People v. Armstrong

• Citation: 213 N.W.2d 190,390 Mich. 693
• Decision Date: 18 December 1973
• Docket Number: O,No. 13,13
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James Willie ARMSTRONG, Defendant-Appellant. ct. Term. 390 Mich. 693, 213 N.W.2d 190
• Court: Supreme Court of Michigan

Page 190

213 N.W.2d 190

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James Willie ARMSTRONG, Defendant-Appellant.

No. 13, Oct. Term.

390 Mich. 693, 213 N.W.2d 190

Supreme Court of Michigan.

Dec. 18, 1973.

Donald A. Kuebler, Chief, App. Div., Joel B. Saxe, Asst. Pros. Atty., Robert F. Leonard, Pros. Atty., Genesee County, Flint, for plaintiff-appellee.

State App. Defender Office by Joseph B. Szeremet, Asst. Defender, Detroit, Research Asst.: Carl L. Gromek, Detroit, for defendant-appellant.

Before the Entire Bench.

LEVIN, Justice.

On the third day of trial James Willie Armstrong pled guilty to the charge that he murdered Ann Kelush in the perpetration of an armed robbery.

A statute provides that if a person shall be convicted of murder 'by confession, the court shall proceed by examination of witnesses to determine the degree of the crime ('whether it be murder of the first or second degree'), and shall render judgment accordingly.' M.C.L.A. § 750.318; M.S.A. § 28.550.

On the next day, the judge announced that the evidence established that Armstrong was guilty of first-degree murder and, accordingly, that was his determination of the degree of guilt.

Armstrong now asserts that his plea and resultant conviction should be set aside because the judge failed:

(a) to inform him of the nature of an 'open charge' of murder;

(b) to inform him that if he was convicted of first-degree murder he would be ineligible for parole;

(c) to establish a factual basis for the plea by bench questioning:

(d) to conduct a hearing to determine the degree of murder.

I

Armstrong asserts that an 'open charge' of murder is inherently uncertain. Unless carefully explained by the judge, a defendant will naturally be 'misled' into believing that he will be convicted of an offense lesser than first-degree murder, when in fact that hope is illusory. Specifically, Armstrong asserts that he should have been advised that if the evidence were sufficient to establish first-degree murder, the judge must find that the murder was of the first degree because he does not enjoy the discretion to convict a person, who in fact is guilty of the greater offense, of only the lesser offense.

Armstrong further asserts that, although the judge did inform him that if it was determined he was guilty of first-degree murder a sentence of life imprisonment must be imposed, the judge erred in failing to inform him that he would be ineligible for parole if the degree of guilt was determined to be first degree. Armstrong relies on the construction of F.R.C.rim.P., 11 adopted by a majority of the United States Courts of Appeals that ineligibility for parole constitutes a 'consequence' of a guilty plea and, therefore, a failure to furnish such information in a case where the defendant would be ineligible for parole vitiates the plea. ¹

Armstrong's guilty plea was accepted in 1963. At the time, neither the court rule nor case law required a judge to explain to a defendant offering to plead guilty to an open charge of murder the nature of the judge's responsibility at a degree hearing. Nor, this Court subsequently ruled, was there even a requirement that the defendant be advised of the maximum and of any minimum sentence that might or must be imposed (People v. Dunn, 380 Mich. 693 158 N.W.2d 404 (1968)), let alone that, if convicted of first-degree murder, he would not be eligible for parole.

In that setting, we could not properly say that the trial judge in this case, who did advise the defendant that if he were found guilty of first-degree murder a life sentence must be imposed, erred reversibly in failing to advise the defendant more fully. The extensive guilty plea jurisprudence of this State shows that the word 'consequence', in GCR 1963, 785.3(2), did not acquire, before the recent revision of that rule, the meaning given that word in other jurisdictions. ²

After much debate among bench and bar, this Court recently revised the guilty plea procedure to require more extensive advice than under former practice to guilty pleading defendants. See GCR 1963, 785.3--785.11. The revised rule does not require advice concerning the nature of the judge's responsibility in a degree hearing or that a person convicted of first-degree murder is not eligible for parole. It would be incongruous to hold that a defendant pleading guilty in 1963 was entitled to advice that need not be given a defendant pleading guilty today.

II

In accepting Armstrong's plea, the judge did not, in accordance with People v. Barrows, 358 Mich. 267, 272, 99 N.W.2d 347 (1959), establish by 'direct questioning' of the defendant 'the crime and the participation therein of the person pleading guilty.'

Armstrong's plea was offered after three days of trial at which witnesses testified that Armstrong had participated in the armed robbery and that he had held a revolver to Mrs. Kelush's head and killed her.

Armstrong relies on a footnote in People v. Taylor, 387 Mich. 209, 225, n. 10, 195 N.W.2d 856 (1972), which states that it is not sufficient that the requisite facts appear on the record of a preliminary examination. There is, however, considerable difference between the record of a preliminary examination and a trial record. In many cases a preliminary examination record will not be typed before the plea is taken and even if it is typed the judge may not read it.

We are of the opinion that where the judge has heard testimony at trial implicating the defendant he is in a position to make a 'reasonable ascertainment of the truth of the plea.' People v. Barrows, Supra, 358 Mich. p. 272, 99 N.W.2d p. 350.

While the amended court rule...