People v. Maddox

28 Mich. App. 583 (1970) 184 N.W.2d 481

PEOPLE
v.
MADDOX

Docket No. 9346.

Michigan Court of Appeals.

Decided December 8, 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.

Gerald F. Wigle, for defendant on appeal.

Before: McGREGOR, P.J., and BRONSON and DANHOF, JJ.

PER CURIAM.

With the assistance of counsel, defendant was tried by a jury and convicted on the charge of robbery armed (MCLA § 750.529 [Stat Ann 1970 Cum Supp § 28.797]) on February 4, 1970. The following day defendant appeared with counsel and tendered a plea of guilty to a second charge of unlawfully driving away a motor vehicle. The plea was accepted and on February 20, 1970, defendant was sentenced on the armed robbery conviction by a jury to a term of 25 to 50 years imprisonment. He was also sentenced, on the guilty plea, to the charge of unlawfully driving away an automobile to a term of 23 to 24 months imprisonment. Sentence was imposed by Judge Joseph A. Gillis of the recorder's court. A timely petition was made for the appointment of appellate counsel and the subsequent claim of appeal seeks to attack the validity of the guilty plea proceedings. First, it is contended that the defendant was denied effective assistance of counsel; second, it is contended that the plea was involuntary; and third, it is contended that the defendant did not knowingly waive his right to trial by jury. The people have filed a motion to affirm the conviction and sentence.

In an attempt to demonstrate that defendant was denied the effective assistance of counsel, he points out that he was able to meet with his court appointed attorney only four times prior to the guilty plea proceeding. And that he was advised by his attorney that "he didn't stand a chance". In People v. Degraffenreid (1969), 19 Mich. App. 702, 710, this Court quoted with approval the general proposition of Williams v. Beto (CA 5, 1965), 354 F2d 698, 704:

"``It is the general rule that relief from a final conviction on the ground of incompetent or ineffective counsel will be granted only when the trial was a farce, or a mockery of justice, or was shocking to the conscience of the reviewing court, or the purported representation was only perfunctory, in bad faith, a sham, a pretense, or without adequate opportunity for conference and preparation.'"

We note that during the plea proceeding defendant was expressly asked whether he was satisfied with the advice of counsel. He responded in the affirmative. We also note that when asked why he was pleading guilty, defendant responded that he was caught in the act. Under these circumstances it is apparent that defendant has failed to demonstrate that he was denied the effective assistance of counsel.

Defendant contends that his plea was involuntary. This allegation is not supported by the record. As this Court stated in People v. Horvath (1970), 25 Mich. App. 649:

"[T]he proper forum for entertaining a post-plea allegation of involuntariness not supported by the record is the trial court. People v. Dorner (1970), 24 Mich. App. 306; People v. Kenny Smith (1969), 20 Mich. App. 307; see also Chief Justice BRENNAN'S remarks in People v. Taylor (1970), 383 Mich. 338, 359".

The final contention of the defendant is that he did not voluntarily waive his right to jury trial. At the plea proceeding, defendant's court appointed counsel informed the court in the presence of the defendant that the defendant had been advised of his right to jury trial. During the court's examination of the defendant, he was expressly informed that by pleading guilty he was waiving his right to jury trial or trial before the court without a jury. Moreover, the record indicates that defendant signed an express waiver of his right to jury trial. This issue is also without merit. Motion to affirm is granted.