People v. Cairns, 477

• Decision Date: 25 October 1966
• Docket Number: No. 3,No. 477,477,3
• Citation: 145 N.W.2d 345,4 Mich.App. 633
• Parties: The PEOPLE of the State of Michigan, Plaintiff and Appellee, v. John D. CAIRNS, Defendant and Appellant. Cal
• Court: Court of Appeal of Michigan — District of US

Page 345

145 N.W.2d 345

4 Mich.App. 633

The PEOPLE of the State of Michigan, Plaintiff and Appellee, v. John D. CAIRNS, Defendant and Appellant.

Cal. No. 477.

Court of Appeals of Michigan, Division No. 3.

Oct. 25, 1966.

Michael J. Khoury, Marquette, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Edward A. Quinnell, Pros. Atty., Marquette County, Marquette, for appellee.

Before HOLBROOK, P.J., and FITZGERALD and GILLIS, JJ.

HOLBROOK, Presiding Judge.

In November of 1958, defendant was charged in an information filed in the circuit court for Marquette county, with the crime of escaping from the State House of Correction and Branch Prison at Marquette, in violation of C.L.1947, § 750.193, as amended by P.A.1956, No. 6 (Stat.Ann.1957 Cum.Supp. § 28.390); which was charged therein as a second felony offense, contrary to C.L.1948, § 769.10, as amended in violation of C.L.1948, § 750.193 28.1082), in that defendant had been convicted of breaking and entering in the nighttime, August 10, 1953, in the recorder's court for the city of Detroit, C.L.1948, § 750.110 (Stat.Ann.1962 Rev. § 28.305).

On November 3, 1958, defendant was arraigned before the court without counsel and entered a plea of guilty to the information. On November 6, 1958, defendant again appeared before the court and was sentenced to 2 1/2 to 4 1/2 years in prison, such term to commence at the end of the sentence defendant was then serving. Defendant filed a motion In propria persona for review of the judgment which was denied by an order of the court filed June 23, 1964. Defendant thereupon petitioned the circuit court for appointment of counsel to prosecute an appeal claiming he was indigent, under GCR 1963, 785.4. Present counsel was thereupon appointed for defendant. An application for leave to file a delayed appeal, presented to the Supreme Court, was granted by order dated January 21, 1965, for preparation and presentation to the Court of Appeals, under the court rule.

Defendant pursuant thereto filed claim of appeal and raises the following three questions for this Court to consider in reviewing the matter: (1) Was the sentence meted out in accordance with the law and the procedure outlined by the applicable statute? (2) Have the rights of the defendant under the State and Federal Constitutions been violated? (3) Is the defendant entitled to have vacated the previous sentence and allowed a credit on the new sentence for the time served?

We join the first and second questions for consideration because they are best dealt with in that manner.

Defendant asserts that the court failed to observe the rules of due process under the constitution, statutes and court rules pertaining to this arraignment and sentencing. The first claim is that the People improperly joined two offenses in a single information because he could not legally be informed against as committing a second felony unless and until he had been convicted of the main offense. Defendant further specifically claims he was not properly informed of his legal right to have counsel appointed to represent him and paid for by the county in the event he was financially unable to hire counsel. Further, that prior to the acceptance of his plea of guilty by the court, he had not been properly informed of the maximum penalty that could be exacted under the law, i.e., that he was told that the maximum penalty would be 4 1/2 years but was not informed that the sentence would commence to run after he had completed serving his then present sentence which had nearly a balance of 10 years yet to run. He states that he found this out for the first time just a few seconds before he was sentenced and only after he questioned the court concerning the same. Defendant also claims that he was not asked to identify himself as the same and identical person as charged in the information with respect to the commission of the first offense in accordance with C.L.S.1961, § 769.13 (Stat.Ann.1954 Rev. § 28.1085).

The proceedings held on the defendant's arraignment in the circuit court appears in the record as follows:

'Mr. Hill: This is the case of the People versus John D. Cairns on a charge of escaping prison, file number 17437. What is your age?

'The Defendant: 28

'Mr. Hill: And where were you born?

'The Defendant: Sault Ste. Marie, Michigan.

'Mr. Hill (Reading Information): 'State of Michigan * * *'

'The Court: Have you had an opportunity to talk to any lawyer about this matter?

'The Defendant: No, sir.

'The Court: And do you wish to have an attorney to advise you?

'The Defendant: No sir.

'The Court: I inform you that if you are not financially able to hire a lawyer, the court Can appoint one at the county's expense to advise you. Do you wish the court to appoint an attorney to advise you?

'The Defendant: No, sir.

'The Court: I inform you that you are entitled to a trial by jury. Do you request a trial by jury?

'The Defendant: No, sir.

'The Court: Do you understand the information which the prosecuting attorney has read to you?

'The Defendant: Yes, sir.

'The Court: And to that information what do you plead?

'The Defendant: Guilty.

'The Court: You have entered a plea of guilty because you did the things that are stated in the information?

'The Defendant: Yes, sir.

'The Court: Have you entered your plea of guilty freely and voluntarily?

'The Defendant: Yes, sir.

'The Court: Has anyone caused any pressure to be brought against you to cause you to enter a plea of guilty?

'The Defendant: No, sir.

'The Court: Has anyone unduly influenced you to plead guilty?

'The Defendant: No, sir.

'The Court: Has anyone having any apparent authority promised you that the court would be lenient with you if you entered a plea of guilty?

'The Defendant: No, sir.

'The Court: You understand that by entering a plea of guilty, you submit yourself to the judgment and discretion of this court as to whether you may be sentenced to prison for a maximum term of four and one-half years, this being charged as a second offense, you understand that?

'The Defendant: Yes, sir.

'The Court: Under such circumstances your plea of guilty will be accepted and you will be returned to the custody of the warden until Thursday afternoon when your case will be finally disposed of. That's all.' (Emphasis supplied)

The proceeding at the sentencing of the defendant dated November 6, 1958, appears in the record as follows:

'Mr. Quinnell: In file 17437, the People of the State of Michigan versus John D. Cairns, the defendant having pleaded guilty to the crime of escaping from prison, the People move for sentence.

'The Court: You have entered a plea of guilty of breaking prison. Is there anything that you care to say before sentence is imposed upon you, or any reason why sentence should not now be imposed?

'The Defendant: Yes, Your Honor, I would like to know if this sentence of escape will run concurrently with my old sentence?

'The Court: No, under the statute last passed dealing with this subject, it provided that such sentence should be commenced at the end of the sentence which you are now currently serving.

'The Defendant: Would you be lenient on me?

'The Court: Well, we've got to discourage these people making these escapes. It's costing the taxpayers, the county, the State, a lot of money and it causes a lot of work.

'The Defendant: By your disciplining me there's no discouragement there to other men. If they're going to escape, they're going to escape, regardless of what you give me.

'The Court: I have conferred with the officer regarding your matter, and it is the judgment of this court that you be confined to the State House of Correction and Branch Prison in the Upper Peninsula at Marquette, Michigan, under the provisions of the Michigan Penal Code and the Michigan Code of Criminal Procedure, and the amendments thereto. I fix the minimum term of your imprisonment at two and one-half years, and the maximum at four and one-half years, such term to be commenced at the end of the sentence which you are now serving, and I leave it up to the probation officer as to whether you be required to serve more than the minimum of two and one-half years. That's all.'

The minimum requirements that had to be observed in Michigan at time of sentence to comply with due process upon arraignment and sentencing were contained in Court Rule No. 35--A, § 2 (1945), effective September 1, 1947, as follows:

'Sec. 1. Arraignment. If the accused is not represented by counsel upon arraignment, before he is required to plead the court shall advise the accused that he is entitled to a trial by jury and to have counsel, and that in case he is financially unable to provide counsel the court will, if accused so requests, appoint counsel for him. If the accused states he will procure counsel or requests that counsel be appointed, a reasonable time thereafter shall be allowed for counsel to consult with the accused before his plea shall be taken.

'Sec. 2. Imposing sentence. If the accused pleads guilty, after such plea and before sentence the court shall inform the accused of the nature of the accusation and the consequence of his plea; and regardless of whether he is represented by counsel, the court shall examine the accused, not necessarily under oath, and as a condition of accepting the plea of guilty and imposing sentence shall ascertain that the plea was freely, understandingly and voluntarily made, without undue influence, compulsion or duress, and without promise of leniency. Unless the court determines that the plea of guilty was so made, it shall not be accepted.'

The court on arraignment stated to defendant: 'I inform you that if you are not financially able to hire a lawyer, the court Can appoint one at the court's expense to advise you. Do you wish the court to appoint an attorney for you?' The word used in the court rule in this regard is 'will' indicating a certain rather than an optional action of appointing couns...