People v. James Smith

Michigan Court of Appeals

People v. James Smith

183 N.W.2d 866, 27 Mich. App. 650, 1970 Mich. App. LEXIS 1396

CourtMichigan Court of Appeals

DecidedOctober 30, 1970

DocketDocket 8,628

StatusPublished

Cited by4 cases

This text of 183 N.W.2d 866 (People v. James Smith) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. James Smith, 183 N.W.2d 866, 27 Mich. App. 650, 1970 Mich. App. LEXIS 1396 (Mich. Ct. App. 1970).

Pincite

Opinion

O’Hara, J.

On October 12, 1966, the defendant pleaded guilty to the charge of assault with intent to rob being armed. MCLA § 750.89 (Stat Ann 1962 Rev § 28.284). The plea was accepted by Detroit Recorder’s Court, Judge Vincent J. Brennan, and on the same day defendant was sentenced to *652 serve from 7-1/2 to 15 years. Defendant’s application for delayed appeal has been granted.

The first issue raised by defendant is whether in accepting the guilty plea the trial judge complied with GCR 1963, § 785.3(2). The only possible deviation from the above rule was that the trial judge permitted the police to recite the facts concerning the commission of the crime. The rule requires only a reasonable ascertainment of the truth of the plea. People v. Bartlett (1969), 17 Mich App 205. The trial judge is permitted a measure of discretion in the procedures by which such ascertainment is made and we find no abuse of that discretion here. People v. Bumpus (1959), 355 Mich 374; People v. Dunn (1968), 380 Mich 693.

Defendant’s motion for a new trial and withdrawal of his guilty plea was denied by the trial court without holding an evidentiary hearing on the voluntariness of the plea. Defendant does not contest that the withdrawal of a plea of guilty after sentence rests in the sound discretion of the court. See People v. Wolschon (1966), 2 Mich App 186. He asserts, however, that he is entitled to a hearing on the voluntariness of the plea. When defendant makes substantial factual allegations supporting his claim that his plea was involuntary, an evidentiary hearing should be had; however, unspecific allegations of false promises will not support a hearing. People v. Kindell (1969), 17 Mich App 22; People v. Dickerson (1969), 17 Mich App 201; People v. Kinsman (1970), 21 Mich App 242.

Defendant supports his allegations of involuntariness in the following paragraph of his affidavit:

“That I was misled by my attorney and the sergeant in charge of this case to enter the plea of guilty, and such plea was not understanding^ made, but was made with undue influence, compulsion and *653 in understanding that leniency in sentence would follow”.

These allegations constitute the barest of legal conclusions. Defendant specifies no conduct on the part of his attorney or the “sergeant” which might have “misled” him into his plea. Neither does he specify the source of his “understanding that leniency in sentence would follow”. These general complaints add nothing to defendant’s clearly expressed feeling that he should he relieved of a sentence which may have surprised him. As in People v. Kinsman, supra, “defendant does not protest his innocence, hut, in effect, only that his sentence is too harsh”, (p 243.) There is nothing in these allegations which would justify an evidentiary hearing.

Affirmed.

All concurred.

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O’Hara, J.

On October 12, 1966, the defendant pleaded guilty to the charge of assault with intent to rob being armed. MCLA § 750.89 (Stat Ann 1962 Rev § 28.284). The plea was accepted by Detroit Recorder’s Court, Judge Vincent J. Brennan, and on the same day defendant was sentenced to *652 serve from 7-1/2 to 15 years. Defendant’s application for delayed appeal has been granted.

The first issue raised by defendant is whether in accepting the guilty plea the trial judge complied with GCR 1963, § 785.3(2). The only possible deviation from the above rule was that the trial judge permitted the police to recite the facts concerning the commission of the crime. The rule requires only a reasonable ascertainment of the truth of the plea. People v. Bartlett (1969), 17 Mich App 205. The trial judge is permitted a measure of discretion in the procedures by which such ascertainment is made and we find no abuse of that discretion here. People v. Bumpus (1959), 355 Mich 374; People v. Dunn (1968), 380 Mich 693.

Defendant’s motion for a new trial and withdrawal of his guilty plea was denied by the trial court without holding an evidentiary hearing on the voluntariness of the plea. Defendant does not contest that the withdrawal of a plea of guilty after sentence rests in the sound discretion of the court. See People v. Wolschon (1966), 2 Mich App 186. He asserts, however, that he is entitled to a hearing on the voluntariness of the plea. When defendant makes substantial factual allegations supporting his claim that his plea was involuntary, an evidentiary hearing should be had; however, unspecific allegations of false promises will not support a hearing. People v. Kindell (1969), 17 Mich App 22; People v. Dickerson (1969), 17 Mich App 201; People v. Kinsman (1970), 21 Mich App 242.

Defendant supports his allegations of involuntariness in the following paragraph of his affidavit:

“That I was misled by my attorney and the sergeant in charge of this case to enter the plea of guilty, and such plea was not understanding^ made, but was made with undue influence, compulsion and *653 in understanding that leniency in sentence would follow”.

These allegations constitute the barest of legal conclusions. Defendant specifies no conduct on the part of his attorney or the “sergeant” which might have “misled” him into his plea. Neither does he specify the source of his “understanding that leniency in sentence would follow”. These general complaints add nothing to defendant’s clearly expressed feeling that he should he relieved of a sentence which may have surprised him. As in People v. Kinsman, supra, “defendant does not protest his innocence, hut, in effect, only that his sentence is too harsh”, (p 243.) There is nothing in these allegations which would justify an evidentiary hearing.

Affirmed.

All concurred.

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Bluebook (online)

183 N.W.2d 866, 27 Mich. App. 650, 1970 Mich. App. LEXIS 1396, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-james-smith-michctapp-1970.

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