On January 8, 1973, after being advised of his rights, the defendant pled guilty to a charge of assault with intent to rob being armed. MCLA 750.89; MSA 28.284. At the same time he stood mute to a charge of rape. Defendant was 15 years old when apprehended by Michigan authorities in Florida. The Michigan officers questioned him at the time in Florida after informing him of his Miranda 1 rights. The defendant signed a statement and waived extradition to Michigan.
On February 6, 1973, the defendant was sentenced to 15 to 45 years in prison. Without seeking any type of relief in the trial court defendant filed a claim of appeal in this Court.
The defendant contends that his plea of guilty should be set aside because it was induced by an
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unfulfilled promise of leniency by a juvenile court officer. It is his claim that the juvenile officer told him he would not receive a sentence longer than 5 years. In
In re Valle,
"If the evidence establishes that the prosecutor or the judge has made a statement which fairly interpreted by the defendant * * * is a promise of leniency, and the assurance is unfulfilled, the plea may be withdrawn and the case proceed to trial.”
We see no reason why this rule should not apply to promises alleged to have been made by a juvenile officer, especially when it has been given to a 15-year-old juvenile. In
People v Morrison,
"Morrison further asserts that he is entitled to have his plea set aside because it was induced by a promise made by the police officers in charge of his case that he would receive probation. Such a claim must be advanced by a motion to withdraw guilty plea since the claim depends upon facts dehors the record; without a testimonial record and findings by a judge, this Court has nothing before it to review.”
During the plea-taking proceedings the defendant was asked if he had been promised leniency and he replied in the negative. His unsupported allegations require action in the trial court to establish a record for appeal.
People v Ginther,
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The defendant also argues that he was induced to enter a plea of guilty on advice of counsel who advised him that if he stood trial his statement given to the Michigan officers while being questioned in Florida would be used against him. Defendant claims the confession is clearly inadmissible and he was deprived of adequate counsel by the giving of such advice.
People v Johnson,
"Courts continue to have serious differences among themselves on the admissibility of evidence * * * . That this Court might hold a defendant’s confession inadmissible in evidence, possibly by a divided vote, hardly justifies a conclusion that the defendant’s attorney was incompetent or ineffective when he thought the admissibility of the confession sufficiently probable to advise a plea of guilty.”
The defendant contends that the trial court committed error by considering the pending charge in fixing the sentence. The trial court stated in commenting on information in the presentence report:
"In my opinion, in reading this, this is one of the most serious crimes that’s ever come before me. You are young, it is true. This was an adult-type crime of the most vicious nature directed against an 80-year-old woman in her own home.”
The defendant interprets this statement as meaning that the trial court was referring to the
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rape charge. It may be noted that the trial judge never mentioned the rape charge specifically. Defendant’s reliance on
People v Grimmett,
As Justice Williams recently wrote in
People v Lee,
"The realistic and honest policy is to recognize that the judges will have this information in one way or another and to provide the defendant the opportunity at his instance to challenge or explain such pending charges as best he can, if he deems it advisable.”
The defendant does not complain that he was deprived of the opportunity to explain or challenge anything contained in the presentence report. He merely contends that the quoted statement of the sentencing judge means that the pending charge was weighed against him in his sentence. We find such an interpretation to be unjustified.
Remanded to the trial court for the purpose of permitting defendant to make a motion to withdraw his guilty plea. As to all other issues, the case is affirmed. We do not retain jurisdiction.
Notes
Miranda v Arizona,