People v. Thomas

66 Mich. App. 594 (1976) 239 N.W.2d 427

PEOPLE
v.
THOMAS

Docket No. 23105.

Michigan Court of Appeals.

Decided January 8, 1976.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, John A. Smietanka, Prosecuting Attorney, and Sally M. Zack, Assistant Prosecuting Attorney, for the people.

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

Before: T.M. BURNS, P.J., and V.J. BRENNAN and M.F. CAVANAGH, JJ.

Leave to appeal denied, 396 Mich ___.

V.J. BRENNAN, J.

Defendant, Albert William Thomas, was charged with armed robbery. MCLA 750.529; MSA 28.797. On January 29, 1974, defendant pled guilty to the crime and was sentenced to life in prison on February 11, 1974.

The defendant was informed of his rights by the plea-taking court. He further indicated that his plea was voluntary and free from coercion. However, at the sentence proceedings the defendant stated that he wanted to withdraw his plea. Defendant stated he had pled guilty because "some officer" told him that the judge was angry with him, was going to "get him", and that it would be easier on him if he pled guilty. The sentencing court denied the defendant's request to withdraw the plea. Defense counsel then moved for a postponement so that defendant could offer proof of the alleged coercion. The court denied the motion and proceeded with sentence.

Defendant now appeals alleging: (1) the court abused its discretion in denying the motion for plea withdrawal, (2) the court should have sua sponte ordered a competency hearing, (3) the plea was involuntary because defendant was intoxicated at the time of the plea, and his counsel was ineffective.

Under the liberal standard of plea withdrawal, defendant should be granted his motion for withdrawal if he can show coercion beyond mere allegation. People v Lewandowski, 394 Mich. 529; 232 NW2d 173 (1975), People v Zaleski, 375 Mich. 71; 133 NW2d 175 (1965). We, therefore, remand this case to the trial court for a hearing on the issue of coercion. People v Jackson, 13 Mich. App. 52; 163 NW2d 679 (1968). If the defendant cannot substantiate his claim, the plea shall stand. If there is evidence of coercion, the trial court shall then exercise its discretion with great liberality to determine whether the plea should be set aside.

We find the remaining issues completely without merit.

Remanded for proceedings consistent with this opinion.

M.F. CAVANAGH, J., concurred.

T.M. BURNS, P.J. (dissenting).

In accordance with my opinion in People v Cochrane, 40 Mich. App. 316; 198 NW2d 417 (1972), I would reverse and remand for an order allowing withdrawal of the plea and a new trial.

Our Supreme Court has recently reaffirmed its position that motions to withdraw should be granted where the request is not obviously frivolous. People v Lewandowski, 394 Mich. 529; 232 NW2d 173 (1975).

I believe that the clear intention of the Supreme Court as expressed in Lewandowski, supra, is that in cases such as the one at bar, the cause should be remanded for trial, not for a hearing on the question of the voluntariness of defendant's plea.