People v. Whitmer , 16 Mich. App. 703 ( 1969 )

16 Mich. App. 703 (1969) 168 N.W.2d 908

PEOPLE
v.
WHITMER

Docket No. 5,438.

Michigan Court of Appeals.

Decided March 28, 1969. Rehearing denied April 28, 1969. Leave to appeal denied January 28, 1970.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, S. Jerome Bronson, Prosecuting Attorney, and Dennis Donohue, Chief Appellate Counsel, for the people.

William C. Ibershof, for defendant.

BEFORE: LESINSKI, C.J., and FITZGERALD and V.J. BRENNAN, JJ.

Leave to appeal denied January 28, 1970. See 383 Mich. 763.

PER CURIAM:

Defendant requested of the trial court, before sentencing, to withdraw his plea of guilty to the included offense of attempted breaking and entering.^[*] Defendant appeals from the denial of his request.

At the time of his request, the defendant stated to the court that the reason for his guilty plea was that he had been told that his younger brother would receive lenient consideration in a similar charge, which the brother did receive.

The Michigan Supreme Court said in People v. Bencheck (1960), 360 Mich. 430:

"Generally, it is considered that there is no absolute right to withdrawal of a guilty plea. People v. Case, 340 Mich. 526; People v. Banning, 329 Mich. 1. See, also, 14 Am Jur, Criminal Law, § 286. But this Court's decisions suggest that the trial judge's discretion be exercised with great liberality when the motion is made prior to sentence or commencement of trial. People v. Piechowiak, 278 Mich. 550; People v. Stone, 293 Mich. 658; People v. Sheppard, 316 Mich. 665; People v. Anderson, 321 Mich. 533."

Further, in People v. Banning, supra, p 7, the Supreme Court said:

"The rationale behind these cases is apparent. The right to trial by jury in criminal cases is a substantial constitutional right, as are the attendant rights of confrontation, cross-examination, et cetera."

This Court in People v. Hollman (1968), 12 Mich. App. 231, 235, said, "At any time prior to trial and sentencing, courts must be patient with indecisive defendants concerning their basic constitutional right to a trial by jury."

The judge, however, need not grant the request if it appears to be obviously frivolous, People v. Zaleski (1965), 375 Mich. 71.

The problem in these cases, a practical one, is that widespread use of the practice would hinder the administration of justice, especially in jurisdictions with crowded criminal dockets, in that all witnesses who were discharged from any subpoena obligation at the time of the plea, now have to be relocated and subpoenaed for trial. Where the case clearly indicates the request for withdrawal of plea before sentencing is a dilatory tactic, then the trial court should deny the request if it appears the plea was freely and voluntarily made.

A review of the record in this cause shows that the defendant's plea was not voluntary. The record clearly reveals facts which sustain the defendant's statement to the court that he was pleading guilty out of concern for his brother. Under these circumstances the trial court should have set aside the plea and granted the defendant a trial.

The facts in this case coincide closely with those in the Hollman Case, supra.

Reversed and remanded for trial.

NOTES

[*] Attempt: MCLA § 750.92 (Stat Ann 1962 Rev § 28.287); Breaking and Entering: MCLA § 750.110 (Stat Ann 1968 Cum Supp § 28.305).