People v. Butler, Docket No. 10985

• Citation: 43 Mich.App. 270,204 N.W.2d 325
• Decision Date: 24 October 1972
• Docket Number: Docket No. 10985,No. 2,2
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph Earl BUTLER, Defendant-Appellant
• Court: Court of Appeal of Michigan (US)

Page 325

204 N.W.2d 325

43 Mich.App. 270

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph Earl BUTLER, Defendant-Appellant.

Docket No. 10985.

Court of Appeals of Michigan, Division No. 2.

Oct. 24, 1972.

Released for Publication Feb. 22, 1973.

Herman C. Campbell, Ward & Campbell, Roseville, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., George N. Parris, Pros. Atty., Thaddeus F. Hamera, Chief Appellate Lawyer, Stephen F. Osinski, Asst. Pros. Atty., for plaintiff-appellee.

Before LESINSKI, C.J., and QUINN and BRONSON, JJ.

LESINSKI, Chief Judge.

Defendant, Joseph Earl Butler, pleaded guilty to a charge of assault with intent to do great bodily harm less than the crime of murder, M.C.L.A. § 750.84; M.S.A. § 28.279. This Court previously affirmed defendant's conviction on October 26, 1971, in an opinion reported at 36 Mich.App. 615, 193 N.W.2d 904. Thereafter, the Supreme Court, 194 N.W.2d 827, granted leave to appeal and remanded the instant case for our further consideration in light of its decision in People v. Harrison, 386 Mich. 269, 191 N.W.2d 371 (1971).

Defendant was initially charged with armed robbery, M.C.L.A. § 750.529; M.S.A. § 28.797, and assault with intent to commit murder, M.C.L.A. § 750.83; M.S.A. § 28.278. It was alleged that defendant had robbed a grocery store on the night of May 2, 1970, and, in the course of making his escape, had been fired upon by the store owner. Testimony at the plea-taking revealed that defendant had returned the store owner's fire, and then resumed his flight from the scene.

On June 3, 1970, a preliminary examination was held and defendant was bound over to circuit court on both counts. He was arraigned on June 26, 1970. Subsequently, defendant's attorney filed a petition for diagnostic commitment to determine defendant's competency to stand trial pursuant to GCR 1963, 786. The trial court ordered that a 'preliminary psychiatric evaluation' be scheduled for defendant and the case was adjourned on July 14, 1970, pending the outcome of the examination.

On September 16, 1970, trial was set on the armed robbery count for October 21, 1970, and October 23, 1970 was designated as the date for trial on the assault charge. The trial court thereafter issued an order denying defendant's request for diagnostic commitment on September 24, 1970.

Defendant went to trial on the armed robbery count as scheduled. A jury was selected and sworn and testimony was taken. On the second day of the proceedings, however, the trial judge, Sua sponte, declared a mistrial because of what he termed misconduct on the part of both the defense and prosecution. He did not specify to what misconduct he referred. Trial on the armed robbery charge was reset for 'the first or second week' of November, 1970. The record contains no indication as to why a continuance was granted on the assault charge from the October 23 trial date.

Then, on November 10, 1970, defendant pleaded guilty to the added count of assault with intent to commit great bodily harm less than murder. The prosecution moved to add the second count with the stipulation that the armed robbery charge would be Nol-prossed at the end of the 60-day appeal period. ¹ After the trial court sentenced defendant to 9 to 10 years imprisonment at a hearing on December 4, 1970, defendant personally informed the trial court that he intended to appeal the conviction.

The people then took steps to bring defendant to trial on the armed robbery charge. Trial was rescheduled for February 3, 1971. On that date, however, the case was adjourned over term 'to await outcome of the appeal' of the assault conviction. Thereafter, on April 7, 1971, notice of trial was issued for May 11, 1971. Five days prior to the May date, Judge George R. Deneweth, who had presided over the October mistrial, the plea-taking proceeding, and sentencing, disqualified himself.

Then, defendant moved to quash the information in the armed robbery case on double jeopardy grounds. Judge Hunter Stair granted defendant's motion to June 8, 1971.

In Harrison, supra, defendant was arrested on a breaking and entering charge. While free on bond awaiting trial of the case, defendant was arrested on a second charge of breaking and entering, unrelated to the first. The trial on the initial charge against defendant was postponed to await trial of the other pending case, and then adjourned again with no reason given. During this period, defendant was convicted on the second charge. Trial on the first charge was then postponed again, until the appeal time on the conviction expired. Defendant appealed, however, and, once again, trial on the first breaking and entering charge was adjourned with no reason given. Trial was finally held, and defendant was convicted of the initial charge.

The Supreme Court ruled that defendant's conviction on the first charge was invalid, because his right to speedy trial had been violated by the frequent adjournments of his trial date. Concerning the two adjournments for which no reason was given, the court cautioned that it would 'view with great concern adjournments which are not supported by good cause shown on the record'. 386 Mich. 269, 274, 191 N.W.2d 371, 374.

The trial court explicitly disapproved of the adjournment which was entered until the appeal time expired from the conviction on the second charge. Defendant had been notified that the remaining charge against him would be Nol-prossed if he did not perfect an appeal from the other conviction. In discussing this practice, the Court stated that:

'An adjournment of one case with notice it would be dismissed if a defendant did not appeal a second case is not good cause for continuance. Furthermore it is constitutionally obnoxious. Such action serves to chill the exercise of a defendant's constitutional right to appeal a criminal conviction and will not be tolerated.' (Emphasis supplied.) Harrison Supra, 386 Mich. 269, 275, 191 N.W.2d 371, 374.

In the instant case, we would be faced with a speedy trial issue, such as in Harrison, on the armed robbery charge if a conviction had resulted therefrom. The adjournment on November 10, 1970, of defendant Butler's trial on the armed robbery charge was ordered to await the expiration of the appeal period. When defendant did, in fact, appeal, his February 3, 1971, trial date was postponed to await the outcome of the challenge to his assault conviction. However, defendant was not tried thereafter for armed robbery. To the contrary, that charge was dismissed on double jeopardy grounds. To this extent this case is distinguished from Harrison, supra.

The case at hand, however, further raises the issue of the propriety of the prosecutor's action in conditioning the plea agreement on defendant's waiver of his right to appeal. The prosecution had agreed to dismiss the two original charges outstanding against defendant in exchange for defendant's abandonment of his right to appeal his assault conviction on the added count.

Extensive examination of the case law has revealed little discussion of this specific practice, but the issue as to its propriety has been addressed by the New York courts.

In People v. Ramos, 30 A.D.2d 848, 292 N.Y.S.2d 938 (1968), defendant pleaded guilty to second-degree murder, after he had been indicted for first-degree murder, first-degree robbery, first-degree grand larceny, and second-degree assault. It was stipulated that the robbery indictment would be dismissed provided that no appeal was taken from the murder conviction. Additionally, the trial court informed defendant at the plea-taking that the plea itself would not stand if defendant appealed. Commenting on the plea arrangement, the Court stated that:

'Under the circumstances, it could not have been reasonably contemplated that defendant would exercise his 'option' to appeal. In practical effect, the court virtually insulated the conviction and the sentence imposed thereon against appellate review. The court's actions were tantamount to a denial of defendant's right to appeal.

'The statutory right to appeal in criminal matters is 'an integral part of our judicial system' and 'it has been the consistent policy of our courts to preserve and promote that right as an effective, if imperfect, safeguard against impropriety or error." Ramos, supra, 30 A.D.2d 848, 849, 292 N.Y.S.2d 938, 940.

The issue was confronted again in People v. Irizarry, 32 A.D.2d 967, 303 N.Y.S.2d 332 (1969), aff'd 27 N.Y.2d 856, 317 N.Y.S.2d 15, 265 N.E.2d 540 (1970), where defendant had pleaded guilty to attempted burglary, on the condition that a separate indictment charging him with sale of a narcotic and possession of a narcotic with intent to sell would be dismissed if he did not appeal the burglary conviction. The majority in Irizarry distinguished the situation from Ramos, supra, because the judge in the latter case had conditioned the very acceptance of the plea on defendant's waiver of his right to appeal the conviction. Affirming defendant's conviction in Irizarry, the majority noted that the consequence of defendant's appeal was not that the plea itself would be vacated, but that the prosecutor would refrain from obtaining dismissal of an outstanding indictment.

However, Justice James D. Hopkins, dissenting, believed that the Ramos holding applied to the situation in Irizarry. He pointed out that:

'Defendant was placed into the position of surrendering a review of a possibly onerous sentence and of any prejudicial defect in the proceedings leading to the sentence or standing trial on the other pending indictment.

'The point is that defendant should not have been compelled to give up the right to appellate review as a condition imposed by the prosecution and approved by the court before his plea would be accepted.' Irizarry, supra, 32 A.D.2d 967, 968, 303 N.Y.S.2d 332, 333--334 (dissent by Hopkins, J.).

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