Opinion
Docket No. 24965.
Decided April 27, 1976.
Appeal from Genesee, Harry B. McAra, J. Submitted February 9, 1976, at Lansing. (Docket No. 24965.) Decided April 27, 1976.
John H. Boone was convicted, on his plea of guilty, of assault with intent to rob being armed. Motion by defendant to set aside the plea and for a new trial denied. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert F. Leonard, Prosecuting Attorney, Donald A. Kuebler, Chief, Appellate Division, for the people.
Martin F. Palus, for defendant on appeal.
Before: BRONSON, P.J., and McGREGOR and R.M. MAHER, JJ.
Defendant pled guilty to assault with intent to rob being armed, contrary to MCLA 750.89; MSA 28.284, and was sentenced to a prison term of from 7-1/2 to 15 years. About five months later, the defendant filed a motion to set aside the plea and for a new trial. The trial court denied that motion, and defendant appeals here.
Defendant based his motion below on the claim that his plea was not voluntary because he was under the influence of drugs when it was entered. He now argues that the trial judge erred in ruling on that claim without holding an evidentiary hearing pursuant to People v Ginther, 390 Mich. 436; 212 N.W.2d 922 (1973). We disagree.
People v Ginther, supra, established a rule limiting appellate review in certain cases: If the record made before a defendant tenders a guilty plea does not factually support claims he wishes to urge on appeal, he must first move in the trial court to set aside the plea, and seek a separate record factually supporting the claims. See, also, People v Taylor, 387 Mich. 209, 218; 195 N.W.2d 856 (1972). That rule applies to allegations by defendant that his plea was involuntary because he was under the influence of drugs at that time, if, as here, the record does not reflect that fact, People v Kenny Smith, 20 Mich. App. 307; 174 N.W.2d 8 (1969).
Claims of involuntary pleas must be heard by the trial judge, and a testimonial hearing held, even in cases where the guilty plea proceeding contains a statement by defendant that his plea is completely voluntary and that it is not induced by promises other than those on the record. That rule is stated in People v Bartlett, 17 Mich. App. 205, 218; 169 N.W.2d 337 (1969), as follows:
"We recognize that it is relatively easy for a defendant disappointed as to either the length of the sentence or distressed with his incarceration in prison to file the kind of affidavit that Bartlett filed in this case. Claims such as these are rightly looked upon with suspicion. Nevertheless, if Bartlett's assertions are true, he is entitled to withdraw the plea of guilty upon which he was convicted.
"There is no way that a trial judge or we can decide the truth or falsity of the defendant's assertions on affidavit without a testimonial hearing."
That rule is in keeping with the strong constitutional mandate that a waiver of the right to proceed to trial must always be "voluntary". See, People v Jaworski, 387 Mich. 21; 194 N.W.2d 868 (1972).
As the Bartlett Court points out, there is the potential for the assertion of a large number of frivolous claims that the plea was involuntarily entered. Consequently, the Michigan courts have imposed one limitation on the above rule. The assertion that defendant did not act voluntarily must be supported by an affidavit, and that affidavit must contain more than mere vague allegations, in order to entitle the defendant to an evidentiary hearing. People v Scruggs, 14 Mich. App. 47; 165 N.W.2d 316 (1968), People v Kindell, 17 Mich. App. 22; 168 N.W.2d 909 (1969), People v Dickerson, 17 Mich. App. 201; 169 N.W.2d 336 (1969), People v Bartlett, supra, People v Wanzer, 36 Mich. App. 169; 193 N.W.2d 384 (1971), People v Buchanan, 49 Mich. App. 574; 212 N.W.2d 290 (1973), People v Winegar, 380 Mich. 719; 158 N.W.2d 395 (1968), People v Williams, 391 Mich. 832 (1974).
Here, defendant tendered no affidavits at all, even though the very form on which defendant filed his motion indicated that necessary supporting affidavits should be attached. We hold that the trial judge properly ruled without a testimonial hearing on defense counsel's bare assertion that defendant "told me he was using drugs heavily" at the time of the plea. We further hold that the trial judge did not abuse his discretion in denying defendant's motion to set aside the plea.
Affirmed.