People v. Cleveland

35 Mich. App. 316 (1971) 192 N.W.2d 341 PEOPLE v. CLEVELAND Docket No. 11123. Michigan Court of Appeals. Decided July 27, 1971. Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, *317 Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Arthur N. Bishop, Assistant Prosecuting Attorney, for the people. Charles Burke, for defendant on appeal. Before: McGREGOR, P.J., and BRONSON and DANHOF, JJ. McGREGOR, P.J. The defendant pled guilty to breaking and entering an occupied dwelling with intent to commit larceny therein. MCLA § 750.110 (Stat Ann 1971 Cum Supp § 28.305). He was sentenced to a term of 4 to 15 years in prison with a recommendation for the Michigan Training Unit. His delayed motion to withdraw his guilty plea was denied by the trial court on April 2, 1971. On appeal the defendant alleges that the trial court abused its discretion in denying the defendant's delayed motion to withdraw his plea of guilty. The issue is without merit. This Court has repeatedly held that Boykin v. Alabama (1969), 395 US 238 (89 S Ct 1709, 23 L Ed 2d 274) does not require on-the-record statements waiving the privilege against compulsory self-incrimination, the right to trial by jury, and the right to confront one's accusers. People v. Jaworski (1970), 25 Mich App 540, appeal pending; People v. Sepulvado (1970), 27 Mich App 66; People v. Miles (1970), 28 Mich App 562; People v. Dawkins (1971), 30 Mich App 186; and People v. Mitchell (1971), 30 Mich App 233. Additionally, the defendant was advised on the record of his constitutional rights by both the defense counsel and the trial court. The granting of a delayed motion to withdraw a guilty plea when made after conviction and sentence, as in this case, must be based upon a showing of a miscarriage of *318 justice. People v. Winegar (1968), 380 Mich 719. The defendant has not carried his burden of alleging facts which if true substantiate a finding that there was a miscarriage of justice. The question sought to be reviewed is so unsubstantial as to require no argument or formal submission. Motion to affirm is granted. DANHOF, J., concurred. BRONSON, J. (concurring). I concur in affirming the defendant's conviction because the trial judge, in accepting defendant's plea, complied with what I consider to be the requirements of Boykin v. Alabama (1969), 395 US 238 (89 S Ct 1709, 23 L Ed 2d 274). See People v. Martin (1970), 29 Mich App 295, 298 (BRONSON, J., dissenting).