People v. Dunn
| Decision Date | 08 May 1968 |
| Docket Number | No. 46,46 |
| Citation | 158 N.W.2d 404,380 Mich. 693 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellant, v. John DUNN, Jr., Defendant-Appellee. |
| Court | Michigan Supreme Court |
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Bruce A. Barton, Pros. Atty., Jackson County, Vincent F. Stapley, Asst. Pros. Atty., Jackson County, Jackson, for plaintiff-appellant.
Howard W. Patch, Jackson, for defendant-appellee.
Before the Entire Bench.
This is an appeal, on leave granted, to the people of the State of Michigan, from a denial of a rehearing by the Court of Appeals. In its order on which rehearing was sought, the Court of Appeals on its own motion reversed a judgment of conviction entered upon the defendant's plea of guilty.
The guilty plea was accepted by the trial court on July 24, 1962. A motion for a new trial was denied and delayed appeal therefrom was granted by the Court of Appeals September 30, 1966.
At the time of the acceptance of defendant's guilty plea, Court Rule 35--A (1945) was in effect. It is identical with GCR 1963, 785 as originally drafted. See 379 Mich. at pages xvi and xvii.
In 1958, appellee had been sentenced to confinement in the State prison in Jackson. On July 11, 1962, he was arraigned on the charge of escaping from prison. Upon his arraignment on this offense the court rejected his inconclusive plea to the charge and entered a plea of not guilty, and he was confined to await trial. On July 24, 1962, he was again before the circuit judge at his own request, as appears from the following questions and answers contained in the transcript of the second appearance:
'MR. FLEMING (Prosecuting Attorney): I understand, Mr. Dunn, that you requested to be brought back into Court today for the purpose of changing your plea, is that correct?
After this further examination by the court his guilty plea was accepted. Insofar as it is relevant to the issues raised by this appeal, appellee's questioning by the trial judge, on his first appearance, is herewith set forth:
The first question raised is whether appellee waived his right to counsel. On his first appearance before the court he was clearly advised of this right. He requested that he be brought before the court again. His purpose in so requesting was determined by question and answer. There was no necessity that the court again inform him of his right to appointed counsel. When he stated to the court that he desired to plead guilty, after being informed of his right to appointed counsel, he waived that right intelligently and competently. There is no requirement that this waiver be in express form. See People v. Hobdy, Mich., 158 N.W.2d 392, decided May 8, 1968.
The nature of the examination of the accused required by the court rule before the acceptance of a plea of guilty need not be in any stereotyped form.
'The form and manner of this examination by the judge has not been prescribed but is left to the discretion of the judge, to be exercised by him in the manner best suited to the parties and the offense.' (People v. Bumpus, 355 Mich. 374, at p. 380, 94 N.W.2d 854, at p. 857.)
It is argued on behalf of appellee that United States Supreme Court case precedent mandates a holding that the right to counsel was not waived in this case. Principal reliance is placed upon Carnley v. Cochran, 1 Gideon v. Wainwright 2 and Johnson v. Zerbst. 3 It should be noted that none of these cases involved the acceptance of a plea of guilty. No case is cited to us, nor does our research reveal one in which the United States Supreme Court has passed on the question of what constitutes a waiver of counsel upon a plea of guilty (See Hobdy, supra). The foregoing trilogy of United States Supreme Court cases is obviously distinguishable from the case at bar.
In Gideon, the accused specifically requested appointed counsel with his plea of Not guilty and his request was refused. His Conviction was set aside.
Johnson was a case in which 2 young Marines on leave were tried for a felony and Convicted without the aid of counsel. They, too, pleaded not guilty.
Carnley, too, was a case of trial without assistance of counsel.
But accepting arguendo that the precedential language set forth in the brief of appellee is applicable by analogy, we find they hold in principle as follows. Waiver of counsel is impermissible from a silent record. We agree. A right cannot be waived where there is no showing the accused was aware of the right.
The right when explained thereafter must be understandingly, competently and intelligently waived.
Carnley v. Cochran, supra, 369 U.S. p. 516, 82 S.Ct. p. 890.
'This protecting duty (referring to the responsibility of a trial judge where a defendant has no counsel) imposes the serious and weighty responsibility upon the trial judge of determining whether there is an Intelligent and Competent waiver by the accused.' (Emphasis supplied.) Johnson v. Zerbst, supra, 304 U.S. p. 465, 58 S.Ct. p. 1023.
(Emphasis supplied.)
Gideon v. Wainwright, supra, 372 U.S. pp. 339, 340, 83 S.Ct. p. 794.
We here hold that when a trial judge says, as did Judge Simpson here, 'You understand * * * that you are entitled to an attorney of your own choice and if you are unable to furnish one that the State will furnish you one,' the right to assistance of counsel has been explained, and an offer of counsel made.
We further hold that after such an explanation, or one of like substance, and the court asks, as here, a question that fairly imports 'What do you want to do?' and the accused replies, in substance, 'I plead guilty,' or 'I desire to plead guilty,' he has within all constitutional rule, statute and case law requirement, competently, intelligently and understandingly waived his right to counsel.
The next issue presented is whether by reason of the requirement in the rule that the accused be advised of the 'consequence of his plea' the trial court is obliged to inform him of the maximum sentence which could be imposed.
There is no such requirement, any prior holding by the Court of Appeals to the contrary notwithstanding. 4 Such requirement is not mandated by the Constitution of the United States, the Constitution of this State, statute, rule of court, or binding case precedent, State or Federal. So to require is to misconstrue the purpose of the examination of the accused by the trial court. The effect of so holding is to make the test of valid plea of guilty, not whether it is freely, understandingly and voluntarily made but whether the punishment prescribed accords with the accused's notion of what he is willing to subject himself to by his plea of guilty. The purpose of the court's examination as prescribed by rule is not to determine what the accused can expect the judge may do by way of disposition. The purpose is to find out if the accused is pleading guilty because he in fact is guilty, and that his plea of guilty is freely made. In the words of the statute, to determine the 'truth of such plea.' This State has traditionally separated the question of guilt or innocence from the question of punishment. Even in the Trial of a criminal case it is improper, unless provoked, to argue to a jury what the accused's sentence could be. See People v. Singer, 174 Mich. 361, 140 N.W. 522.
We do not find that 'consequence of his plea' has been precisely defined in any prior decision of this Court as that phrase is used in GCR 1963, 785.3. We here hold that the meaning of the 'consequence' of a plea of guilty, within the wording of the rule, is that an accused, by so pleading, waives his right to trial by jury, or trial without a jury by the court, and that additionally the accused subjects himself to whatever penalty is prescribed by law, including possible confinement in a penal institution. Under the rule the accused must be advised minimally of the foregoing. Any additional information the trial judge is disposed to give to an accused rests in his discretion to be exercised according to the circumstances.
We have noted the reference by the parties to the 'Tentative Draft on Standards Relating to Pleas of Guilty (1967) Prepared by the Advisory Committee on the Criminal Trial of the ...
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