PEOPLE OF MI V KEITH ALLEN POOLE
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S T A T E O F M I C H I G A N
C O U R T O F A P P E A L S
PEOPLE OF THE STATE OF MICHIGAN,
UNPUBLISHED
October 1, 1996
Plaintiff-Appellee,
v
No. 183217
LC Nos. 94-069868-FH;
94-070605-FH
KEITH ALLEN POOLE,
Defendant-Appellant.
Before: J.H. Gillis, P.J., and G.S. Allen and J.B. Sullivan, JJ.*
MEMORANDUM.
Defendant pleaded nolo contendere to two counts of second-degree criminal sexual conduct
(CSC II), MCL 750.520c(1)(a); MSA 28.788(3)(1)(a), and guilty to habitual offender, third offense,
MCL 769.11, MSA 28.1083, in LC No. 94-069868-FH. He pleaded nolo contendere to third
degree criminal sexual conduct (CSC III), MCL 750.520d(1)(a); MSA 28.788(4)(1)(a), and guilty to
habitual offender, third offense, MCL 769.11, MSA 28.1083, in LC No. 94-070605-FH. He was
sentenced to concurrent terms of ten to thirty years’ imprisonment for all three CSC convictions, as
enhanced by the habitual offender convictions. He appeals as of right. We affirm defendant’s
convictions and sentence in LC No. 94-070605-FH, but remand for a determination whether the trial
court resolved defendant’s motion to withdraw his no contest pleas in LC No. 94-069868-FH. This
case has been decided without oral argument pursuant to MCR 7.214(E)(1)(b).
Defendant argues that the trial court erred in failing to consider his motion to withdraw his no
contest pleas to CSC II prior to sentencing. Although there is no absolute right to withdraw a guilty
plea once it has been accepted by the trial court, People v Effinger, 212 Mich App 67, 69; 536
NW2d 809 (1995), MCR 6.310(B) allows a defendant to move to withdraw a plea before sentencing.
*Former Court of Appeals judges, sitting on the Court of Appeals by assignment pursuant to
Administrative Order 1996-3.
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Where a defendant files a motion and supporting affidavit claiming that his plea was induced by his
attorney’s faulty advice and a proffer of proof is made on the record, the defendant is entitled to an
evidentiary hearing. People v Jackson, 203 Mich App 607, 612; 513 NW2d 206 (1994).
In moving to set aside the pleas, defendant claimed that his appointed counsel did not
adequately inform him of all possible alternatives, that the witnesses he wanted subpoenaed were not
subpoenaed and he felt forced to plead no contest, that he felt hurried, that he continued to assert he did
not commit the crimes charged, and that he only pleaded no contest because he was advised he may
have to serve a life sentence. A hearing scheduled on the motion was not held, and no mention of the
motion was made at sentencing. Because the record does not indicate whether a ruling was made on
the motion, the case is remanded to the trial court for a determination whether defendant’s motion to
withdraw was resolved; if not, a hearing on the motion should be held.
Defendant’s sentences do not violate the principle of proportionality. People v Milbourn, 435
Mich 630, 661; 461 NW2d 1 (1990); People v McCrady, 213 Mich App 474, 483; 540 NW2d 718
(1995). In sentencing defendant, the trial court properly considered the predatory nature of defendant’s
conduct, his criminal history of four prior felonies, and his substance abuse, as well as the goals of
rehabilitation and the protection of society. Moreover, as a third habitual offender, defendant was
subject to a minimum sentence of up to twenty years in prison. MCL 750.520c(1)(a); MSA
28.788(3)(1)(a); MCL 750.520d(1)(a); MSA 28.788(4)(1)(a); MCL 769.11; MSA 28.1083; People
v Tanner, 387 Mich 683; 199 NW2d 202 (1972). Under the circumstances, defendant’s ten-year
minimum sentences are not disproportionate.
We affirm defendant’s convictions and sentence in LC No. 94-070605-FH, and remand for
further proceedings consistent with this opinion in LC No. 94-069868-FH. We do not retain
jurisdiction.
/s/ John H. Gillis
/s/ Glenn S. Allen, Jr.
/s/ Joseph B. Sullivan
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