
16 Mich. App. 145 (1969)
167 N.W.2d 598
PEOPLE
v.
ESPARZA
Docket No. 5,683.
Michigan Court of Appeals.
Decided February 25, 1969.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Samuel J. Torina, Chief Appellate Lawyer, and Luvenia D. Dockett, Assistant Prosecuting Attorney, for the people.
Louis Rosenzweig, for defendant on appeal.
BEFORE: J.H. GILLIS, P.J., and QUINN and LEVIN, JJ.
J.H. GILLIS, P.J. and QUINN, J.
Michael Frank Esparza pled guilty to possession of narcotics in violation of CLS 1961, § 335.153 (Stat Ann 1957 Rev § 18.1123), and was sentenced. On appeal, he contends that his plea was induced by a promise by *147 authorities to return his automobile which had been ordered forfeited, and that he was innocent because of entrapment by police.
We find no support in the record for these claims. On the contrary the transcript of the plea discloses that defendant's plea was freely, understandingly, and voluntarily made, without promises of any kind. The record offers no support for the claim of innocence. If the record supported defendant's contention that he was induced to obtain and sell narcotics by a police informer, no defense would be established thereby. People v. Martin (1965), 1 Mich App 265, 270. The record demonstrates compliance with GCR 1963, 785.3.
Affirmed.
LEVIN, J. (dissenting).
The defendant's affidavit in support of his motion for a new trial states that he agreed to plead guilty only after assurances from his trial counsel, following conferences asserted to have taken place between such counsel and officers of the State police and others unknown to the defendant, that if he did plead guilty his automobile, which had been seized by the police, would be returned to him. The affidavit further asserts that the automobile was not returned although the defendant did plead guilty. No answering affidavit or other response was filed by the people.
The defendant's affidavit is, in my opinion, in sufficient detail to entitle him to a testimonial hearing on the question whether such a promise was made and, if so, whether it was fulfilled.
If the trier of fact were to find upon such hearing that the alleged promise was made by a State official and not kept, the defendant would then be entitled to have his guilty plea set aside. In re Valle (1961), 364 Mich 471, 478; Machibroda v. United States *148 (1962), 368 US 487, 493 (82 S Ct 510, 513, 7 L Ed 2d 473). If the trier of fact were to find that the promise was falsely made by defendant's trial counsel, the defendant would in my opinion in that case also be entitled to have his plea set aside. People v. Byrd (1968), 12 Mich App 186, 226 (per LEVIN, J., concurring).
For the reasons stated, I would remand for such a hearing. If the trial judge finds the alleged promise was not made, then the conviction should indeed be affirmed as defendant's plea of guilty waived whatever defenses he could have asserted at a trial.
