People v. Carson

• Decision Date: 27 August 1969
• Docket Number: No. 2,Docket No. 4704,2
• Citation: 172 N.W.2d 211,19 Mich.App. 1
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Leroy CARSON, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 211

172 N.W.2d 211

19 Mich.App. 1

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Leroy CARSON, Defendant-Appellant.

Docket No. 4704.

Court of Appeals of Michigan, Division No. 2.

Aug. 27, 1969.

Released for Publication Dec. 1, 1969.

Leave to Appeal Denied May 12, 1970.

Gay S. Hardy, Lansing, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Raymond L. Scodeller, Pros. Atty., James R. Ramsey, Asst. Pros. Atty., Ingham County, Lansing, for appellee.

Before GILLIS, P.J., and BRONSON and LEVIN, JJ.

LEVIN, Judge.

On December 6, 1934, the defendant pled guilty to an open charge of murder. At the statutory degree hearing ¹ he was found guilty of first degree murder. ² The mandatory sentence of life imprisonment was imposed. He now appeals on leave granted from the denial of a motion for a new trial. ³

The defendant's main contention is that he was not informed of and did not waive his constitutional right to be represented by counsel. The people concede that the defendant was not represented by counsel when he pled guilty in 1934.

There is no transcript of the 1934 guilty plea proceeding. The judge before whom the defendant appeared in 1934 and the court reporter are both dead. Without a transcript and without the testimony of those persons, in addition to the defendant, who were present when he pled guilty, we are handicapped in this inquiry concerning the truth of the defendant's assertion that the trial judge did not inform him of and he did not waive his right to counsel. For reasons which we will now relate, certain factors lead us to believe that it is more probable than not that the defendant in this case was not informed of his right to counsel.

The rapid expansion of Federal constitutional guarantees to cover criminal trial proceedings in State courts is a relatively recent development. Pertinent to our present inquiry are a series of cases decided by the United States Supreme Court. Now, as a matter of Federal constitutional right, one accused of committing a felony is entitled to be represented by counsel, and, if indigent, to the appointment of counsel at government expense. ⁴ This right may be waived by the defendant himself but his knowledge and waiver of the right must affirmatively appear in the record ('presuming waiver from a silent record is impermissible'). ⁵ ] These requirements apply to the States through the Fourteenth Amendment ⁶ and apply retroactively to cases where conviction became final before announcement of these requirements. ⁷ Accordingly, if Carson was not advised of his right to counsel and did not waive that right before he pled guilty in 1934, he is now entitled to have his conviction and guilty plea set aside.

In 1934, a Michigan trial judge had no duty to inform an accused person that he had a right to be represented by counsel and, if he desired but could not afford counsel, that the court would appoint counsel for him at State expense. People v. Williams (1923), 225 Mich. 133, 137, 138, 195 N.W. 818; People v. Crandell (1935), 270 Mich. 124, 126, 127, 258 N.W. 224. The initiative was placed on the indigent defendant to request counsel. People v. Williams, Supra, 225 Mich. p. 138, 195 N.W. 818; People v. Crandell, Supra, 270 Mich. p. 127, 258 N.W. 224; People v. DeMeerleer (1946), 313 Mich. 548, 551, 21 N.W.2d 849; In re Elliott (1946), 315 Mich. 662, 674, 24 N.W.2d 528. Even if a request was made the trial judge was not obliged to appoint counsel; appointment was discretionary. Indeed, it appears that one who planned to plead guilty was not 'entitled' to have counsel appointed. People v. Harris (1934), 266 Mich. 317, 318, 253 N.W. 312; People v. Williams, Supra, 225 Mich. p. 138, 195 N.W. 818.

'The appointment of counsel is discretionary with the court, and one who pleads guilty is not entitled to such appointment.' People v. Harris (1934), 266 Mich. 317, 318, 253 N.W. 312.

In 1947, following reversal of People v. DeMeerleer by the United States Supreme Court (DeMeerleer v. Michigan (1947), 329 U.S. 663, 67 S.Ct. 596, 91 L.Ed. 584), the Michigan Supreme Court promulgated Court Rule 35A (318 Mich. xxxix,) which required that the trial court advise the accused of his right to counsel. The new rule was regarded by one commentator to constitute a departure from 'the established Michigan practice.' Honigman, Michigan Court Rules Annotated (1949), p. 363. ⁸

We are persuaded on the evidence before us that if the trial judge in this case conformed to the general 1934 practice, he would not have informed the defendant of his right to counsel. ⁹ Accordingly, because there is a strong probability that the defendant was not informed of that right, we have decided to credit his assertion that he was not so informed and did not waive the right to counsel before he pled guilty.

The people in this case argue that a presumption of regularity protects the 1934 guilty plea proceeding. ¹⁰ However, the presumption of regularity allows us to presume only that a trial judge conformed to the standard extant at the time he acted, not, as the people argue, that the 1934 trial judge anticipated and conformed to subsequent constitutional and court rule developments.

The presumption of regularity does not justify our assuming that something was done that was not required to be, and ordinarily was not, done. Rather the presumption of regularity supports the defendant's assertion; it is more probable that a trial judge taking a guilty plea in 1934 did not inform an accused person of his right to counsel.

We do not mean to be understood as saying that the unavailability of the transcript of the proceedings at which an accused person was convicted necessarily affects the validity of his conviction. The failure of the State to provide a transcript when, after good faith effort, it cannot physically do so, does not automatically entitle a defendant to a new trial. Norvell v. Illinois (1963), 373 U.S. 420, 83 S.Ct. 1366, 10 L.Ed.2d 456, rehearing denied 375 U.S. 870, 84 S.Ct. 27, 11 L.Ed.2d 99; United States ex rel. Smart v. Pate (C.A. 7, 1963), 318 F.2d 559, 562; contrast United States ex rel. Westbrook v. Randolph (C.A. 7, 1958), 259 F.2d 215. We hold, rather, that where there is no transcript the defendant may offer proof in support of his assertions of what occurred when he was convicted. Taylor v. United States (C.A. 10, 1952), 193 F.2d 411. In this case the defendant is aided by the fact that the record shows that he did not have assistance of counsel when he pled guilty or at the degree hearing and, by the rule of Burgett v. Texas (1967), 389 U.S. 109, 114, 88 S.Ct. 258, 19 L.Ed.2d 319, such a record raises 'a presumption that petitioner was denied his right to counsel * * *, and therefore that his conviction was void.' ¹¹

The people also argue that even if the defendant was not informed of his right to counsel, he was aware of this right from his prior experience with the law, and, therefore, he knew he could obtain the appointment of counsel upon request. We have already observed that the United States Supreme Court has held that the defendant's knowledge of his right to counsel and his waiver of that right must affirmatively appear on the record (supra at footnote 5); it is, therefore, to be doubted whether an accused person's knowledge not appearing on the record of his right to counsel coupled with his silence can ever constitute an affirmative waiver. ¹² People v. Dunn (1968), 380 Mich. 693, 698, 158 N.W.2d 404. We have also already observed that, even if the defendant had requested the appointment of counsel in the 1934 proceeding during which he pled guilty, the trial judge would not have been obliged to grant his request. People v. Harris, Supra. Furthermore, while the defendant did have 2 prior experiences with the law, we are convinced that neither of them would have apprised him of his right to counsel when pleading guilty. On the contrary, his prior experience might well have led him to conclude that one who pleads guilty does so without the benefit of counsel. ¹³

None of the recent opinions of the Michigan Supreme Court cited by the people (People v. Hobdy (1968), 380 Mich. 686, 158 N.W.2d 392; People v. Stearns (1968), 380 Mich. 704, 158 N.W.2d 409; People v. Dunn, Supra; People v. Winegar (1968), 380 Mich. 719, 158 N.W.2d 395) is dispositive of the issue before us. These cases concern the sufficiency of the information given by the trial judge to the accused regarding his right to counsel and whether the defendant's actions following an offer of counsel constituted a waiver of that right. Sufficiency of advice and waiver are not issues in the case now before us; we are concerned with the question of whether the defendant was informed at all of his right to counsel which is antecedent to the questions of sufficiency of advice and waiver.

None of the cited cases relates to a factual situation where nothing whatsoever was said regarding counsel. In one of them, People v. Dunn, Supra, 380 Mich. p. 698, 158 N.W.2d p. 406, the Court stated its adherence to the principles that 'waiver of counsel is impermissible from a silent record. * * * A right cannot be waived where there is no showing the accused was aware of the right.'

The most analogous recent decision of the Michigan Supreme Court is In re Palmer (1963), 371 Mich. 656, 124 N.W.2d 773, where the Court reversed the conviction of one who pled guilty in 1942 to second degree murder on the ground that the record did not show that he had been advised of his right to counsel. ¹⁴

Although it has been suggested that the precedential value of Palmer was limited by People v. Hobdy, we are satisfied that the holding in Palmer is still controlling in cases presenting analogous factual situations. Hobdy, supra, emphasized that (380 Mich. p. 689, 158 N.W.2d p. 393):

'it is not contended by defendant (Hobdy) that the circuit judge did not advise him of his Right to...