People v. Cross

• Decision Date: 11 February 1971
• Docket Number: No. 2,Docket No. 8911,2
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Everett V. CROSS, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 398

186 N.W.2d 398

30 Mich.App. 326

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Everett V. CROSS, Defendant-Appellant.

Docket No. 8911.

Court of Appeals of Michigan, Division No. 2.

Feb. 11, 1971.

Released for Publication April 30, 1971.

Everett V. Cross, in pro per.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Robert F. Leonard, Pros. Atty., Donald A. Kuebler, Chief Asst. Pros. Atty., for plaintiff-appellee.

Before LESINSKI, C.J., and HOLBROOK and T. M. BURNS, JJ.

LESINSKI, Chief Judge.

Cross, an indigent, was charged with unlawfully driving away an automobile. ¹ On June 20, 1969, he pleaded guilty to the charge and on August 5, 1969, he was sentenced to a term of 4 1/2 to 5 years. On November 6, 1969, defendant In propria persona filed with the trial court a motion requesting that the court direct the county clerk to furnish him with the following specified records and transcripts:

'Complaint; Warrant; Transcripts of Arraignment; Transcripts of Preliminary Examination; Return of Order of Allowance; Transcripts of Circuit Court Arraignment; Transcripts of Guilty Plea; and the Transcripts of Sentencing.'

Defendant represented to the court that the records and transcripts were required 'for the purpose of perfecting an appeal (delayed) post-conviction.'

It should be noted that this was defendant's first and only effort to appeal his conviction or to obtain any post-conviction relief, either direct or collateral.

On November 17, 1969, the Honorable Elza H. Papp denied defendant's motion stating as grounds that:

'This cause coming on to be heard on the motion of defendant Everett V. Cross, In propria persona, who petitions the Court to enter an order directing the circuit court clerk to give him transcripts and records of his case at public expense because of his alleged indigent status; and

'Whereas, it appears that defendant was sentenced on August 5, 1969, by the Honorable Stewart A. Newblatt, J., and was informed by the court of his rights to appellate review, and that such requests were to be made to the court within 60 days from that date, and that failure to timely petition for either indigent appellate counsel or free records in his case would cause him to lose those rights; and

'Whereas, it appears that defendant's present request dated November 6, 1969, has not been timely filed, and there is no showing that the delay is not due to defendant's culpable negligence, defendant is not therefore entitled to the relief he now seeks.

'It is therefore, ordered, that the above motion be, and the same is hereby denied.'

On February 4, 1970, defendant, proceeding In propria persona and without benefit of transcript, filed a 'petition for writ of Habeas corpus' with this Court. As part of his brief in support of this petition for a writ of Habeas corpus, defendant presents, Pro se, the following question:

'1. EX PARTE ASSIGNED QUESTION NO. 1

'Did the denial of the trial court to grant petitioner's prayer in his petition for transcripts and records, petitioner acting In propria persona, counsel of record, on his first time to make application for post-conviction appeal (delayed) and petitioner unable to appeal his conviction properly without the certified records, operate to deny this injured petitioner his due process of law and equal protection of the laws, under the provisions contained in the Fourteenth Amendment of the Constitution of the United States of America, and under the provisions contained in the Michigan general court rules, 803.3, 806.3 and 806.4, respecting (delayed) appeal?'

Under the prior accepted practice of this Court, we would ordinarily, under like circumstances, treat defendant's petition as an application for leave to take a delayed appeal. However, neither this Court nor the defendant has been favored with protions of the records and transcripts sufficient to determine if there exist meritorious grounds for review of defendant's conviction. We have had access only to that portion of the transcript which the prosecuting attorney quotes in his brief in opposition to the granting of leave to appeal and in opposition to defendant's request that he be furnished with the transcript.

Heeding the admonition of the United States Supreme Court in Gardner v. California (1969), 393 U.S. 367, 89 S.Ct. 580, 21 L.Ed.2d 601, to refrain from taking the role of Parens patriae, we have not searched the record to find possible error in defendant's conviction or to determine whether there exists meritorious grounds for appeal. We, therefore, refrain from granting or denying leave to appeal and will treat the claim of defendant contained in his question quoted above as an application for superintending control.

Thus, for the first time the question is clearly and squarely presented to an appellate court of this State--Does a convicted defendant who has not taken a timely appeal as of right, have a right to be provided with free transcripts of trial court proceedings when he later requests such transcripts for the purpose of preparing, Pro se, an application for leave to take a delayed appeal?

Under the provisions of Const.1963, art. 1, § 20, every person convicted of a crime has an appeal as a matter of right. GCR 1963, 803.1 provides for a jurisdictional limit of 60 days for the taking of the appeal of right. See, also, GCR 1963, 806.1.

GCR 1963, 803.3 permits delayed appeals and provides that after expiration of the period for timely appeal, this Court may, in its discretion, grant leave to appeal upon a showing of merit in the grounds for appeal and that the delay was not due to the defendant's culpable negligence. In criminal appeals there is no limit on the time during which a convicted defendant may seek leave to take a delayed appeal. GCR 1963, 806.4(2). Hampton v. Buchkoe (CA6, 1964), 334 F.2d 6, 7.

There is no need to consider in this case whether the Court must appoint counsel to assist a convict in taking a delayed appeal. ² However, it cannot be disputed that Const.1963, art. 1, § 13 confers the right to seek relief In propria persona via that appellate route.

The question remains as to what assistance, if any, must be provided by the State to an indigent proceeding In propria persona who has failed to take a timely appeal as of right and is seeking leave to take a delayed appeal from his conviction. Const.1963, art. 1, § 20 requires that an indigent shall have the right 'to have an appeal as a matter of right; and in courts of record, when the trial court so orders, to have such reasonable assistance as may be necessary to perfect and prosecute an appeal.'

In this situation we are faced with two basic questions: (1) Did the indigent, by failing to take a timely appeal, waive or in any other manner, lose his right to be provided with a transcript for use in perfecting and prosecuting a delayed appeal? (2) May the giving or withholding of a transcript be placed within the discretion of the trial judge? The ultimate question, of course, is whether the indigent defendant seeking leave to take a delayed appeal is entitled to a transcript of the trial court proceedings.

We are here clearly confronted with a question of defendant's right under the Constitution of the United States. In any case requiring the determination of rights under the Federal Constitution, decisions of the United States Supreme Court are controlling; and the Supreme Court of Michigan is bound by the decisions of the United States Supreme Court which define Federal Constitutional rights. Boykin v. Alabama (1969), 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274; Chapman v. California (1967), 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705, reh. den. 386 U.S. 987, 87 S.Ct. 1283, 18 L.Ed.2d 241; Murphy v. Waterfront Commission of New York Harbor (1964), 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678; Malloy v. Hogan (1964); 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653; Maryland Committee for Fair Representation v. Tawes (1964), 377 U.S. 656, 84 S.Ct. 1429, 12 L.Ed.2d 595; Advisory Opinion re Constitutionality of PA 1966, No. 261 (1968), 380 Mich. 736, 158 N.W.2d 497; People v. Walker (On Rehearing, 1965), 274 Mich. 331, 132 N.W.2d 87; People v. Gonzales (1959), 356 Mich. 247, 97 N.W.2d 16.

In following these decisions of the United States Supreme Court and the Michigan Supreme Court, this Court has held in a number of cases that in the determination of Federal Constitutional rights, decisions of the United States Supreme Court are binding on this Court. People v. Wiejecha (1968), 14 Mich.App. 486, 165 N.W.2d 642; People v. Wolfe (1967), 5 Mich.App. 543, 147 N.W.2d 447; People v. Imbrunone (1966), 5 Mich.App. 42, 145 N.W.2d 844. It is obvious, therefore, that any constitutional or statutory provision, any court rule or any holding in a State court decision which defines Federal Constitutional rights must fall if it fails to meet minimum standards set forth in decisions of the United States Supreme Court. ³

An examination of the decisions of that Court shows that an indigent's right to a free transcript on appeal is considered to be more basic than his right to counsel on appeal. Griffin v. Illinois (1956), 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, 55 A.L.R.2d 1055, reh. den. 351 U.S. 958, 76 S.Ct. 844, 100 L.Ed. 1480, which established the right of an indigent to be furnished with a transcript at public expense on appeal was decided seven years before Gideon v. Wainwright (1963), 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733, which established the right to counsel at trial in noncapital cases and Douglas v. California (1963), 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811, reh. den. 373 U.S. 905, 83 S.Ct. 1288, 10 L.Ed.2d 200, which established the right to counsel on appeal. The cases, Post, show that the court regards the lack of transcript as affecting access to the courts or availability of appeal, whereas the lack of counsel affects the quality of appeal.

The question of...