People v. Bartlett
| Decision Date | 23 April 1969 |
| Docket Number | No. 3,Docket No. 5090,3 |
| Citation | 17 Mich.App. 205,169 N.W.2d 337 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James A. BARTLETT, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
Richard L. Lang, Bauckham & Reed, Kalamazoo, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Donald A. Burge, Pros. Atty., Kalamazoo County, Kalamazoo, for plaintiff-appellee.
Before LEVIN, P.J., and HOLBROOK and DANHOF, JJ.
The defendant, James A. Bartlett, was convicted of the crime of unarmed robbery (M.C.L.A. § 750.530 (Stat.Ann.1954 Rev. § 28.798)) upon his plea of guilty. He appeals, claiming:
(1) that the trial judge did not comply with the requirements of GCR 1963, 785.3 in that, before accepting the defendant's guilty plea and sentencing, he did not, by direct questioning of the defendant, establish the crime and the defendant's participation in its commission as required by People v. Barrows (1959), 358 Mich. 267, 272, 99 N.W.2d 347 ();
(2) that the plea of guilty was induced by a promised sentence concession which was not fulfilled at the time of sentencing.
The record shows that the trial judge carefully examined the defendant concerning the facts before accepting the defendant's proffered plea of guilty. In response to the judge's inquiries the defendant stated that he ran up to a woman who was standing by a car and took her purse. The defendant was unable to remember whether she was carrying her purse or whether it was lying on the hood of her car, All he could remember was grabbing the purse and running off with it.
The defendant's statements established that the purse was taken from the presence of the victim. They did not establish another essential element of the crime of robbery--that the taking was accomplished either by force and violence or by assault or by putting her in fear. The defendant's argument is based on the absence of the latter ingredient. The defendant's statements to the judge did not show that the victim was aware that her purse was being taken until after it was taken. Thus, the defendant argues, the purse not having been wrested from the victim's grasp, the larceny was not accomplished by force and violence, and, since she was unaware of the defendant's presence, the larceny was accomplished without putting her in fear or an assault upon her person. See 46 Am.Jur., Robbery, §§ 15 and 16. See, generally, People v. Kruper (1954), 340 Mich. 114, 121, 64 N.W.2d 629.
The court rule does not, however, require that the offense to which the defendant pleads guilty must be established beyond peradventure before the trial judge may accept a proffered plea of guilty. It requires, in the words of Borrows Court (p. 272, 99 N.W.2d p. 350), 'reasonable ascertainment of the truth of the plea.'
Doubt as to the defendant's guilt, even if entertained by the accused person himself, does not necessarily preclude a trial judge from accepting a plea of guilty. If the trial judge, after the direct questioning of the defendant required by the court rule and Barrows, ascertains that there is a factual basis for the plea, that the plea is a truthful, honest plea of guilty to an offense of which the accused person might well be convicted upon trial, then the truth of the plea has been reasonably ascertained.
In this case there is no reason to believe that the defendant's plea of guilty was not an understanding plea (Cf. People v. Ferguson (1968), 13 Mich.App. 362, 164 N.W.2d 547) even though it does not affirmatively appear in the record that the defendant was aware of all the essential elements of the crime of robbery. 1
The original information charged the defendant with armed robbery. M.C.L.A. § 750.529 (Stat.Ann.1969 Cum.Supp. § 28.797). The information was later amended to add a second count for unarmed robbery. The victim testified at the preliminary examination that her assailant was armed with a gun and that her purse was taken from her under the threat of that assault. She could not identify the defendant. However, other witnesses who testified at the examination identified the defendant as her assailant.
The record does not show whether there was prosecutor-defense bargaining for the charge concession reducing the offense from armed to unarmed robbery. 2
While the defendant's probable guilt or innocence is not relevant on a motion for withdrawal of his guilty plea 3 and the 'frequently one-sided preliminary examination testimony' may not be considered as a factor in granting or denying a motion to withdraw a guilty plea (People v. Zaleski (1965), 375 Mich. 71, 81, 133 N.W.2d 175, 180), we may properly look at the testimony at the preliminary examination in considering a claim that there was not a factual basis justifying acceptance of a proffered plea of guilty.
'While it would be improper for a court to accept such a (guilty) plea unless satisfied there was significant evidence that the accused was involved or implicated in the offense, the court is not required to insist that the accused concede the inevitability or correctness of a verdict of guilty were the case tried.' McCoy v. United States (1966), 124 U.S.App.D.C. 177, 179, 363 F.2d 306, 308.
Similarly see Bruce v. United States (1967), 126 U.S.App.D.C. 336, 342, 379 F.2d 113, 119; Griffin v. United States (1968), 132 U.S.App.D.C. 108, 405 F.2d 1378. 4
A defendant who desires to plead guilty to a reduced charge but who entertains doubt as to his guilt should not be required to stultify himself to obtain the benefit of the opportunity to plead to the lesser charge. A rule of law which would require a person desiring to offer a plea of guilty to admit the inevitability of his conviction upon trial would require an accused person who thinks he has a defense but might well be convicted to either state to the court that which he does not conscientiously believe or possibly forego the very real benefit of 'copping out' to an offense carrying a shorter sentence than that of which he might well be convicted upon trial.
Our concern that there be a substantial basis for the proffered plea of guilty is satisfied when it appears on the record that there is a factual basis for the defendant's plea--that upon trial he might well be convicted. That the defendant Bartlett might well have been convicted upon trial, that there was a substantial basis for his plea of guilty to the reduced charge of unarmed robbery, clearly appears on this record and his plea of guilty need not be set aside because he did not concede in his own words a necessary element of the offense of robbery.
Addendum to I. (April 21, 1969):
The opinion in this case was written and approved by the panel of this Court to which the case was submitted before the United States Supreme Court decided McCarthy v. United States (1969), 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed. 418. In that case the Court construed Fed.Rules Crim.Proc. 11, which provides that a United States District Judge shall not accept a guilty plea
In McCarthy the United States Supreme Court made a number of statements which, if literally applied in this case, might be thought to require a setting aside of Bartlett's plea of guilty and of his conviction based thereon:
'because a guilty plea is an admission of all the elements of a formal criminal charge, it cannot be truly voluntary unless the defendant possesses and Understanding of the law in relation to the facts. * * *
5 6' (Emphasis supplied.)
The Court declared that if a district judge accepts a guilty plea 'without Fully adhering to the procedure provided for in rule 11' (Emphasis supplied), the defendant is 'entitled to plead anew' and, thus, upon appeal from a conviction based on a plea of guilty accepted without full adherence to the requirements of rule 11, the plea and conviction must be set aside.
We have decided that we should not change this opinion for the reasons which follow:
First. The McCarthy Court expressly stated that the decision in that case was 'based solely upon our (the United States Supreme Court's) construction of Rule 11 and is made pursuant to our supervisory power over the lower federal courts; we do not reach any of the constitutional arguments petitioner urges as additional grounds for reversal.' Thus, the McCarthy opinion does not control decision in this case.
Second. The standards adopted in McCarthy for the Federal courts have been rejected by the Michigan Supreme Court. In Michigan mere failure of a trial judge to comply with court-rule-imposed requirements regarding the taking of guilty pleas does not automatically require setting aside of the plea. People v. Stearns (1968), 380 Mich. 704, 713, 158 N.W.2d 409; People v. Dunn (1968), 380 Mich. 693, 697,...
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