People v. Rogers

55 Mich. App. 491 (1974) 223 N.W.2d 20

PEOPLE
v.
ROGERS

Docket No. 17046.

Michigan Court of Appeals.

Decided September 11, 1974.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, John A. Smietanka, Prosecuting Attorney, and John Jeffrey Long, Assistant Prosecuting Attorney, for the people.

Norris J. Thomas, Jr., Assistant State Appellate Defender, for defendant.

Before: HOLBROOK, P.J., and T.M. BURNS and R.L. SMITH,^[*] JJ.

PER CURIAM.

On January 8, 1973, after being advised of his rights, the defendant pled guilty to a charge of assault with intent to rob being armed. MCLA 750.89; MSA 28.284. At the same time he stood mute to a charge of rape. Defendant was 15 years old when apprehended by Michigan authorities in Florida. The Michigan officers questioned him at the time in Florida after informing him of his Miranda^[1] rights. The defendant signed a statement and waived extradition to Michigan.

On February 6, 1973, the defendant was sentenced to 15 to 45 years in prison. Without seeking any type of relief in the trial court defendant filed a claim of appeal in this Court.

The defendant contends that his plea of guilty should be set aside because it was induced by an unfulfilled promise of leniency by a juvenile court officer. It is his claim that the juvenile officer told him he would not receive a sentence longer than 5 years. In In re Valle, 364 Mich. 471, 477-478; 110 NW2d 673 (1961) the Supreme Court stated:

"If the evidence establishes that the prosecutor or the judge has made a statement which fairly interpreted by the defendant * * * is a promise of leniency, and the assurance is unfulfilled, the plea may be withdrawn and the case proceed to trial."

We see no reason why this rule should not apply to promises alleged to have been made by a juvenile officer, especially when it has been given to a 15-year-old juvenile. In People v Morrison, 46 Mich. App. 138, 139; 207 NW2d 411 (1973), the allegation was made that the promise of leniency was made by a police officer. We expect juvenile officers to counsel and advise juveniles and expect juveniles to look upon such officers and their counseling with respect. However, the question of whether or not there was a promise of leniency is not properly before the Court. In Morrison this Court stated:

"Morrison further asserts that he is entitled to have his plea set aside because it was induced by a promise made by the police officers in charge of his case that he would receive probation. Such a claim must be advanced by a motion to withdraw guilty plea since the claim depends upon facts dehors the record; without a testimonial record and findings by a judge, this Court has nothing before it to review."

During the plea-taking proceedings the defendant was asked if he had been promised leniency and he replied in the negative. His unsupported allegations require action in the trial court to establish a record for appeal. People v Ginther, 390 Mich. 436; 212 NW2d 922 (1973).

The defendant also argues that he was induced to enter a plea of guilty on advice of counsel who advised him that if he stood trial his statement given to the Michigan officers while being questioned in Florida would be used against him. Defendant claims the confession is clearly inadmissible and he was deprived of adequate counsel by the giving of such advice. People v Johnson, 386 Mich. 305; 192 NW2d 482 (1971), adopted the United States Supreme Court's holding in McMann v Richardson, 397 U.S. 759; 90 S. Ct. 1441; 25 L. Ed. 2d 763 (1970), that a plea of guilty induced by an arguably coerced confession is still a voluntary act if made with the advice of counsel. In McMann the Court said:

"Courts continue to have serious differences among themselves on the admissibility of evidence * * *. That this Court might hold a defendant's confession inadmissible in evidence, possibly by a divided vote, hardly justifies a conclusion that the defendant's attorney was incompetent or ineffective when he thought the admissibility of the confession sufficiently probable to advise a plea of guilty." 397 U.S. 770; 90 S. Ct. 1448, 25 L. Ed. 2d 773.

The defendant contends that the trial court committed error by considering the pending charge in fixing the sentence. The trial court stated in commenting on information in the presentence report:

"In my opinion, in reading this, this is one of the most serious crimes that's ever come before me. You are young, it is true. This was an adult-type crime of the most vicious nature directed against an 80-year-old woman in her own home."

The defendant interprets this statement as meaning that the trial court was referring to the rape charge. It may be noted that the trial judge never mentioned the rape charge specifically. Defendant's reliance on People v Grimmett, 388 Mich. 590; 202 NW2d 278 (1972), and People v Zachery Davis, 41 Mich. App. 683; 200 NW2d 779 (1972), is misplaced for the reason that in both of these cases the sentencing judge made open reference to other offenses which the defendants denied and which offenses had not yet been proven.

As Justice WILLIAMS recently wrote in People v Lee, 391 Mich. 618, 636; 218 NW2d 655 (1974):

"The realistic and honest policy is to recognize that the judges will have this information in one way or another and to provide the defendant the opportunity at his instance to challenge or explain such pending charges as best he can, if he deems it advisable."

The defendant does not complain that he was deprived of the opportunity to explain or challenge anything contained in the presentence report. He merely contends that the quoted statement of the sentencing judge means that the pending charge was weighed against him in his sentence. We find such an interpretation to be unjustified.

Remanded to the trial court for the purpose of permitting defendant to make a motion to withdraw his guilty plea. As to all other issues, the case is affirmed. We do not retain jurisdiction.

NOTES

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

[1] Miranda v Arizona, 384 U.S. 436; 86 S. Ct. 1602; 16 L. Ed. 2d 694; 10 ALR3d 974 (1966).