People v. Butler

• Decision Date: 09 March 1972
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gary Darwin BUTLER, Defendant-Appellant.
• Court: Michigan Supreme Court

Page 268

195 N.W.2d 268

387 Mich. 1

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Gary Darwin BUTLER, Defendant-Appellant.

Supreme Court of Michigan.

March 9, 1972.

Thomas G. Plunkett, Pros. Atty., Oakland County, by Dennis Donohue, Chief Appellate Counsel, Pontiac, for plaintiff-appellee

Gordon Snavely, Pontiac, for defendant and appellant; Douglas Chartrand, Pontiac, of counsel.

Before the Entire Bench.

WILLIAMS, Justice.

Defendant raises two issues on appeal in this case. ¹ First, he contends that Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), applies retroactively and requires that the record affirmatively disclose that defendant was expressly informed of and specifically waived his constitutional rights to trial by jury, to confront his accusers, and against self-incrimination prior to the acceptance of his plea of guilty and that the record shows the trial court failed to advise the defendant of his privilege against compulsory self-incrimination. ² Second, he claims that the requirement of People v. Barrows, 358 Mich. 267, 99 N.W.2d 347 (1959), that the court 'examine the accused' for the purpose of establishing the crime and defendant's participation therein, can only be satisfied by direct questioning of the defendant by the court.

On March 20, 1969, Gary Darwin Butler stood mute at his arraignment on the charge of possession of a stolen motor vehicle. Subsequently, the prosecution added a second count of unlawfully driving away an automobile. With the representation of counsel, defendant pled guilty to the added count on May 7, 1969. Boykin was decided on June 2, 1969.

At the plea proceeding defendant's attorney promised to file a written statement, previously signed by the defendant, in which defendant asserted that his plea was understandingly and voluntarily made. In response

to the court's concern that a record be made demonstrating the voluntariness of defendant's plea as required by the court rule on the taking of guilty pleas, defendant's lawyer proceeded to question him regarding the factual details of the crime and his participation therein. The court personally inquired of defendant whether his plea was motivated by any threats, promises or other inducements. The court accepted defendant's plea. On appeal ³ the Court of Appeals affirmed the plea conviction in a Per curiam opinion, 23 Mich.App. 643, 179 N.W.2d 215. Deciding [387 Mich. 6] that Boykin applied prospectively only, the Court of Appeals opined that the Barrows rule that the court 'examine the accused' to ascertain a factual basis for the plea and presumably the requirement that the plea be freely, understandingly and voluntarily made could be complied with in a form and manner in the discretion of the trial court. Thus, the examination of defendant by his lawyer in open court at the time the plea was offered satisfied the requirement of ascertaining a factual basis for the plea. As for the failure to advise the defendant of his privilege against compulsory self-incrimination, the Court of Appeals found 'nothing exists which would show that the plea was not knowingly and voluntarily made,' etc. We granted leave to appeal primarily to decide the retroactivity of Boykin.

I.

The United States Supreme Court has not yet passed on the question of the retroactivity of Boykin. Brady v. United States, 397 U.S. 742, 747, 90 S.Ct. 1463, 1468, 25 L.Ed.2d 747 (1970). However, several state supreme courts have considered the question of Boykin's retroactivity and have uniformly given Boykin prospective application only. In Re Tahl, 1 Cal.3d 122, 81 Cal.Rptr. 577, 460 P.2d 449 (1969); Ernst v. State, 43 Wis.2d 661, 170 N.W.2d 713 (1969); State v. Urbano, 105 Ariz. 13, 457 P.2d 343 (1969); Ward v. People, 172 Colo. 244, 472 P.2d 673 (1970); People v. Williams, 44 Ill.2d 334, 255 N.E.2d 385 (1970); State v. Jackson, 173 N.W.2d 567 (Iowa, 1970); Crego v. State, 447 S.W.2d 550 (Mo., 1969); Commonwealth v. Godfrey, 434 Pa. 532, 254 A.2d 923 (1969). We agree with our sister states. See also Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965) and Halliday v. United States, 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16 (1969).

II.

Having determined that Boykin has only prospective effect, we turn to the question whether the plea in this case is valid under Michigan law.

The written statement signed by the defendant specifically contains a waiver of the right to jury trial. It also states that defendant understands that he is presumed innocent until proven guilty and that his guilt must be proven beyond a reasonable doubt. Another written statement asserts that defendant had an adequate opportunity to 'converse and counsel' with his lawyer. In fact, the trial court and counsel have quite meticulously compiled a most exemplary record except for the failure to advise the defendant of his right against self-incrimination. This right is a right guaranteed both by the Federal and Michigan constitutions.

The underlying principle in both Federal and Michigan law relating to the taking of guilty pleas is that the defendant in pleading guilty waives a number of important constitutional rights and can be permitted to do so only if he does so understandingly and voluntarily.

This principle is articulated in Michigan through M.C.L.A. § 768.35, M.S.A. § 28.1058, and GCR 1963, 785.3, and People v. Barrows, Supra. For full discussion see People v. Jaworski, Mich., 194 N.W.2d 868 (1972) released this day.

The four cases of People v. Hobdy, 380 Mich. 686, 158 N.W.2d 392 (1968); People v. Dunn, 380 Mich. 693, 158 N.W.2d 404 (1968); People v. Stearns, 380 Mich. 704, 158 N.W.2d 409 (1968); and People v. Winegar, 380 Mich. 719, 158 N.W.2d 395 (1968), indicate that the mandates of the statute, court rule and Barrows are satisfied by substantial compliance. People v. Williams, 386 Mich. 277, 192 N.W.2d 466 (1971). The issue in this case therefore becomes whether there is substantial compliance where the record shows that in taking the guilty plea, the defendant was properly advised of his rights except his right against self-incrimination.

Logically there are two ways of looking at this. First, 'you must advise the defendant of Substantially all of his rights,' or second, 'you must Substantially advise defendant of all of his rights.'

The cases hold that a defendant must be substantially advised of each of his rights. People v. Winegar, Supra, People v. Dunn, Supra, and People v. Jaworski, Mich., 194 N.W.2d 868 (1972). As noted previously, a thorough review of the record of the lower court proceedings in the instant case fails to disclose that the defendant was ever advised concerning his constitutional right against self-incrimination. Therefore we must vacate the defendant's conviction and remand to the circuit court for further proceedings consonant with this opinion.

III.

Regarding defendant's claim that People v. Barrows, Supra, necessitates direct personal inquiry of the defendant for purposes of ascertaining the factual basis of the plea, defendant's counsel interrogating defendant as to how he drove the car away more than satisfied Barrows, People v. Williams, Supra, People v. Stearns, Supra.

We emphasize that what we say in Part II has no application to pleas of guilty taken after April 1, 1972. This Court has invited members of the trial and appellate bench along with members of the bar to review GCR 1963, 785.3 to determine whether it best expresses the practical and legal principles for accepting a plea of guilty, and, if not to recommend a better one. It is the Court's intention that the new rule shall be effective for all guilty pleas taken on and after April 1, 1972. As of that time the new rule shall be followed specifically and strictly, and where a judge shall fail to follow the prescribed procedures, it shall be treated as reversible error.

Reversed, conviction vacated, and remanded to the circuit court for further proceedings consonant with this opinion.

T. M. KAVANAGH, C.J., and T. G. KAVANAGH, SWAINSON and WILLIAMS, JJ., concur.

ADAMS, J., concurs in the result.

APPENDIX I

TRANSCRIPT OF PLEA PROCEEDINGS

'MR. DAVEY: Your Honor, this matter is scheduled for trial on Tuesday, May 13, this matter entitled People of the State of Michigan versus Gary Darwin Butler, also known as Thomas Robinson.

(Defendant standing.)

MR. DAVEY: This Respondent is charged with Possession of a stolen motor vehicle, and this matter has been scheduled for trial on Tuesday of next week.

At this time the People move to add a second Count to the Information and the second count would indicate that the Respondent is charged with the crime of Unlawful Driving Away an Automobile.

MR. SNAVELY: I have no objection to that added count, Your Honor.

THE COURT: It is so ordered.

MR. SNAVELY: For the record, I am Gordon Snavely and I have no objection that the count has been added. At this time I would like on behalf of Mr. Butler and after conversation with Mr. Butler and the prosecuting attorney and I believe the Court on one previous occasion, I would like to enter a plea of Guilty to the added second count.

Is this your wish, Mr. Butler?

DEFENDANT BUTLER: Yes, it is.

MR. SNAVELY: Any questions, Your Honor?

THE COURT: I understand that you have a written plea that will be filed?

MR. SNAVELY: I will file one, Your Honor.

MR. DAVEY: I might say, Your Honor, that Unlawfully Driving Away an automobile carries a maximum penalty of five years in State's Prison.

THE COURT: Do you want to interrogate your client about this matter.

MR. SNAVELY: Do you have any questions that you would like to ask about this charge?

THE COURT: I am only interested that he put on the record the voluntariness of the information which is in your written plea, and which is required under the Court Rules.

MR. SNAVELY: Mr. Butler, is it true that it is, that I as your attorney have received a copy of the Information in ...