People v. Howard , 38 Mich. App. 217 ( 1972 )

38 Mich. App. 217 (1972) 195 N.W.2d 925

PEOPLE
v.
GREGORY HOWARD

Docket No. 11942.

Michigan Court of Appeals.

Decided January 26, 1972.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and John L. Quaine, Assistant Prosecuting Attorney, for the people.

Sidney Kraizman, for defendant on appeal.

Before: HOLBROOK, P.J., and T.M. BURNS and DANHOF, JJ.

PER CURIAM.

Defendant pled guilty to a charge of assault with intent to rob being armed, MCLA 750.89; MSA 28.284. Prior to sentencing the defendant moved to withdraw his plea. The trial court denied the motion and we reverse.

While a motion to withdraw a guilty plea is addressed to the trial court's discretion, that discretion should be exercised liberally when the motion is made before sentencing and is accompanied by an assertion of innocence. People v Bencheck, 360 Mich. 430 (1960); People v Henley, 36 Mich. App. 672 (1971). In this case the defendant's motion was made before sentencing and he did assert his innocence.

In addition, the record shows that while the defendant was questioned in some detail on a number of things the defendant, himself, never pled guilty. The plea was entered by his attorney. Under GCR 1963, 785.3, and MCLA 768.35; MSA 28.1058, it is the defendant who must plead. See People v Barrows, 358 Mich. 267 (1959); People v Head, 31 Mich. App. 491 (1971). The transcript of the arraignment and the plea also contain several statements by the defendant that could be construed as protestations of innocence. See People v Merhige, 212 Mich. 601 (1920).

Reversed and remanded.