People v. Shell , 23 Mich. App. 593 ( 1970 )

23 Mich. App. 593 (1970) 179 N.W.2d 262

PEOPLE
v.
SHELL

Docket No. 7,768.

Michigan Court of Appeals.

Decided April 30, 1970. Rehearing denied June 3, 1970.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Arthur N. Bishop, Assistant Prosecuting Attorney, for the people.

Larry Middleton, for defendant on appeal.

Before: LESINSKI, C.J., and QUINN and V.J. BRENNAN, JJ.

PER CURIAM.

On January 23, 1958, defendant Samuel Shell tendered a plea of guilty to a charge of second-degree murder. MCLA § 750.317 (Stat Ann 1954 Rev § 28.549). The court accepted his plea and sentenced him to life imprisonment. Defendant now files a delayed appeal, contending his plea is invalid because the court, in accepting the plea, did not establish its truth by direct questioning or otherwise. People v. Barrows (1959), 358 Mich. 267; People v. Perine (1967), 7 Mich. App. 292; People v. Stearns (1968), 380 Mich. 704.

GCR 1963, 785.3, as did its predecessor, Court Rule No 35A (1945) (318 Mich. xxxix), requires the trial court to "examine the accused * * * and ascertain that the plea was freely, understandingly, and voluntarily made * * *". This language has been construed as requiring a "reasonable ascertainment of the truth of the plea", People v. Barrows, supra. A "reasonable ascertainment of the truth of the plea" has, in turn, been construed to mean that a substantial factual basis for the plea must appear on the record. People v. Bartlett (1969), 17 Mich. App. 205; People v. Seifert (1969), 17 Mich. App. 187. We have reviewed the record in the present case and find nothing approximating a substantial factual basis for defendant's plea. In view of the court's total noncompliance with the court rule, we reverse and remand the case for withdrawal of the plea.

Reversed and remanded.