People v. Morgan

235 N.W.2d 154, 63 Mich. App. 686, 1975 Mich. App. LEXIS 1217

• Court: Michigan Court of Appeals
• Decided: August 26, 1975
• Docket: Docket 20700
• Status: Published

Opinions

V. J. Brennan, P. J.

Defendant, Frank Morgan, pled guilty to the crime of second-degree murder, MCLA 750.317; MSA 28.549, and was sentenced to life in prison. He now appeals as of right presenting one issue for our consideration. We affirm.

Defendant was originally charged with first-degree murder, MCLA 750.316; MSA 28.548, in connection with the shooting death of Gerald J. Riley, an off-duty Detroit police officer. In January of 1973 defendant was permitted to plead guilty to second-degree murder over the prosecutor’s strenuous objections. When defendant appeared for sentencing he asked to withdraw his plea and the trial judge denied his request. He was sentenced to life in prison. The prosecution thereupon filed in this Court a complaint for superintending control and a motion for an order to show cause which was denied on May 25, 1973, based on this Court’s reading of Genesee Prosecutor v Genesee Circuit Judge, 386 Mich 672; 194 NW2d 693 (1972), Wayne County Prosecuting Attorney v Recorder’s Court Judge, 47 Mich App 615; 209 NW2d 610 (1973). The prosecution’s application for leave to appeal to our Supreme Court was held in abeyance pending the outcome of Genesee Prosecutor v Genesee Circuit Judge, 391 Mich 115; 215 NW2d 145 (1974). On March 27, 1974, our Supreme Court, on the basis of their decision in the above case, set aside defendant’s plea and remanded the case for trial on the first-degree murder charge. Wayne County Prosecuting Attorney v Recorder’s Court Judge, 391 Mich 791 (1974).

After the case was remanded the prosecutor withdrew his objection to the reduced plea and the defendant again waived his right to a trial and asked the court to accept his plea to second-degree murder. After thoroughly questioning defendant, the court, apparently being convinced the plea was voluntarily and knowingly given, again accepted his plea and ordered that a new presentence report be prepared. Before sentencing the defendant wrote a letter to the trial court stating that he was innocent and informing the judge that he wanted to withdraw this second plea. He filed a motion for a new trial and repeated his request at the time of sentencing. The trial court denied the request and imposed sentence.

We have reviewed the plea-taking procedures in this case and find them to be very thorough and in compliance with all plea-taking requirements. Defendant claims he thought he could, at any time prior to sentencing, withdraw his plea and says his trial lawyer so advised him. We do not feel this, in itself, is an absolute ground for withdrawal of a plea. The entire record must be examined.

After doing so we are convinced that this defendant’s plea was knowingly and voluntarily made. To say the least, we are not impressed or sympathetic with this defendant’s claimed naivete. An examination of defendant’s criminal record discloses that he was well familiar with the plea-taking process. Several charges against defendant were disposed of by pleas. Furthermore, and more importantly, after defendant offered his first plea of guilty to the charge of second-degree murder he also sought to withdraw his guilty plea before sentencing, but the trial judge denied the motion at that time also. In light of this we, like the trial judge, simply are not persuaded by his present claims. In fact, it appears to us that this defendant is merely sentence-and-judge shopping.

We have carefully weighed all the factors here and find that the trial court did not abuse its discretion by refusing to grant the motion to withdraw the plea.

Affirmed.

O’Hara, J., concurred.