People v. Coates, Docket No. 6160

• Decision Date: 29 March 1971
• Docket Number: No. 2,Docket No. 6160,2
• Citation: 188 N.W.2d 265,32 Mich.App. 52
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Marshall COATES, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 265

188 N.W.2d 265

32 Mich.App. 52

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Marshall COATES, Defendant-Appellant.

Docket No. 6160.

Court of Appeals of Michigan, Division No. 2.

March 29, 1971.

Released for Publication July 7, 1971.

Milton R. Henry, Pontiac, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Denengoski, Sol. Gen., Thomas G. Plunkett, Pros. Atty., for plaintiff-appellee.

Before LEVIN, P.J., and T. M. BURNS and DANHOF, JJ.

DANHOF, Judge.

Defendant was charged with armed robbery, C.L.S.1961, § 750.529 (Stat.Ann.1969 Cum.Supp. § 28.797). A plea of guilty to the charge was accepted by the trial court and defendant was sentenced to a term of 4 to 16 years in prison. Defendant has appealed as of right praying for a new trial on two grounds:

(1) That the trial judge did not comply with the requirements of C.L.1948, § 768.35 (Stat.Ann.1954 Rev. § 28.1058), and GCR 1963, 785.3 in that, before accepting the defendant's guilty plea and sentencing, he did not by direct questioning of the defendant, ascertain the truth of the plea by establishing the crime and the defendant's participation in its commission as required by People v. Barrows (1959), 358 Mich. 267, 99 N.W.2d 347, and People v. Perine (1967), 7 Mich.App. 292, 151 N.W.2d 876.

(2) That the defendant was denied his right to be represented by counsel at the time of his sentencing.

The record shows that an armed robbery occurred on October 16, 1967 for which defendant and a man named Greenblatt were subsequently arrested. On November 9, 1967 a preliminary examination was held at which the victim, night clerk in a motel, unequivocally identified the defendant as one of the two men who robbed him and as the one who shot him with a small gun that looked like a beretta. The victim testified that the two robbers were in the office area two or three minutes and that he took a good look at both of them. On cross-examination by defendant's counsel, the victim testified that he also worked as a full time animal keeper at the Detroit zoo, that guns were a hobby of his, and that he was quite positive that one of the weapons used was a beretta.

On November 22, 1967, defendant was arraigned. The information was read to him. It stated in part:

'Marshall Coates late of the City of Ferndale in said County, heretofore to-wit, on or about the 17th day of October A.D. 1967 at the said City of Ferndale in said County, while armed with dangerous weapons or articles used or fashioned in a manner to lead the person so assaulted to reasonably believe them to be dangerous weapons, to-wit: a 32 caliber automatic and a 22 caliber revolver, did assault one Thomas J. Watson and did feloniously rob, steal and take from the person of Thomas J. Watson or in the presence of said Thomas J. Watson certain property which may be the subject of larceny, to-wit: United States Currency in the amount of $60.00, contrary to Section 750.529, of the Compiled Laws of 1948 as amended: M.S.A. section 28.797 as amended. (Maximum penalty--Life)'

The following colloquy then occurred:

'THE COURT: How do you plead?

'MR. COATES: I stand mute.

'And I would like to ask for an adjournment because my lawyer is not here.

'THE COURT: Who is your lawyer?

'MR. COATES: Arnold Fink.

'THE COURT: Is his appearance in the file?

'MR. PANTEL (Assistant Prosecuting Attorney): No.

'Your Honor, it is my understanding that he did represent the defendant at the examination level, but we do not have an appearance at the Circuit Court level.

'THE COURT: The Court must direct the plea of not guilty, under the law, for you.'

On January 16, 1968, defendant with his attorney present pleaded guilty to armed robbery. The transcript reads in part:

'MR. FINK: Your Honor, at this time, we wish to change our plea--the plea being standing mute, or not guilty at the arraignment on the information--we wish to plead guilty as charged.

'THE COURT: Is Mr. Arnold Fink your lawyer?

'MR. COATES: Yes, he is, your Honor. 'THE COURT: And did you hear what he said, that you wished to plead guilty to this charge of Robbery Armed?

'MR. COATES: Yes, I did.

'THE COURT: Has he explained to you that if I accept this plea, that it is possible that I could send you to State Prison for any number of years up to life? Has he explained that to you?

'MR. COATES: Yes, he has.

'THE COURT: Now, has anybody hurt you or harmed you in any way since you have been taken into custody and then released on bond, and been charged, to induce you to make this plea?

'MR. COATES: No, they haven't.

'THE COURT: Did anybody tell you that if you plead guilty that you might get off easy in some way or get a reward?

'MR. COATES: No, they haven't.

'THE COURT: Now, do you plead guilty, then, because you are guilty of the charge of Armed Robbery? Is that correct?

'MR. COATES: Yes, I do, your Honor.

'THE COURT: Do you understand that you do not have to plead guilty, that you can have a trial by jury and that Mr. Arnold Fink stands ready to represent you? And if you do not wish a jury trial, you can be tried by the Court alone? Do you understand that?

'MR. COATES: Yes, I do.

'THE COURT: You understand that if I accept the plea of guilty, there will be no trial?

'MR. COATES: Yes, I do.

'THE COURT: Have you fully advised him of all his Constitutional rights, Mr. Fink?

'MR. FINK: Yes, I have, your Honor.

'I would also like to state for the record, I have conferred with Mr. Coates last night, this morning, and this afternoon. I believe I have fully advised him of all his Constitutional rights and may state emphatically that Mr. Coates is pleading guilty as charged for the sole reason that he is in fact guilty, so being advised of all his Constitutional rights.

'THE COURT: Well, of course, Mr. Coates, if a person is charged with crime and if the person knows in their mind and heart that they are guilty of that crime, the first step in the right direction then, after having conferred with your counsel, is to plead guilty. I emphasize that the first step in the right direction is to do what you are trying to do at this time.

'I am going to accept your plea of guilty.

'And I am going to refer your case to the presentence investigating department called the Probation Department, for sentence February 26, at 2:00 o'clock in the afternoon.

'Do you understand that?

'MR. COATES: Yes, sir.'

On February 26, 1968, the defendant failed to appear for sentencing and his bond was forfeited and a bench warrant issued. He was arrested on June 13, 1968, in Detroit, Michigan.

On July 3, 1968, defendant was sentenced. He was apparently in the process of changing lawyers and neither his trial counsel nor his appellate counsel was present.

Defendant admits in his brief to this Court that the trial judge 'made every effort to establish the free and voluntary nature of appellant's plea below.' Defendant does not even now claim that he was innocent of the charge to which he pleaded guilty. Nor is this a case of plea bargaining where defendant pleaded guilty to a lesser crime than that with which he was charged. Rather, defendant seeks a new trial based on omissions in the trial judge's questioning of him which defendant thinks the appellate courts of this State require. Specifically, defendant contends that the trial judge did not establish a factual basis in support of the truth of the guilty plea by direct questioning of the defendant.

The major case relied on in support of the position that a trial judge must question the defendant regarding the acts constituting the crime before accepting the guilty plea is People v. Barrows, Supra. However, it is doubtful that that is what the Barrows case actually held. In that case the defendant was young, only 19, it was his first experience with a criminal court, his guilty plea was entered by his attorney, and the defendant was not directly questioned with regard to it by the judge. Further, he protested his innocence at every point when given an opportunity to do so and also protested his innocence on appeal.

On the authority of the Barrows decision, more is required than that the defendant agree with his attorney that it is expedient to plead guilty. There must be a reasonable ascertainment of the truth of the guilty plea. This is accomplished by the direct questioning of the defendant by the trial judge. The purpose of this direct questioning is to establish the crime and the participation therein of the defendant as a precaution against involuntary or induced false pleas of guilty and against subsequent false claims of innocence.

However, it is arguable that a trial judge has met the requirement of the Barrows case concerning direct questioning of a defendant for the purpose of establishing his participation in the crime when the trial court asks the defendant if he is pleading guilty because he is in fact guilty of the crime with which he is charged and the defendant answers yes. A decision on the merit of that argument is not essential to the disposition of the appeal before us.

Certainly the recent trilogy of Michigan Supreme Court cases, People v. Dunn (1968), 380 Mich. 693, 158 N.W.2d 404; People v. Stearns (1968), 380 Mich. 704, 158 N.W.2d 409; and People v. Winegar (1968), 380 Mich. 719, 158 N.W.2d 395, make it clear that reviewing courts should be concerned with substance, not form, and the fundamental inquiry is whether there has been a miscarriage of justice. Specifically, we note that in the Stearns case use was made of the information which was read to defendant and the presentence investigation at which defendant cooperated to establish a factual basis in support of the truth of the guilty plea. Similarly, in the Winegar case, the court held that there was no miscarriage of justice where the record showed that the court had conferred with the defendant in chambers and was convinced that he committed the crime, but there was no verbatim transcript of the...