People v. West

After Remand

J. H. Gillis, J.

Defendant pled guilty to armed robbery, MCLA 750.529; MSA 28.797, and assault with intent to commit rape, MCLA 750.85; MSA 28.280. He was sentenced to terms of from 20 to 40 years for the armed robbery and from 6 to 10 years for the assault. Defendant appealed as of right from the denial of his motion to withdraw his pleas. We remanded this case to the circuit court for an evidentiary hearing in order to determine if the trial judge made a statement that could have been fairly interpreted by the defendant to be a promise of leniency that went unfulfilled. We also retained jurisdiction.

Upon remand, the circuit court found no such promise and denied the motion to withdraw the pleas.

Defendant claims that his pleas were given in exchange for the promise not to sentence him for a term of greater than 20 years. Defendant’s argument must be rejected for two reasons.

First, the record does not support defendant’s contention. Defense counsel admitted that the trial judge would not state a specific number of years as a maximum sentence. In response to defense counsel’s request, the trial judge stated that normally someone convicted of armed robbery would receive a sentence of 15 or 20 years. It was defense counsel’s impression that if defendant pled guilty, he would receive a similar maximum sentence. This was a conclusion based on defense counsel’s own experience rather than a representation by the trial judge. He relayed this false impression to the defendant who relied upon it. A defendant’s mistaken belief that the trial court is going to be lenient in sentencing him upon acceptance of defendant’s plea of guilty is not sufficient reason to set aside the guilty plea. People v Bolden, 78 Mich App 120; 259 NW2d 389 (1977), People v Michael Williams, 36 Mich App 188; 193 NW2d 387 (1971).

Secondly, when a defendant pleads guilty to a criminal charge and then appeals claiming that the plea was based on the defendant’s belief that he had been promised a lesser sentence than the one actually received, the Court of Appeals should not substitute its judgment for that of the circuit court where the circuit court has held an evidentiary hearing and has decided that the plea should be upheld. People v Hall, 399 Mich 288; 249 NW2d 62 (1976), People v Bolden, supra.

Affirmed.

Beasley, J., concurred.