Guilty Plea Cases (State Report Title: People v. Nicholson), In re
| Decision Date | 07 November 1975 |
| Citation | 395 Mich. 96,235 N.W.2d 132 |
| Parties | In re GUILTY PLEA CASES. * ** Nos 2--25. |
| Court | Michigan Supreme Court |
William L. Cahalan, Pros. Atty., Patricia J. Boyle, Principal Atty., Research, Training & Appeals, and Arthur N. Bishop, Asst. Pros. Atty., Detroit, for the people in Nos. 2--7 and 9--17.
Lawrence B. MacDonald, Detroit, for defendant-appellant, Maurice nicholson.
State Appellate Defender Office by John A. Lydick, Asst. Defender, Detroit, for defendant-appellant, Derek M. Torres.
Robert L. Ziolkowski, East Detroit, for defendant-appellant, Samuel Stephens.
Carl Ziemba, Detroit, for defendant-appellant, Timothy R. Smith.
Thomas A. Neenan, Detroit, for defendant-appellant, Alvin Howell.
Thomas J. Cavanaugh, Detroit, for defendant-appellant, Larry W. Hord.
M. Jon Posner, Detroit, for defendant-appellant, James C. Crowder.
William L. Cahalan, Pros. Atty., Patricia J. Boyle, Principal Attorney, Research, Training & Appeals, and Raymond P. Walsh, Asst. Prosecuting Atty., Detroit, for the people in No. 8.
Richard L. Ruby, Southfield, for defendant-appellant, Gary M. Burkett.
J. Thomas Carroll, Jr., Detroit, for defendant-appellant, Samuel Neal.
Carl Ziemba, Detroit, for defendant-appellant, Leo Sanders.
Theodore B. Sallen, Detroit (Alvin C. Sallen, Detroit, of counsel), for defendants-appellants, Charles Dillard and Earl G. Young.
Lawrence R. Greene, Detroit, for defendant-appellant, Alvin Victor.
George C. Dovas, Southfield, for defendant-appellant, Felicia Harrell.
Raymond L. Miller, Detroit, for defendant-appellant, Michael Robinson.
State Appellate Defender Office by Kathleen M. Cummins, Asst. Defender, Detroit, for defendant-appellant, Warren R. Simpson.
Nick Dottermann, New Baltimore, for defendant-appellant, Benjamin C. Courtney.
George N. Parris, Pros. Atty., Don L. Milbourn, Chief Appellate Lawyer, and William A. Dardy, Asst. Pros. Atty., Mount Clemens, for the people in No. 18.
State Appellate Defender Office by John A. Lydick, Asst. Defender, Detroit, for defendant-appellant, David Pleasants.
William F. Delhey, Pros. Atty. by John J. Hensel, Sr., Asst. Pros. Atty., Ann Arbor, for the people in No. 19.
Raymond C. June, Flint, for defendant-appellant, Norman D. Buck.
Robert F. Leonard, Pros. Atty., and Donald A. Kuebler, Chief Appellate Division, Flint, for the people in No. 20.
Gerald J. Supina, Portland, for defendant-appellant, Gary L. Grohoski.
James L. Banks, Pros. Atty., Pros. Attys. Appellate Service by Edward R. Wilson, III, Director, and Howard C. Marderosian, Sp. Asst. Atty. Gen., Lansing, for the people in No. 21.
State Appellate Defender Office by Kenneth Lerner, Asst. Defender, Detroit, for defendant-appellant, Terry L. Adkins.
Judd R. Spray, Asst. Pros. Atty., Jackson, for the people in No. 22.
State Appellate Defender Office by Kenneth Lerner, Asst. Defender, Detroit, for defendant-appellant, Kenneth Bauer.
St. Clair County Pros. Atty. by Peter R. George, Chief Appellate Atty., Port Huron, for the people in No. 23.
State Appellate Defender Office by Daniel J. Wright, Asst. Defender, Detroit, for defendant-appellant, Gary Cotton.
Eaton County Prosecutor's Office by Chester S. Sugierski, Jr., Asst. Pros. Atty., Charlotte, for the people in No. 24.
State Appellate Defender Office by Francis Zebot, Asst. Defender, Detroit, for defendant-appellant, Terry L. Anderson.
George B. Mullison, Chief Asst. Pros. Atty., Bay City, for the people in No. 25.
Pros. Attys. Ass'n of Michigan, Pros. Attys. Appellate Service by Dennis M. Powers, Asst. Atty. Gen., Dept. of Atty. Gen., Lansing, William L. Cahalan, Pros. Atty., Patricia J. Boyle, Principal Atty., Research, Training & Appeals, and Arthur N. Bishop, Asst. Pros. Atty., Detroit, L. Brooks Patterson, Pros. Atty., Oakland County, by Robert C. Williams, Chief Appellate Counsel, Pontiac, State Appellate Defender Office by James R. Neuhard, Director, John A. Lydick, Daniel J. Wright, and Kathleen Cummins, Asst. Defenders, Detroit, amicus curiae.
In People v. Shekoski, 393 Mich. 134, 224 N.W.2d 656 (1974), this Court reversed a guilty plea conviction and declared:
After the Shekoski order was entered, the Court of Appeals reversed a large number of guilty plea convictions for failure of the trial court to comply strictly with Rule 785.7. Prosecutors have filed applications for leave to appeal in some of those cases.
We became convinced that we should reconsider the policy expressed in Shekoski, and we entered two orders--the first granting leave to appeal in 114 appears pending in the Court of Appeals (394 Mich. 776), and the second directing the Court of Appeals to hold in abeyance any decision on the merits of issues related to the integrity of the plea-taking procedure in all other cases (394 Mich. 946).
Oral arguments were scheduled in these 24 of the 114 transferred appeals. The remaining 90 have not yet been submitted.
We conclude that the policy expressed in Shekoski, that any failure of strict adherence to the procedure and practice specified in Rule 785.7 mandates reversal, should be modified. Noncompliance with a requirement of Rule 785.7 may but does not necessarily require reversal.
Whether a particular departure from Rule 785.7 justifies or requires reversal or remand for additional proceedings will depend on the nature of the noncompliance.
Rule 785.7 requires that before a plea of guilty may be accepted, the trial judge shall--personally address the defendant and inform him of and determine that he understands
i) the general nature of the charge to which the plea if offered;
ii) the sentence which may be imposed and the possibility of other sentence consequences;
iii) that his plea of guilty waives his right to a trial and to certain constitutional and other rights incident to a trial; and
--place on the record
iv) a factual basis for the plea; and
v) any plea agreement.
These 24 appeals present some of the issues which have arisen in the application of this rule.
Personally Address
Rule 785.7 provides:
'.7 Plea of Guilty and Plea of Nolo Contendere. A defendant may enter a plea of guilty or plead nolo contendere only with the consent of the court. If the defendant states his intent to plead guilty or to plead nolo contendere the following practice shall be observed:
'(1) Advice by the Court. The court shall not accept a plea of guilty or nolo contendere without first personally addressing the defendant and informing him of and determining that he understands the following:'
In Courtney, the judge did not personally advise the defendant of the maximum sentence but in moving to add a second count the prosecutor stated the maximum penalty of five years.
In Bauer, the judge did not state the charge but the prosecutor read the information on the plea record.
These departures do not justify reversal. While it would be better for the judge to cover all the points himself, as long as he assumes the principal burden of imparting the required information, as did the judges in Courtney and Bauer, the purpose of requiring him personally to address the defendant and in so doing observe his demeanor and responses is achieved.
A guilty plea conviction will not be reversed if the judge engages in the required colloquy but fails to mention an item which the record shows was established through, for example, an opening statement of or interjection by the prosecutor or defense counsel in the hearing of the judge and defendant. It is proper for the prosecutor or the clerk to read the information in the judge's presence.
Nor do we regard 'grouping' of the rights in the judge's recital inconsistent with the 'personally address' requirement. All judges 'group' the recital to some extent, combining a number of rights and imparting several items of information without pause for response by the defendant. No one method of recital is required.
In Nicholson and Bauer the judge recited the rights without interruption concluding, in Nicholson, 'Now, if that is clear--is it?' and in Bauer, 'Do you wish to enter a plea to Count Two?' In Pleasants, the judge both began and ended his uninterrupted recitation of the rights specified in 785.7(1)(d) by asking the defendant if he understood that he was waiving or 'giving up' those rights.
The method of recital in each of these cases satisfied the 'personally address' requirement.
General Nature of the Charge
The rule continues (785.7(1)(a)):
'(a) the general nature of the charge to which the plea is offered; the court is not obliged to, but may explain the elements of the offense or any defenses possible;'
The rule requires the judge to inform the defendant and determine that he understands the 'general nature' of the charge to which the plea is offered. The judge May, but he is not obliged to, explain the elements of the offense.
In Torres, the judge said, 'They are adding a count of robbery unarmed.'
In Adkins, the judge informed the defendant he was charged with the crime of manslaughter.
In Courtney, the judge described the offense as 'attempted uttering and publishing an instrument which you knew to be false for the payment of money.'
In Bauer, the prosecutor read the information and the judge asked the defendant, 'Do you understand the charges in both Count One and Count Two?'
In Simpson, the judge informed the defendant he was charged with breaking and entering. In fact he was charged with attempted breaking and entering of an occupied dwelling house.
It is contended that to insure that a defendant understands the general nature of the charge the judge should name and explain at...
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