People v. Chester Davis , 41 Mich. App. 224 ( 1972 )

41 Mich. App. 224 (1972) 200 N.W.2d 109

PEOPLE
v.
CHESTER DAVIS.

Docket No. 11668.

Michigan Court of Appeals.

Decided May 30, 1972.

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

Arthur J. Tarnow, State Appellate Defender, and James R. Neuhard, Assistant Defender, for defendant.

Before: FITZGERALD, P.J., and McGREGOR and O'HARA,^[*] JJ.

Leave to appeal denied, 388 Mich 781.

O'HARA, J.

Defendant pled guilty to the reduced charge of assault with intent to rape. MCLA 750.85; MSA 28.280. He was sentenced to seven to ten years imprisonment. The original charge carries a penalty of any number of years to life.

The trial court's examination of the defendant satisfied every known statutory, court rule and case law requirement thus far established in the plea taking dialogue. Defendant was asked:

"Has anyone made any promises of leniency or any other type promise in order to induce you to plead guilty?"

Defendant's answer was clear and unequivocal.

"No, your Honor."

The trial court had previously inquired:

"Do you understand by pleading guilty at this time you are subjecting yourself to a possible sentence of ten years maximum imprisonment, do you understand that?"

"Yes," answered the defendant.

Defendant now claims that he, in fact, was induced to plead guilty by a promise of leniency by his own attorney.

He filed a motion for a new trial below, supported by two affidavits now part of the record on appeal. The affidavits by him and his brother allege that his trial counsel promised defendant that he would receive a lighter sentence if he entered a guilty plea. The motion for a new trial was denied.

It is difficult to know how a trial judge can protect himself and his record on plea acceptance other than by asking a defendant whether any inducements or promises have been made to him. If the affidavit of defendant and his brother, standing alone, mandates an "evidentiary hearing", then no plea negotiated or otherwise is inviolate in our state.

On the record before us we decline to disturb the plea as accepted.

We affirm.

All concurred.

NOTES

[*] Former Supreme Court Justice, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.