People v. Graham

39 Mich. App. 109 (1972) 197 N.W.2d 312

PEOPLE
v.
GRAHAM

Docket No. 12044.

Michigan Court of Appeals.

Decided February 29, 1972.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Kenneth J. Myles, Prosecuting Attorney, for the people.

Arthur J. Tarnow, State Appellate Defender, and David A. Goldstein, Assistant Defender, for defendant.

Before: FITZGERALD, P.J., and R.B. BURNS and HOLBROOK, JJ.

Leave to appeal denied, 388 Mich. 758.

PER CURIAM.

The defendant was originally charged with armed robbery and kidnapping. On April 16, 1971, at a time when he was represented by counsel, he pleaded guilty to the lesser included offense of unarmed robbery^[1] and the kidnapping charge was dismissed. Subsequently, he was sentenced to a term of 10 to 15 years in prison.

On appeal, the defendant contends: (1) that the evidence presented at the preliminary examination was not sufficient to warrant the examining magistrate in finding that the crime of kidnapping^[2] had been committed, and, therefore, he was improperly bound over to the circuit court; (2) that his plea of guilty to the crime of unarmed robbery was coerced and involuntary because he only entered such plea to avoid the possibility of being convicted of the crime of kidnapping, which carries a maximum sentence of life imprisonment; (3) that the trial court erred in accepting his plea of guilty without informing him of his right to a nonjury trial; and (4) that the trial court erred in accepting his plea of guilty without informing him of his right to confront his accusers.

In regard to the defendant's first contention, it is sufficient to say that the evidence presented at the preliminary examination was sufficient to warrant the examining magistrate in finding: (1) that the crime of kidnapping had been committed and (2) that there were reasonable grounds to believe the defendant had committed the crime. Therefore, the defendant was not improperly bound over to the circuit court on the kidnapping charge.

The defendant's second contention is also without merit. We have previously held that "a fulfilled promise of charge reduction is not ground for vacating a guilty plea even if the plea was induced thereby". People v Jackson, 20 Mich. App. 414, 415 (1969), citing People v Kindell, 17 Mich. App. 22 (1969); People v Sumlin, 32 Mich. App. 1 (1971); People v Grades, 35 Mich. App. 383 (1971). Whether the defendant would have otherwise entered a guilty plea does not render his plea involuntary so long as it was "knowingly and understandingly made with the benefit of counsel". People v Temple, 23 Mich. App. 651, 660 (1970); People v Sumlin, 32 Mich. App. 1, 3 (1971).

The defendant's third contention is also meritless. There is no requirement that a trial court must specifically inform a defendant that by pleading guilty he waives his right to be tried by a judge sitting without a jury. People v Logan, 35 Mich. App. 600 (1971). See People v Robert A Smith, 35 Mich. App. 349 (1971).

The defendant's final contention is rendered meritless by our decision in People v Sepulvado, 27 Mich. App. 66 (1970). There we ruled that the United States Supreme Court's holding in Boykin v Alabama, 395 U.S. 238; 89 S. Ct. 1709; 23 L. Ed. 2d 274 (1969), does not require a trial court to specifically inform a defendant of his constitutional right to confront his accusers before a guilty plea can be accepted, but rather, only requires that the record affirmatively show that the plea was made understandingly and voluntarily. The record in this case clearly shows that the defendant's plea of guilty was made understandingly and voluntarily.

Affirmed.

NOTES

[1] MCLA 750.530; MSA 28.798.

[2] MCLA 750.349; MSA 28.581.