People v. Gray

185 N.W.2d 123, 29 Mich. App. 301, 1970 Mich. App. LEXIS 1117

Opinions

Per Curiam.

The defendant, Carl Randall Gray, was originally charged with rape.¹ He offered a plea of guilty to an added count of assault with intent to commit rape.² His plea was accepted and on February 26, 1968, he was sentenced to serve a term of three to ten years.

Two months later, through a newly retained lawyer, he filed a motion for a new trial which was treated as a motion to withdraw his guilty plea. The motion alleges that defendant’s trial lawyer promised that if he pled guilty he would be placed on probation.

On August 2, 1968, a testimonial hearing was held. At the judge’s request the trial lawyer attended the hearing and took the stand. He testified that on the day the original charge was scheduled to be tried he negotiated the charge reduction with the prosecutor after first obtaining the defendant’s approval. He said that he told the defendant he thought there was a chance he would receive probation since he had no previous record, and that he hoped for probation, but that he did not promise probation.

The defendant then took the stand and testified that his former lawyer told him that if he was convicted of rape he could be sentenced to life in prison, but that if he pled guilty to the reduced charge of assault with intent to commit rape he would be placed on probation.

After oral argument in our Court we entered an order remanding this case to the trial court for the making of a more complete record and of additional findings of fact on that record.

At the hearing on remand on August 31, 1970, the defendant’s parents testified and his trial attorney again testified. The defendant’s father testified that the trial lawyer promised that if the defendant pled guilty “he would get parole”. His mother said that the lawyer had told her that her son would “get probation and possibly a fine”.

The attorney testified that, “I told him, naturally, as I had done to dozens and dozens of clients, that I couldn’t guarantee anything, that it was up to the court; but I did tell him I hoped to have probation. I felt that his not having any previous record would go toward that end. I told him that I thought there was a reasonable chance for probation.”

At the conclusion of the hearing the judge found that the lawyer had not promised probation. He declared that in his opinion the claim of a promise of probation was an afterthought both by the defendant and his parents. He said he had no basis for changing his previous ruling denying the motion to withdraw the defendant’s guilty plea.

We have carefully reviewed the transcript and, having due regard, as the court rule provides, “to the special opportunity of the trial court to judge the credibility of those witnesses who appear before it” (GCR 1963, 517.1), we conclude that the judge’s finding that the defendant’s trial lawyer did not promise him probation is not clearly erroneous.

Affirmed.

1 MCLA § 750.520 (Stat Ann 1954 Rev § 28.788).

2 MCLA § 750.85 (Stat Ann 1962 Rev § 28.280).