Opinion
Docket No. 11039.
Decided September 29, 1971. Leave to appeal denied, 386 Mich. 786.
Appeal from Kent, Stuart Hoffius, J. Submitted Division 3 August 31, 1971, at Grand Rapids. (Docket No. 11039.) Decided September 29, 1971. Leave to appeal denied, 386 Mich. 786.
Kenneth Wanzer was convicted, on his plea of guilty, of attempt to utter and publish. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James K. Miller, Prosecuting Attorney, and Donald A. Johnston, III, Chief Appellate Attorney, for the people.
Edward Malinzak, for defendant on appeal.
Before: T.M. BURNS, P.J., and R.B. BURNS and HOLBROOK, JJ.
The defendant and a codefendant were charged with forgery and uttering and publishing. On the day set for trial, the information was amended to add a third count of attempt to utter and publish, MCLA § 750.92 (Stat Ann 1962 Rev § 28.287) and MCLA § 750.259 (Stat Ann 1962 Rev § 28.446), to which the defendant and his codefendant pled guilty. Three and one-half months after the sentencing the defendant filed a motion to withdraw the plea and his affidavit in support thereof. A hearing was held and the motion was denied.
The affidavit contained unspecific allegations and did not state facts, which if true, would substantiate the defendant's claim that the plea was not freely and voluntarily and understandingly made. People v. James Smith (1970), 27 Mich. App. 650 and People v. Winegar (1968), 380 Mich. 719. Further, this Court is not impressed by the recanting statements of witnesses who claim they perjured themselves. People v. Jimmerson (1971), 30 Mich. App. 147.
The defendant was not denied an evidentiary hearing. Cf. People v. Doster (1970), 25 Mich. App. 169 and People v. Jones (1971), 385 Mich. 288. Before denying the motion, the court commented on the fact that there was no other substantiating affidavit of any kind or any other evidence of any kind offered at the hearing. This Court will not consider the affidavit of the codefendant because it was not before the trial court. See People v. Barron (1970), 27 Mich. App. 379.
There was no abuse of the trial court's discretion in denying the motion to withdraw guilty plea. People v. Sylvester Johnson (1970), 25 Mich. App. 258. The issue raised is so unsubstantial as to require no argument or formal submission. The motion to affirm is granted.