‌​​​​​​​‌‌‌​​​‌​​​​‌‌​​‍withdraw was not "obviously frivolous”.5 6*On the contrary, it receives substantial support in the record, which "shows circumstances that cast grave suspicion upon the veracity and voluntariness оf the guilty plea”. People v Hollman, 12 Mich App 231, 235; 162 NW2d 817, 819 (1968).

Accordingly, we hold that it was an abuse of discretion to dеny defendant’s motion to withdraw his guilty plea.

Reversed and remanded for an order allowing withdrawal of plea, and new trial.6

Notes

The motion itself does not appear in the record. A copy is appended to appellee’s brief. That the motion was made is undisputed.

Compare People v Boone, 47 Mich App 548, 551; 209 NW2d 693, 694 (1973) [concurring opinion].

GCR 1963, 785.7(3).

GCR 1963, 785.7(2).

Compare the leading case on frivolity, People v Zaleski, 375 Mich 71; 133 NW2d 175 (1965). See, also, People v Malone, 385 Mich 769 (1971), and People v Boone, supra, which attempt to reconcile Ben-check with Zaleski.

The potential impact of People v McMiller, 389 Mich 425; 208 NW2d 451 (1973), on the present facts is left open as the ‍​​​​​​‌‌​‌​‌‌​​​‌‌​​‌​‌​​‌​​​​​​​‌‌‌​​​‌​​​​‌‌​​‍issue has been neither briefed nor argued. But cf. Genesee Prosecutor v Genesee Circuit Judge, 391 Mich 115; 215 NW2d 145 (1974).