People v. Bailey

• Decision Date: 13 June 1967
• Docket Number: No. 2462,2462
• Citation: 151 N.W.2d 184,7 Mich.App. 157
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David Mark BAILEY, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 184

151 N.W.2d 184

7 Mich.App. 157

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David Mark BAILEY, Defendant-Appellant.

No. 2462.

Court of Appeals of Michigan.

June 13, 1967.

Robert L. Coburn, Johnston & Wendt, Mt. Clemens, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Solicitor Gen., Lansing, George N. Parris, Prosecuting Atty., Macomb County, Mt. Clemens, for appellee.

Before QUINN, P.J., and McGREGOR and MILLER, ^* JJ.

MILLER, Judge.

This 19-year-old first felony offender, with an extensive juvenile record and no one in the position of parent, was charged with breaking and entering a store building with intent to commit a felony therein, to-wit, larceny, contrary to C.L.1948, § 750.110, as amended by P.A.1964, No. 133 (Stat.Ann.1965 Cum.Supp. § 28.305). He appeared in circuit court without an attorney after spending 21 days in the county jail for failure to post $2,000 bond. He was advised of his constitutional rights in the colloquy which follows:

'The Court. You understand you are charged with breaking and entering a building intending to steal something.

'Defendant. Yes.

'The Court. Do you understand that? You have a right to have a trial by a jury. You have a right to have your attorney represent you. In the event you are unable to procure an attorney financially, and you in your case being the age you are, your relatives, those responsible for you, and request is made the Court will consider appointing an attorney to represent you. This offense carries a penalty up to as much as ten years in the State Prison.

'Do you have any questions you want to ask?

'Defendant. Not really. I already pled guilty to the charge.

'The Court. Sorry.

'Defendant. I have already pled guilty to the charge.

'The Court. Not up here you haven't.

'Defendant. I see.

'The Court. You haven't up here. My question right now is that: Do you have any questions you want to ask me?

'Defendant. No, sir.

'The Court. How do you plead to this?

'Defendant. Guilty. * * *

'The Court. Has anybody promised you I am going to go easier on you, on sentence, than I would if you had a trial?

'Defendant. No, sir.'

On October 6, 1965 defendant was sentenced for a period of not less than two years nor more than ten. The calendar entries show receipt October 11, 1965 of a letter dated October 8 from the defendant stating, 'As I feel that this was too harsh a punishment for my crime I would like to appeal this case.' Counsel was promptly appointed.

The sole question presented by appellant is whether an indigent defendant should be advised at the arraignment not only of his right to an attorney for trial, but specifically of his right to advice concerning his election to plead guilty or not guilty.

The defendant contends that he understood from the colloquy quoted above that he had a right to an attorney only if he wanted a trial. The issue is whether there is 'substantial compliance' with GCR 1963, 785.3(1) and the constitutional requirements of the Fourteenth Amendment. People v. Winegar (1966), 4 Mich.App. 547, 145 N.W.2d 257. Otherwise stated, did the defendant knowingly and intelligently waive counsel and plead guilty? In re Palmer (1963), 371 Mich. 656, 660, 124 N.W.2d 773. In Carnley v. Cochran (1963), 368 U.S. 506, 516, 82 S.Ct. 884, 890, 8 L.Ed.2d 70, the court said:

'The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.'

While the court did advise defendant of the right to counsel, this was qualified by the expression 'will consider.' People v. Cairns (1966), 4 Mich.App. 633, 640, 145 N.W.2d 345. In this case the defendant was indigent and this fact was indicated to the court at that point by defendant's failure to post bond for 21 days. The court did ask defendant twice if he had any questions, but to a 19-year-old this may not have been understood as his opportunity to request counsel. People v. Atkins (1966), 2 Mich.App. 199, 139 N.W.2d 325. People v. Hilko (1966), 5 Mich.App. 166, 168, 146 N.W.2d 102. His experiences in juvenile court where...