People v. Draper

Per Curiam.

Defendant pled guilty to a charge of assault with intent to rob while armed, contrary to MCLA 750.89; MSA 28.284. He was sentenced to a term of 10 to 30 years in prison and appeals as of right.

Appellate counsel filed a brief which, in essence, stated that counsel was unable to find any defect in the taking of the plea. Our independent review of the record convinces us that appellate counsel was correct in this regard. Defendant was fully and accurately advised of his constitutional rights. The record contains a substantial factual basis to *355support the plea; and defendant indicated on the record that his plea was truthful and voluntary.

Defendant, being dissatisfied with his appellate counsel, requested that he have additional time to file a brief in his own behalf. This Court granted that request. Defendant subsequently filed with this Court a supplemental brief raising essentially two issues; one relating to the truthfulness of the plea and one relating to the use of the "rights” questionnaire used in Oakland County Circuit Court.

Defendant asserts for the first time in this appeal that his plea was not truthful, in that he was innocent of the crime, had no personal knowledge of the crime, and answered as he did on the record only after being previously coached by trial counsel. It is impossible for this Court to ascertain where the truth lies, when, as here, we are confronted with assertions in an appellate brief which are inconsistent with defendant’s prior on-the-record statements. Since this Court can only base its decision upon the record before it, it is incumbent on defendant to create the necessary record in the trial court. A challenge to the truth or voluntariness of the plea can only be raised on appeal after the question has been preserved by a motion to withdraw the guilty plea made before the trial court, coupled with any necessary evidentiary hearing. See People v Taylor, 387 Mich 209; 195 NW2d 856 (1972).

Defendant’s arguments with respect to the use of the "rights” questionnaire are without merit, since there is no claim that the use of the questionnaire was a substitute for an on-the-record examination of the defendant. Since defendant herein was informed of all his constitutional rights by the judge during the plea proceeding and defendant indicated on the record that he understood *356those rights, any frailties of the questionnaire are moot.

Affirmed.

McGregor and Van Valkenburg, JJ., concurred.