People v. Gamble

197 N.W.2d 500, 39 Mich. App. 227, 1972 Mich. App. LEXIS 1425

• Court: Michigan Court of Appeals
• Decided: March 22, 1972
• Docket: Docket 10684
• Status: Published

Opinions

Danhop, J.

Defendant was arrested and charged with murder in the second degree, MOLA 750.317; MSA 28.549. A preliminary examination was held and defendant was bound over on the charge. On April 6, 1970, defendant appeared for arraignment and offered to plead guilty to the lesser offense of manslaughter, MCLA 750.321; MSA 28.553. His plea was not accepted at that time. On September 8, 1970, defendant again appeared before the judge and entered a plea of guilty to manslaughter which was accepted. On September 29, 1970, date set for sentencing, defendant again appeared before the Honorable John R. Murphy, Recorder’s Court Judge, at which time the following transpired:

“The Court: * * * [Defendant] was here on September 28, 1970 [sic] and he was charged with second-degree murder and he pled guilty to manslaughter. You are here today for sentencing. Do you have anything to say?

“Mr. MacDonald: Yes, your Honor. Prior to the sentencing I have discussed with Mr. Gamble the nature of the original charge, that is murder in the second degree, as well as what ultimately pled to, manslaughter.

“Having had the discussion with Mr. Gamble and there being no promises or threats or inducements to my knowledge to Mr. Gamble, it is my understanding at this time that he would like to withdraw the plea of guilty to the charge of manslaughter and enter a plea of guilty to the charg'e in the information, that being murder in the second degree.

“The Court: Do you have any objections?

“Mr. Eealy: I have no objections, your Honor.

“The Court: Mr. Gamble, is that your desire?

“Mr. Gamble: Yes, sir.

“The Court: Do you know that the maximum posssible penalty is life imprisonment?

“The Court: You know that that also gives the court certain discretion in setting a mandatory maximum?

“Mr. Gamble: That’s right.

“The Court: With manslaughter you have no discretion on the maximum and with the second degree I can set the maximum that I want to set, you understand that?

“The Court: Do you want to withdraw your plea of guilty on the manslaughter charge and you want to plead guilty to second-degree murder?

“The Court: I will accept the plea. Are you ready for sentencing?

“Mr. MacDonald: We are ready for the immediate sentencing, your Honor.”

Defendant was sentenced for the crime of second-degree murder to a prison term of from 7-1/2 to 10 years. The claim of appeal was filed and the matter was remanded to the trial court to allow the defendant to file post-conviction motions. On May 8, 1971, the defendant filed motion to withdraw his plea of guilty, which motion was denied on May 21,1971.

Defendant appears alleging an abuse of discretion on behalf of the trial judge in refusing to grant his motion.

A motion to withdraw a guilty plea after conviction and sentence must be based upon a showing of a miscarriage of justice and addresses itself to the sound discretion of the court. People v Winegar, 380 Mich 719 (1968), People v Kearns, 2 Mich App 60 (1965).

Examination of the record does not disclose an abuse of discretion in this case. The record shows that the plea of the defendant was voluntarily and understandingly made, and that the facts recited by the defendant at the time of his original plea to manslaughter are sufficient to establish the crime of second-degree murder and the defendant’s participation therein. People v Rufus Williams, 386 Mich 277 (1971); HCR 1963, 785.3. While at first glance it might seem illogical to withdraw a plea of guilty to manslaughter in favor of a plea to second-degree murder, the reasoning therefor is obvious when one examines the sentence. The maximum set by the trial judge was five years less than that mandated for manslaughter. The defendant freely, understandingly, voluntarily, and with counsel, made a deliberate choice. He should now abide by it.

Affirmed.

Holbrook, P. J., concurred.