*1 MORGAN PEOPLE v Opinion of the Court Appeal Guilty of Plea — 1. Criminal of Law —Pleas —Withdrawal of Record. Error —Examination appellate the entire record to determine An must examine court guilty a to withdraw of whether a defendant’s motion properly denied. Guilty 2. Criminal of of —Withdrawal Plea —Courts Law —Pleas of Discretion. —Discretion—Abuse refusing A its court did not abuse discretion presentence motion withdraw a criminal defendant’s thought guilty he he could with- where the defendant claimed sentencing any prior to and that his draw his time him, lawyer where the defendant was well so advised but plea-taking process, and an examination familiar with pled guilty that defendant had record reveals charge proceedings same in the same and tried earlier also, plea prior to on that occasion withdraw appears merely where it the defendant sentence-and- judge shopping. by Holbrook, E. D. Guilty Setting 3. Criminal —Withdrawal of Plea — Law —Pleas Pleas Rules. Aside —Courts—Discretion—Court plea of A has an to withdraw a criminal defendant absolute record; guilty accepted court has it on the before a court, aponte on motion of or sua either consent, may it has been defendant’s set aside atter (GCR1963, 785.7[4]). accepted the record Guilty Setting 4. Criminal Law —Pleas of —Nolo Contendere — Pleas Aside —Courts—Discretion. great liberality applied Discretion with is the standard to be [1-3, [4] 21 Am Jur 5] 21 Am Jur 2d, References Criminal 2d, Criminal Law §§ Law §§ Points 491, in Headnotes 503-506. Morgan Opinion op the Court determining court in whether a or nolo conten- during dere should be set aside between sentence; except of the on the record and the in rare cases even a belated claim of innocence merits a full *2 original charge, trial on the even if the court believes the guilty. defendant is op op Guilty 5. Criminal Law —Pleas —Withdrawal Plea —Courts —Discretion—Abuse of Discretion. denying A court abused its discretion in a defense motion to withdraw a of in a between the court’s of record and the surprise sentence where the motion did not come as a to the court and defense counsel indicated that the defendant would ready be for trial on the scheduled trial date. Appeal Detroit, from Court Recorder’s Joseph Gillis, A. 14, 1975, J. Submitted February at De- (Docket 20700.) troit. 26, August No. Decided Morgan, Frank also known as James Mackey, convicted, on his plea of guilty, second- degree murder. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Cahalan, L. General, William Solicitor Prosecuting Attorney, Patricia J. Boyle, Principal Research, Attorney, Training and Appeals, Arthur Bishop, N. Assistant Prosecuting Attorney, for the people. Surowiec,
Gerald S. for defendant on appeal. J., Before: V. J. P. and D. E. Hol Brennan, Jr. JJ. brook, O’Hara,* Defendant, V. P. J. Morgan, Frank Brennan, pled guilty murder, crime of 750.317; MCLA 28.549, MSA and was sentenced to * Supreme Justice, sitting Former Appeals by Court on the Court of assignment pursuant to Const art 23 as § amended in 1968. 686 Mich Opinion the Court right present- as of appeals prison. in He now life affirm. We consideration. ing one issue for our with first-de- charged originally Defendant was 28.548, in con- 750.316; MSA murder, MCLA gree J. Riley, of Gerald shooting death nection with the January officer. police Detroit off-duty an guilty to plead permitted defendant was strenu- prosecutor’s over second-degree murder appeared for sen- objections. When ous and the tencing he to withdraw asked He was sentenced to request. judge denied thereupon filed in prosecution The prison. life control superintending complaint this Court a cause which to show for an order a motion on this Court’s based May denied on Circuit v Genesee Prosecutor reading of Genesee (1972), Wayne Judge, 672; 194 NW2d *3 Court v Recorder’s Attorney Prosecuting County (1973). 615; 209 NW2d Judge, 47 Mich appeal to to for leave application prosecution’s The pending in abeyance held Court was Supreme our v Genesee Prosecutor of Genesee the outcome (1974). Judge, Circuit Court, on the Supreme our March On case, set aside in the above of their decision basis trial case for the and remanded plea defendant’s charge. Wayne County murder first-degree the Judge, Court v Recorder’s Prosecuting Attorney prosecutor remanded the case was After and the plea the reduced objection his withdrew trial and his to a waived again defendant second-degree accept plea his court to asked defendant, thoroughly questioning After murder. court, being convinced apparently accepted again given, knowingly and voluntarily re- presentence that a new ordered and his People Morgan op Opinion the Court port prepared. be Before stating wrote letter to the trial court that he was informing judge innocent and to withdraw that he wanted He this second filed motion for repeated request a new trial and his at the time of sentencing. request The trial court denied the imposed sentence. plea-taking procedures
We have reviewed the in thorough very this case and find them to be and in compliance plea-taking requirements. with all De- thought any could, fendant claims he he time prior sentencing, says withdraw his lawyer trial so him. this, advised We do not feel ground itself, is an absolute for withdrawal of a plea. The entire record must be examined. doing
After so arewe convinced that this de- knowingly voluntarily fendant’s say impressed least, made. To are not we or sympathetic this defendant’s claimed naivete. An examination of defendant’s criminal record plea- discloses that he was well familiar with the taking process. charges against Several disposed pleas. Furthermore, were importantly, and more
after defendant offered his first guilty charge murder he sought also to withdraw his before sentencing, judge but the trial denied the motion light at that we, time also. In of this like judge, simply persuaded by present are not appears fact, claims. it to us that this defendant merely sentence-and-judge shopping. carefully weighed We have all the factors here *4 find that the trial court did not abuse its refusing discretion to the motion to with- draw the
Affirmed.
O’Hara, J., concurred. App 686 690 63 Mich Holbrook, Jr., J. by D. E. (dissenting). Defendant E. D. Holbrook, 23, 1974, April on offered a murder, and it charge of reduced wrote defendant the 29 the accepted. April On innocent; that he he was stating court trial and that he guilty plea; his wanted to withdraw judgment his better plea against had offered the his attor- also wrote the He on advice counsel. 3 a formal motion to May On ney a similar letter. The motion was sum- filed. withdraw the trial court marily by the denied May 785.7(4), gov- June effective
GCR It pleas. provides: of guilty the erns withdrawal proffered plea under advise- may take the "The court accepts on the However, the court the ment. until record, it may as matter withdraw assigning accepts the court right After without cause. of the defendant set may on motion the court contendere; nolo or the court guilty or aside his defendant, consent of set sponte sua with the may, supplied.) plea.” (Emphasis his aside an gives the rule absolute While it accepted, before withdraw case law previous continues the rule plea by period between the People of sentence. court and the Matthews, v People Lewan- (1974), v 393 Mich (On Rehearing) dowski applied to be The standard NW2d * * * is, "discretion during the latter Bencheck, v People liberality”. great (1960); 430, 432; Lewandowski, supra. motion the defendant letter and his
In both his
prove
was innocent
and wished
that he
stated
the claim of
in court. Unless
innocence
.inno-
*5
People Morgan
v
Horbrook,
D. E.
frivolous,
cence is totally
the trial court
should
the defendant’s motion to withdraw
plea.
Bencheck,
People v
supra. Since under our laws
is presumed,
innocence
it is a rare case that even
a belated claim of innocence
not
should
merit a
full
trial on
charge,
the original
even if the trial
court believes that
is guilty. People
Bencheck,
Stone,
v
supra, People v
The motion did not come as a surprise
trial court on the
day
sentencing and defense
counsel
indicated
the defendant would be
ready
trial on June
the scheduled trial date.
Thus the motion to
withdraw the
was not just
Zaleski,
v
dilatory.
(1965),
People Whitmer,
I would reverse and remand for trial on the merits.