Opinion
Docket No. 115513.
Decided March 5, 1990.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William A. Forsyth, Prosecuting Attorney, Timothy K. McMorrow, Chief Appellate Attorney, and Helen V. Brinkman, Assistant Prosecuting Attorney, for the people.
Jack F. Vogl, for defendants.
Before: CAVANAGH, P.J., and McDONALD and MARILYN KELLY, JJ.
This case involves the alleged theft of auto parts by four brothers. Gerald and Phillip Lafay pled guilty to attempted larceny in a building. MCL 750.360; MSA 28.592, MCL 750.92; MSA 28.287. Stephen and Paul Lafay pled guilty to receiving or concealing stolen property over $100. MCL 750.535; MSA 28.803. The court sentenced Phillip, Stephen and Paul to three years probation with the first year in the Kent County Jail. Gerald was given three years probation with eighty hours of community service. All four appeal as of right. We affirm.
Defendants contend that the trial judge abused his discretion in denying their motions to withdraw their pleas. They assert that the judge failed to advise them of possible conflicts of interest arising from their joint representation by one lawyer. This violation of the court rule, they argue, mandates reversal. MCR 6.005(F), formerly MCR 6.101(C)(4). They also claim there was an inadequate factual basis for their pleas. Phillip and Gerald maintain that there was no evidence of a building. Stephen and Paul claim there is no proof that the stolen items were worth over $100.
The judge denied the motions to withdraw guilty pleas, concluding they were frivolous. Defendants brought the motions only after they were shown the presentence reports, two days before the scheduled sentencing. The court believed defendants' concern was not the propriety of the plea-taking proceeding, but rather the likelihood of stiffer sentences than originally anticipated. Concern about the potential penalty is an insufficient basis to permit withdrawal of a guilty plea. People v Paulus, 121 Mich. App. 445; 328 N.W.2d 659 (1982).
Regarding the conflict issue, representation of multiple codefendants by one attorney can lead to a conflict of interest serious enough to deprive any of them of effective assistance of counsel. Holloway v Arkansas, 435 U.S. 475; 98 S Ct 1173; 55 L Ed 2d 426 (1978). Such a conflict is never presumed or implied. A defendant has the burden of establishing a prima facie case of ineffective assistance of counsel. He must show that an actual conflict of interest existed and adversely affected the adequacy of his representation. Cuyler v Sullivan, 446 U.S. 335, 348-350; 100 S Ct 1708; 64 L Ed 2d 333 (1980).
A procedure the court must follow when faced with joint representation has been devised for the purpose of preventing ineffective assistance of counsel. It is set forth at MCR 6.005(F), formerly MCR 6.101(C)(4). The failure to follow this court rule, in itself, does not constitute reversible error. People v Gamble, 124 Mich. App. 606, 611; 335 N.W.2d 101 (1983); People v Harding, 163 Mich. App. 298, 319; 413 N.W.2d 777 (1987), vacated on other grounds 430 Mich. 859 (1988).
Defendants have not alleged any facts showing a conflict of interest existed which could have caused them to receive ineffective assistance of counsel. In fact all four have continued to be represented on appeal by the same attorney they retained at the trial level. Their attorney made a point of stating at the plea proceedings:
My clients from the initial day, the initial interview of this matter, were advised of a potential conflict of interest, and they all agreed and all during the proceedings agreed to waive that. I just thought I should put that on the record so the Court is aware.
We find no error involving a conflict of interest in this case.
Next, we address defendants' claims regarding the factual basis of their pleas. We review the trial court's decision to deny a motion to withdraw a guilty plea for an abuse of discretion. People v Bencheck, 360 Mich. 430, 432; 104 N.W.2d 191 (1960); People v Lewis, 176 Mich. App. 690, 693; 440 N.W.2d 12 (1988).
Stephen and Paul claim that there was no proof that the stolen items were worth over $100. However, both contradicted that statement at the plea proceedings where they admitted the items were valued at more than $100. The court did not abuse its discretion in finding the value of the stolen auto parts to exceed $100.
Phillip and Gerald were originally charged with receiving or concealing stolen property and pled guilty to attempted larceny from a building. They maintain that there was no evidence of a building to support their convictions. They are correct. It does not follow, however, that the judge erred in accepting their plea to attempted larceny in a building.
The judge, through questioning a defendant, must establish factual support for the offense charged or for the offense to which the defendant is pleading. MCR 6.302(D)(1), formerly MCR 6.101(F)(3)(a). The judge may take evidence on each element of the crime charged, even if the elements of the lesser offense are not made out by a defendant's recitation of facts. This is true even if the crime pled to is not a lesser included offense of the crime charged. People v Hutcherson, 96 Mich. App. 365; 292 N.W.2d 466 (1980).
In this case, as the prosecutor noted at the plea proceedings, the facts supported Phillip and Gerald's guilt of the offense charged, receiving and concealing stolen property. Defendants do not allege that the judge failed to establish all elements of that crime.
Therefore, we find no error in the court's denial of defendants' motions.
Affirmed.