People v. Knight , 94 Mich. App. 526 ( 1980 )

94 Mich. App. 526 (1980) 288 N.W.2d 649

PEOPLE
v.
KNIGHT

Docket No. 78-567.

Michigan Court of Appeals.

Decided January 3, 1980.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Timothy Scallen, Assistant Prosecuting Attorney, for the people.

Robert B. Tatham, for defendant on appeal.

Before: T.M. BURNS, P.J., and BRONSON and R.M. MAHER, JJ.

T.M. BURNS, P.J.

Defendant-appellant, Reginald Knight, appeals of right his October 31, 1977, pleas of nolo contendere to the crimes of manslaughter, MCL 750.321; MSA 28.553, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). On November 8, 1977, defendant was sentenced to consecutive terms of 2-1/2 to 15 years for the former offense and two years for the latter. Defendant has raised three issues for our consideration and we find that one of them requires remand to the lower court.

Initially, we note that we find no merit in defendant's argument that he was denied effective assistance of counsel. Our review of the lower court record persuades us that defense counsel conscientiously protected defendant's interest and performed as well as a lawyer with ordinary training and skill in the criminal law. People v Garcia, 398 Mich. 250; 247 NW2d 547 (1976). Moreover, we find that none of defense counsel's actions have resulted in a serious error but for which defendant would have had a reasonable likelihood of acquittal. People v Degraffenreid, 19 Mich. App. 702, 718; 173 NW2d 317 (1969).

Defendant also contends that his plea was not voluntarily, intelligently or knowingly made and that the lower court erred in refusing to permit him to withdraw his plea at sentencing. The transcript of the plea proceeding indicates that defendant expressed an initial reluctance to make an inculpatory plea:

"COURT: Do you understand this plea is the result of bargaining between your attorney, Mr. Roth, and the Prosecutor?

"DEFENDANT: Yes.

"COURT: And that's all right with you?

"DEFENDANT: No, sir.

"COURT: I don't know what you're saying.

"DEFENDANT: No, I don't want to take the plea bargaining."

Following this exchange a conversation was held off the record. Thereafter, the plea proceeding continued and defendant made his nolo contendere plea which was accepted. The plea transcript does not disclose a factual basis supporting defendant's plea. Apparently, defendant's recollection of the criminal incident was so sketchy as to make it virtually impossible for him to recount his criminal activity. Nonetheless, on the date of sentencing, defendant, convinced that he was not guilty of any offense, requested permission to withdraw his plea.

Although there is no absolute right to withdrawal of a plea, requests to do so should be granted with "great liberality" if made prior to sentencing. People v Price, 85 Mich. App. 57; 270 NW2d 707 (1978), lv den 405 Mich. 819 (1979), People v Winegar, 78 Mich. App. 764; 261 NW2d 45 (1977). In People v Moore, 74 Mich. App. 195, 198; 253 NW2d 708 (1977), a panel of this Court held that where a defendant moves to withdraw a guilty plea, the trial court must "inquire in some detail why the defendant wishes to do so". We recognize that in the instant case we are not concerned with a "guilty plea" but rather with a plea of nolo contendere. However, because we are concerned with the maintenance of judicial integrity, we see no valid reason to distinguish on this point between guilty pleas and pleas of nolo contendere. If a defendant who has previously pled nolo contendere to a criminal charge seeks to have that plea withdrawn prior to sentencing on it, the trial court must make an inquiry into the defendant's reasons for wishing to withdraw the plea. If the defendant has a sufficiently non-frivolous reason for wishing to withdraw the plea then he should be permitted to do so.

Therefore, we adopt the remedy approved of in Moore and remand this cause to the lower court with an instruction to conduct an evidentiary hearing on whether defendant's reasons for attempting to withdraw his plea were non-frivolous.

In establishing the factual basis for defendant's plea, the trial court relied upon the preliminary examination transcript. There is nothing improper, per se, in the use of a preliminary examination transcript for this purpose. People v Belanger, 73 Mich. App. 438, 455; 252 NW2d 472 (1977), People v Gonzales, 70 Mich. App. 319; 245 NW2d 734 (1976).

Defendant alludes to the fact that the lower court did not adequately comply with GCR 1963, 785.7(3)(b), and justify on the record its reason for accepting the nolo contendere plea. However, both the prosecutor and defense counsel conceded at the plea proceeding that defendant's recollection of the facts of the criminal offense were unclear because he was "groggy". The trial court concluded that this was a sufficient reason for accepting a nolo contendere plea. The trial court's conclusion is correct. Guilty Plea Cases, 395 Mich. 96, 134; 235 NW2d 132 (1975), People v Seaman, 75 Mich. App. 546, 550; 255 NW2d 680 (1977).

Remanded for further proceedings consistent with this opinion.