People v. Hayes

70 Mich. App. 580 (1976) 246 N.W.2d 154

PEOPLE
v.
HAYES

Docket No. 24346.

Michigan Court of Appeals.

Decided August 5, 1976.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert F. Leonard, Prosecuting Attorney, Donald A. Kuebler, Chief, Appellate Division, and Edwin R. Brown, Assistant Prosecuting Attorney, for the people.

Peter A. Marroso, for defendant.

Before: J.H. GILLIS, P.J., and M.F. CAVANAGH and McGREGOR,^[*] JJ.

PER CURIAM.

Defendant appeals a plea-based conviction of attempted larceny in a building, MCLA 750.92; MSA 28.287. The plea was accepted by the Genesee County Circuit Court which subsequently sentenced defendant to a term of from 16 months to 2 years in prison with credit for 82 days served.

On appeal, defendant's sole contention is that the trial court erred when it refused defendant's request to withdraw his plea. Defendant made this request prior to sentencing. In moving to withdraw his plea, defendant asserted that he was innocent and, because he had been pressured into pleading by his co-defendants who wished to accept the bargain offered by the prosecutor, his plea was not voluntarily entered.

In People v Bencheck, 360 Mich. 430, 433; 104 NW2d 191 (1960), the Supreme Court established a rule favoring the acceptance of legitimate requests for withdrawal of a guilty plea prior to sentencing:

"Where, as here, a defense of innocence is asserted at the time of a request to withdraw the plea, and the request is not obviously frivolous and is made before commencement of trial and before sentence, the plea should be granted. The right we deal with here is the right to a jury trial, and even what may prove a well-founded belief in defendant's guilt on the part of the trial judge should not impede the exercise of that right."

See also People v Zaleski, 375 Mich. 71; 133 NW2d 175 (1965).

Subsequent cases have manifested a variance in policy between the Supreme Court and this Court concerning the instant issue. This Court has exhibited a reluctance to allow withdrawals based solely on a defendant's assertions and has favored upholding the trial court's discretion. See e.g., People v Rodriguez, 61 Mich. App. 42; 232 NW2d 293 (1975), People v Thomas, 66 Mich. App. 594; 239 NW2d 427 (1976). Cf. People v Cochrane, 40 Mich. App. 316; 198 NW2d 417 (1972). The Supreme Court has stressed that this discretion be exercised with "great liberality". People v Bencheck, supra, at 432, People v Lewandowski, 394 Mich. 529; 232 NW2d 173 (1975).

The Lewandowski case is especially instructive. There, prior to sentencing, defendant asked to withdraw his plea based on a number of unsupported assertions. As here, he professed his innocence and claimed that his pleas were not entered voluntarily. Defendant in Lewandowski also asserted that, at the time he pled, he had no recollection of the incident on which the charges against him were based and that, since the pleas, he had regained his memory of the incident. No medical testimony was furnished to support this latter allegation.

On appeal, this Court held that a June 1, 1973, modification of GCR 1963, 785.7(4) altered the "great liberality" standard of Bencheck. People v Lewandowski, 58 Mich. App. 18; 226 NW2d 843 (1975). Applying an "abuse of discretion" standard, we upheld the trial court's refusal to allow withdrawal of the plea. Subsequently, we reheard the case after a Supreme Court order which indicated the continuing vitality of the Bencheck standard. Applying the "great liberality" test, we again upheld the trial court. People v Lewandowski (On Rehearing), 60 Mich. App. 455; 231 NW2d 392 (1975). The Supreme Court, however, citing Bencheck and Zaleski, reversed this holding in a brief per curiam opinion.

In this case, we believe that defendant's failure to support his request to withdraw his plea with any affidavits or other evidence should require either an affirmance of his conviction or a remand for him to provide such additional information to the trial court. However, we find ourselves constrained by People v Lewandowski to order the trial court to allow defendant to withdraw his plea. Defendant here has presented as much support for his request as did the defendant in Lewandowski. Therefore, we reverse the trial court's refusal to allow plea withdrawal and remand for further proceedings.

NOTES

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