People v. Combs

15 Mich. App. 450 (1968) 166 N.W.2d 509

PEOPLE
v.
COMBS

Docket No. 3,609.

Michigan Court of Appeals.

Decided December 31, 1968.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Paul E. Braunlich, Prosecuting Attorney, for the people.

Scharf, Hagemeyer & White, for defendant on appeal.

QUINN, J.

Defendant has appealed from the trial court's denial of his motion to withdraw pleas of guilty after sentence and enter pleas of not guilty with a demand for jury trial. The motion was addressed to the trial court's discretion and the question before this Court is whether the record establishes an abuse of discretion. People v. Wilkins (1966), 3 Mich App 56.

Defendant was arrested August 4, 1958 on a warrant charging him with statutory rape, CL 1948, § 750.520, as amended by PA 1952, No 73 (Stat Ann 1954 Rev § 28.788), and indecent liberties, CL 1948, § 750.336 (Stat Ann 1954 Rev § 28.568). He had a preliminary examination on these charges September 16, 1958, at which he was represented by counsel, who continued to represent him through sentence. Defendant was bound over to circuit court for trial on the same charges September 16, 1958 and was informed against on such charges on September 19, 1958. He was released on bond September 23, 1958 and was arraigned September 24, 1958. Defendant stood mute at arraignment, a plea of not guilty was entered for him, his bond was continued and he waived jury trial.

October 13, 1958, defendant was surrendered to the court by his bondsman and remanded to custody. The apparent reason for this action was defendant's arrest on a charge of possession of burglary tools, CL 1948, § 750.116 (Stat Ann 1962 Rev § 28.311), on that same day. Defendant waived examination of this charge and was informed against thereon on November 6, 1958 and was arraigned the same day with his counsel present.

On November 6, 1958, the transcript establishes that defendant freely, understandingly and voluntarily, without undue influence, compulsion, or duress, and without promise of leniency, pleaded guilty to the charge of indecent liberties and the prosecuting attorney agreed to drop the statutory rape charge.

The same transcript establishes that on the same day defendant was arraigned on the charge of possession of burglary tools, and again the record establishes an acceptable plea of guilty.

On this appeal, defendant attacks both guilty pleas as not having been voluntary. His present recanting does not overcome the record of voluntariness made at the time of arraignment.

Defendant also attacks the pleas on the basis he was not questioned by the trial judge relative to the facts of the crimes and defendant's participation therein, as required by People v. Barrows (1959), 358 Mich 267. A review of the record on the indecent liberties conviction discloses a preliminary examination which established the crime and defendant's participation in it. With this information at hand, the trial judge did not abuse his discretion in denying defendant's motion to withdraw his plea.

A review of the record on the possession of burglary tools conviction discloses possession of tools properly categorized as burglary tools, but it fails to disclose possession "with intent to use or employ the same for purposes of burglary" as the statute requires. With this deficiency in the record, it was an abuse of discretion not to grant defendant's motion to withdraw plea.

The conviction on the charge of indecent liberties is affirmed. The conviction on the charge of possession of burglary tools is reversed and the case is remanded for further proceedings.

T.G. KAVANAGH, P.J., and MILLER, J., concurred.