People ex rel. Leonard v. Papp

• Decision Date: 25 February 1972
• Docket Number: No. 10,10
• Citation: 386 Mich. 672,194 N.W.2d 693
• Parties: PEOPLE of the State of Michigan ex rel. Robert F. LEONARD, Prosecuting Attorney In and For the County of Genesee, Plaintiff-Appellant, v. The Honorable Elza H. PAPP, Genesee County Circuit Judge, 7th Judicial Circuit, Defendant-Appellee.
• Court: Michigan Supreme Court

Page 693

194 N.W.2d 693

386 Mich. 672

PEOPLE of the State of Michigan ex rel. Robert F. LEONARD Prosecuting Attorney In and For the County of Genesee, Plaintiff-Appellant, v. The Honorable Elza H. PAPP, Genesee County Circuit Judge 7th Judicial Circuit, Defendant-Appellee.

No. 10.

Supreme Court of Michigan.

Feb. 25, 1972.

Donald A. Kuebler, Chief Asst. Pros. Atty., Flint, Robert F. Leonard, Pros. Atty., Genesee County, for plaintiff-appellant.

Frederick E. Salim, Flint, for defendant-appellee.

Before the Entire Bench.

WILLIAMS, Justice.

The matter-of-fact and unpretentious trial and appellate history of this case attests to the acceptance and confidence of the American people in the ability and integrity of the judiciary to exercise the authority of judicial supremacy in determining and delineating the basic constitutional doctrine of separation of legislative, executive and judicial powers. It is an awesome power and responsibility and must be exercised both courageously and with understanding and restraint.

There are two issues in this case:

I. Does the Court of Appeals have jurisdiction to entertain a complaint for superintending control which charges that a trial judge acted without authority in accepting, over the objection of the prosecutor, a plea of guilty to an offense not charged by the people or included within the offense charged in the information?

II. Does a trial judge have the authority to accept an offer and plea of guilty over the objection of the prosecutor to an offense not charged or included in the information?

The defendant, Dana McBride, was bound over to the Genesee Circuit Court after a preliminary examination to stand trial on an information charging possession of a stolen motor vehicle in violation of M.C.L.A. § 257.254; M.S.A. § 9.1954. ¹ On the day the case was to go to jury trial the trial judge, apparently on the basis of a previous discussion with defendant and his counsel, granted defendant's motion that he be allowed to plead guilty to unlawfully driving away the automobile of another in violation of M.C.L.A. § 750.413; M.S.A. § 28.645. ² Before final acceptance of the plea the trial judge asked the prosecutor, 'I take it, Mr. Prosecutor, you are not going to make objections to this.' The prosecutor indicated that the facts supported the charge as originally bound over and that he intended to proceed to trial on the charge as bound over because it was a more serious offense than the typical 'joy riding' case. In overruling the prosecutor's objection the judge said 'Fine, but, Mr. Prosecutor, how many times have you already come up this term where the evidence would show--so you can't always play God as to which one you are going to permit to plead guilty to a lesser offense or not.'

The trial judge proceeded with the plea taking procedure wherein the defendant admitted that he had stolen a Volkswagen similar to his own, driven it away, exchanged the license plates with his own and taken the car to a farm. The judge concluded: 'Actually, you are really guilty of the higher offense, but the court will accept your plea to the lesser offense. . . .' Subsequently, McBride was sentenced to three and a half to five years at Jackson with execution suspended provided McBride entered the Army. The Army did not accept McBride and the original sentence was reinstated. Defendant was advised of his rights to appeal, 'indigent' counsel and transcript. Claim of appeal was filed in the Court of Appeals and defendant has been admitted to bail pending decision in that court.

In a separate proceeding, the prosecution sought a writ of superintending control from the Court of Appeals challenging the trial court's right over the prosecutor's objection to accept a plea to an offense not charged nor a lesser included offense. This request was 'dismissed for lack of jurisdiction,' on the ground that the proceeding was not one of the 'appeals' authorized by statute, citing M.C.L.A. § 770.12; M.S.A. § 28.1109 ³ and Wayne County Prosecutor v. Recorder's Court Judge. ⁴ The People, upon leave granted, ask this Court to hold that the Court of Appeals has jurisdiction to entertain complaints for superintending control under facts such as these and further that we retain jurisdiction of the cause and enter an order of superintending control directing the defendant judge to vacate defendant McBride's guilty plea and sentence and reinstate criminal proceedings based on the information charging violation of M.C.L.A. § 257.254.

I.--JURISDICTION

In response to the Court of Appeals holding that this proceeding was not an authorized 'appeal' ⁵ under the statute (M.C.L.A. § 770.12) the People answer that they do not claim the action of the trial judge is reviewable by an 'appeal' under M.C.L.A. § 770.12. The People in effect contend that a writ of superintending control under GCR 1963, 711.3 ⁶ is not an appeal but rather is an original civil action, here in the nature of mandamus, and as such is a proper method for correcting abuses of jurisdiction by a trial judge.

In People v. Brundage, 381 Mich. 399, 403, 162 N.W.2d 659, 660 (1968), Justice O'Hara writing in a portion of his dissent concurred in by the majority, addressed the relationship between the limited rights of 'appeal' under M.C.L.A. § 770.12 and the writ of superintending control. Speaking of the statute he said:

'We feel obligated to point out that as an expression of legislative policy we accord the statute great weight. However, to the extent that it purports to limit our appellate jurisdiction, it is constitutionally infirm. Our appellate jurisdiction is constitutional. It can neither be enlarged nor restricted by legislative action. The constitution provides:

"The Supreme Court shall have * * * power to issue * * * prerogative and remedial writs; And appellate jurisdiction as provided by rules of the supreme court.' (Emphasis supplied.)' (Footnote omitted.)

Pursuant to the constitution this Court adopted GCR 1963, 711.3 which supercedes the writs of certiorari, mandamus and prohibition, providing one simplified procedure for reviewing or supervising the actions of lower courts and tribunals.

The use of the office of superintending control by the People in a criminal case to review excesses of jurisdiction was considered by this Court in People v. Flint Municipal Judge, 383 Mich. 429, 175 N.W.2d 750 (1970). In that case the prosecutor filed a complaint for superintending control against a municipal judge alleging an abuse of discretion in failing to bind over a defendant for trial. The court recognized that the writ of superintending control was a proper method for reviewing a claimed abuse of discretion by the trial judge but affirmed the Court of Appeals' denial of the complaint on the ground that GCR 1963, 711.4 required the writ to be addressed to the first tribunal having competence to hear and act upon it (in that case the circuit court). On the propriety of the use of the writ by the People in these circumstances, however, Chief Justice Brennan said for a unanimous court:

'No argument is made here as to the proper office of superintending control as a means of reviewing the discretion of an examining magistrate. The order of superintending control embraces the functions of the former writ of mandamus. GCR (1963,) 711.3(2).

'Superintending control, like mandamus, lies to require the magistrate to perform a function where the magistrate has a clear legal duty to act.

'The process is not, properly speaking, an appeal. It is rather a whole new lawsuit, with different parties and different purposes. People v. Yeotis is not a criminal case, but is rather an original civil complaint designed to require the defendant municipal judge to perform a clear legal duty.' 383 Mich. 429, 431--432, 175 N.W.2d 750, 751.

The Supreme Court has by GCR 1963, 711 provided that the Court of Appeals has the power to issue superintending control orders which are in the nature of certiorari, mandamus and prohibition.

This superintending control has nothing to do with the general supervisory superintending control over all courts given to the Supreme Court by art. VI, § 4 of the 1963 Constitution or the supervisory and general control over inferior courts and tribunals within their respective jurisdictions in accordance with rules of the Supreme Court, given the circuit courts by art. VI, § 13 of the 1963 Constitution.

No general control of inferior courts exists in the Court of Appeals.

Whether this action be viewed in the nature of certiorari, mandamus, or prohibition the writ of superintending control would lie. The writ of certiorari is for review of errors of law and our inquiry is limited to determining 'if the inferior tribunal, upon the record made, had jurisdiction, whether or not it exceeded that jurisdiction and proceeded according to law.' In re Fredericks, 285 Mich. 262, 267, 280 N.W. 464, 466 (1938). In Flint Municipal Judge, Supra, we noted that mandamus would lie to require the magistrate to perform a clear legal duty. Here it is contended that the judge acted without jurisdiction and therefore has a clear legal duty to vacate the guilty plea and reinstate the criminal proceedings as filed in the information. The writ of prohibition is a common law remedy designed to prevent excesses of jurisdiction. It is a proper remedy where the court exceeds the bounds of its jurisdiction or acts in a matter not within its jurisdiction. Hudson v. Judge of Superior Court, 42 Mich. 239, 248, 3 N.W. 850, 913 (1879). In this case the facts alleged also support a complaint for a writ of superintending control in the nature of prohibition.

In People v. Flint Municipal Judge, Supra, the magistrate indisputably had jurisdiction to exercise discretion with respect to the sufficiency of the evidence to bind over the defendant. Without passing on the merits, however, this Court said that the writ of superintending control is a proper method...