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04/27/76 PEOPLE v. BOONE

April 27, 1976

PEOPLE
v.
BOONE



Appeal from Genesee, Harry B. McAra, J.

Bronson, P. J., and McGregor and R. M. Maher, JJ.

SYLLABUS BY THE COURT

1. -- Plea of Guilty -- Appeal and Error -- Support in Record.

Appellate review is limited in certain cases where the record made before a defendant tenders a guilty plea does not factually support claims the defendant wishes to urge on appeal; in such cases the defendant must first move in the trial court to set aside the plea, and seek a separate record factually supporting the claims advanced on appeal.

2. -- Plea of Guilty -- Appeal and Error -- Voluntariness of Plea -- Drugs and Narcotics -- Support in Record.

The defendant must first move in the trial court to set aside his guilty plea and seek a separate record factually supporting the claims advanced on appeal where a defendant alleges that his plea of guilty was involuntary because he was under the influence of drugs at the time and the trial court record does not reflect that fact.

3. -- Testimonial Hearing -- Voluntariness of Plea -- Waiver of Rights -- Appeal and Error.

Claims of involuntary pleas of guilty must be heard by the trial Judge and a testimonial hearing must be held, even in cases where the guilty plea proceeding contains a statement by the defendant that the plea is completely voluntary and that it is not induced by promises other than those on the record; this rule is in keeping with the strong constitutional mandate that a waiver of the right to proceed to trial must always be voluntary.

4. -- Voluntariness of Plea -- Affidavits -- Evidentiary Hearing.

A claim that a plea of guilty was involuntarily entered 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 on the voluntariness of his plea.

The opinion of the court was delivered by: Per Curiam

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.

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 ...


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