Opinion
Docket No. 44432.
Decided July 7, 1980.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Timothy L. Cronin, Assistant Prosecuting Attorney, for the people.
Derrick A. Carter, Assistant State Appellate Defender, for defendant on appeal.
Before: DANHOF, C.J., and CYNAR and MacKENZIE, JJ.
Defendant pled guilty to armed robbery, MCL 750.529; MSA 28.797. Prior to sentencing, defendant made a request to withdraw his guilty plea, which request was denied. Defendant was then sentenced to 10 to 25 years imprisonment. He appeals as of right.
Defendant raises one issue for review, contending that the trial court abused its discretion in refusing to grant defendant's motion to withdraw his plea of guilty.
On December 19, 1978, the date set for trial, defendant pled guilty to armed robbery. When asked whether anybody had promised him anything to induce him to plead guilty, defendant said no. On January 9, 1979, the date of sentencing, defense counsel stated that defendant wished to withdraw his guilty plea because of counsel's failure to go through with an evidentiary hearing on the admissibility of the defendant's confession scheduled for the day the plea was entered.
The defendant and the court engaged in the following colloquy:
"THE DEFENDANT: Your Honor, to start with, I was not so much as promised, I was — well, the deal was I was, I wasn't supposed to get any more than two years.
"THE COURT: Now, with whom, with whom is there such a deal?
"THE DEFENDANT: The Detroit Police, and in front of witnesses which I haven't had a chance to bring to court, and I was under the impression that I was coming and getting ready to have evidentiary hearing, which didn't wind up as being evidentiary hearing at all, and I —
"THE COURT: You understood you didn't have to plead guilty on the day you were in court. What day was that?"
Defendant indicated: "[T]hey didn't tell me to plead guilty. They told me if I cooperated, I would get two years and be on the street in 18 months". The trial judge refused to allow the plea to be withdrawn.
There is no absolute right to withdraw a guilty plea once it is accepted. People v Bentley, 94 Mich. App. 19; 287 N.W.2d 355 (1979). However, the trial court must treat such motions with great liberality when made before sentencing. People v Hollman, 12 Mich. App. 231, 235; 162 N.W.2d 817 (1968), app dis 381 Mich. 791 (1968), People v Hatcher, 83 Mich. App. 307, 308; 268 N.W.2d 389 (1978), People v Zaleski, 375 Mich. 71, 79; 133 N.W.2d 175 (1965). A trial court need not grant a motion to withdraw a guilty plea where the reasons stated for the withdrawal are "obviously frivolous". People v Thomas, (After Remand), 83 Mich. App. 235; 268 N.W.2d 356 (1978), Zaleski, supra. Furthermore, doubts concerning substantiation of the reasons for withdrawal must be resolved in the defendant's favor. People v Moomey, 53 Mich. App. 576, 579; 220 N.W.2d 210 (1974), Thomas, supra.
This Court has applied the "great liberality" standard to reverse a denial of a motion to withdraw a guilty plea under facts similar to those in the case at bar. In People v Stockard, 49 Mich. App. 540, 544-545; 212 N.W.2d 609 (1973), lv den 391 Mich. 772 (1974), the defendant filed a motion to withdraw his guilty plea prior to sentencing. This Court, in reversing and ordering a remand for trial, stated:
"In the hearing on the motion to withdraw plea, the most serious arguments advanced by defense counsel were as follows: (1) representations by police officers had been made to defendant out of the presence of defense counsel that things would go easier for defendant were he to plead guilty; (2) defendant's plea was entered the day following damaging admissions made in reference to the murder charge. Defendant claimed these admissions to have been involuntary. Thus, defendant alleged that his decision to plead guilty came at a time of great psychological confusion and was influenced thereby.
* * *
"While defendant's most serious allegations in support of his motion to withdraw plea may not have been completely substantiated, neither were they clearly frivolous. In People v Bencheck, 360 Mich. 430, 433; 104 N.W.2d 191, 192 (1960), it was stated:
"`Where, as here, a defense of innocence is asserted at the time of a request to withdraw the plea, and the request is not obviously frivolous and is made before commencement of 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."
We, therefore, hold that defendant's motion to withdraw plea should have been granted.
Defendant further argues that he was denied effective assistance of counsel when his attorney failed to proceed with a scheduled Walker hearing prior to the entry of the guilty plea. An ineffective assistance of counsel claim is reviewable after a guilty plea. People v McDonnell, 91 Mich. App. 458; 283 N.W.2d 773 (1979). There is insufficient support in the record to establish the defendant's claim since, among other things, there is nothing but the defendant's unsupported allegation to indicate that his confession was involuntary. See People v Krokker, 83 Mich. App. 474; 268 N.W.2d 689 (1978). This Court will not review this issue where the defendant has made no motion for a new trial or for an evidentiary hearing. People v Clemons, 74 Mich. App. 448; 253 N.W.2d 795 (1977), People v McKenzie, 67 Mich. App. 356; 241 N.W.2d 205 (1976). People v Lewis, 64 Mich. App. 175; 235 N.W.2d 100 (1975), is distinguishable because, in that case, there was substantial support in the record for the defendant's claim of ineffective assistance.
People v Walker (On Rehearing), 374 Mich. 331; 132 N.W.2d 87 (1965).
We are neither able to conclude that the defendant's reasons for seeking to withdraw his plea were "obviously frivolous" nor, for that matter, that defendant's reasons for seeking to withdraw his plea were substantiated. This matter is remanded to the trial court for a hearing to permit defendant to present evidence to substantiate his claim and for the people to submit proof to the contrary concerning defendant's claim that he was induced to plead guilty by promises of leniency. The evidentiary hearing is to be completed and the trial court's findings, together with the transcript of said hearing, are to be submitted to this Court within 60 days from the date this opinion is issued. We retain jurisdiction.