People v. Ferguson

• Court: Michigan Supreme Court
• Writing for the Court: Before the Entire Bench, except T. G. KAVANAGH; BRENNAN; DETHMERS and BLACK, JJ., concurred with BRENNAN; T. M. KAVANAGH; ADAMS, and KELLY, JJ., concurred with T. M. KAVANAGH
• Citation: People v. Ferguson, 383 Mich. 645, 178 N.W.2d 490 (Mich. 1970)
• Decision Date: 17 July 1970
• Docket Number: No. 14,14
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Leonard FERGUSON, Defendant-Appellee.

Page 490

178 N.W.2d 490

383 Mich. 645

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Leonard FERGUSON, Defendant-Appellee.

No. 14.

Supreme Court of Michigan.

July 17, 1970.

Robert F. Leonard, Pros. Atty., by Donald A. Kuebler, Chief Asst. Pros. Atty., Flint, for plaintiff-appellant.

Thomas L. Gadola, Flint, for defendant-appellee.

Before the Entire Bench, except T. G. KAVANAGH, J.

BRENNAN, Chief Justice.

THE CASE

Defendant was convicted of armed robbery upon his plea of guilty. The plea was entered on May 20, 1958; a sentence of 30 to 50 years was imposed on June 30, 1958.

On February 17, 1966, defendant filed a motion to withdraw his plea of guilty and vacate the sentence. A hearing upon the motion was had in circuit court on February 21, 1966, and the motion was denied.

On appeal, the plea and conviction based thereon were set aside and a new trial granted. 13 Mich.App. 362, 164 N.W.2d 547.

THE FACTS

The proceedings on the taking of the plea were as follows:

'PROCEEDINGS HAD in the above entitled cause, before HONORABLE PHILIP ELLIOTT, Circuit Judge, on May 20th, 1958.

'APPEARANCES:

'Mr. Edward Joseph, Ass't. Prosecuting Attorney, appearing for the People.

'Mr. Geo. Baer and Mr. Thomas Gadola, appearing for the Respondents.

'MR. JOSEPH: This is criminal matter No. 16530, the People of the State of Michigan vs. Leonard Ferguson and Freddie Keels, charged with robbery armed. Mr. Ferguson is present represented by his attorney, Mr. Thomas Gadola and I understand he wishes to enter a plea.

'THE COURT:

'Q. You heard what the Prosecutor says, Mr. Ferguson?

'RESPONDENT FERGUSON: Yes, sir.

'Q. Is it your desire to plead guilty to this charge?

'A. Yes, sir.

'A. Do you understand what the charge is,--it is robbery armed?

'A. Yes.

'A. Yes, sir.

'Q. Have any threats or any promises been made in order to get you to plead guilty?

'A. No, sir.

'Q. Have you talked this over with your attorney Mr. Gadola?

'A. Yes.

'THE COURT: All right, I will accept the plea and defer sentence until the 30th of June.

'MR. BAER: I make a motion to have Leonard Ferguson's name endorsed on the information.

'THE COURT: All right. We hope that when Mr. Ferguson testifies, he will testify to the truth and the whole truth and nothing but the truth.

'MR. JOSEPH: Mr. Ferguson is remanded?

'THE COURT: Yes, he will be remanded to the custody of the Sheriff. He should not be put in the same pen with Mr. Keels.'

Defendant's affidavit in support of his motion to withdraw plea of guilty recites, in part:

'3. That your Petitioner did not know what possible sentence for armed robbery at the time he entered his plea of guilty; that he only learned of the possible sentence at the time the Court pronounced sentence.'

In denying the motion to set aside plea and vacate sentence, the circuit judge stated:

'Now, Mr. Gadola, I think I know you. Your father was a Circuit Court judge and so, you have a background of law. You may be a new young lawyer but I am quite sure that you probably told him what he could get. You probably informed him also that for robbery armed, there must be a prison term; that there cannot be parole or probation.

'I think that based on the fact that he was represented by a lawyer, the fact that the Court inquired whether he had discussed this with his attorney, and he said, yes; and then when he sentenced him, the Court said that robbery armed carries a possible life sentence, I am quite sure that with the information that he received from you in discussing his plea of guilty with you and what he could get, that he was well aware of the consequences of his plea.'

DISCUSSION

A plea of guilty terminates the adversary nature of a criminal charge.

'A plea of guilty is more than a confession which admits that the accused did various acts; it is itself a conviction; nothing remains but to give judgment and determine punishment.' Boykin v. Alabama (1969), 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274.

A plea of guilty embodies a waiver of every defense to the charge, whether constitutional, statutory or procedural.

A plea of guilty embodies a waiver of every constitutional right, both State and Federal, which belongs to an accused in his capacity as an accused; his right to be informed of the nature and cause of the accusation; his right to be presumed innocent; his right to have every element of the crime charged against him proven beyond a reasonable doubt; his right to a speedy and public trial, by an impartial jury of his peers; his right not to be compelled to be a witness against himself; his right to be confronted by his accusers; his right to have compulsory process for the attendance of witnesses in his behalf; and a host of other rights, less simply stated which comprise the totality of the American concept of due process of law.

That concept of due process of law is not coextensive will the Bill of Rights. Palko v. Connecticut (1937), 302 U.S. 319, 58 S.Ct. 149, 82 L.Ed. 288; Benton v. Maryland (1969), 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707.

It is not susceptible of precise definition; certainly it defies enumeration. To the extent that the concepts of due process and fair trial are flexible, viable standards, so the due process rights of an accused must remain incapable of recitation in full.

The right to testify in one's own behalf; the right to a trial free of mob hysteria, Moore v. Dempsey (1923), 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543; the right to a trial free from prejudicial media interference, Sheppard v. Maxwell (1966), 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600; the right to a trial free of illegally seized evidence, Mapp v. Ohio (1961), 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081; and coerced confessions, Miranda v. Arizona (1966), 384 U.S. 436, 84 S.Ct. 1602, 16 L.Ed.2d 694; all of these are of equal importance in the spectrum of constitutional rights, in that they form the threads of an ever-weaving notion of due process.

Only against this background can the pronouncements of the U.S. Supreme Court in Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70, and Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461, be evaluated.

Courts may not, as held in those cases, assume a waiver of constitutional rights from a silent record. But it does not follow that Johnson and similar cases stand for the proposition that the trial judge must direct the accused's attention to each and every constitutional right and then obtain a separate expressed verbal waiver of each, before they can be said to be extinguished.

No such standard has been imposed by the United States Supreme Court. Quite the contrary, that Court has emphasized in Boykin v. Alabama, Supra, that the plea of guilty constitutes the operative words of express waiver by which the several rights of the accused are let go.

'Several federal constitutional rights are involved in a waiver That takes place when a plea of guilty is entered * * *.' Boykin v. Alabama, supra, 395 U.S. p. 243, 89 S.Ct. p. 1712 (Emphasis added.)

'A defendant who enters such a plea Simultaneously waives several constitutional rights, * * *.' McCarthy v. United States (1968), 394 U.S. 459, 466, 89 S.Ct. 1166, 1171, 22 L.Ed.2d 418, 425. (Emphasis added.)

It was for this reason that the Supreme Court in Boykin, as in McCarthy, supra, has held that an on-the-record inquiry into the voluntariness of a plea of guilty is necessary.

It is precisely because a plea of guilty which is voluntarily, freely and understandingly made, Does constitute an express waiver of constitutional rights, that the Supreme Court has found unacceptable a guilty plea record which is silent upon the matter of the genuineness of the plea.

But it is urged that, even though the court is not obliged to obtain expressed item-by-item waivers of enumerated constitutional rights, the same kind of item-by-item advices must be given the defendant by the judge and on the record, before the court is justified in concluding that the offered plea is 'understandingly' made.

Whether or not Boykin is determined finally to have retroactive effect, we do not interpret that case as imposing any such item-by-item advices. The extent of an accused's 'understanding' of the act of pleading guilty varies with the capacity of the accused to understand. His knowledge and retention of all the relevant factors which ought to be weighed in reaching a decision to plead guilty will depend in each case upon the accused's mentality. His determination of which factors are relevant in arriving at that decision, and the weight he gives them are hidden in the secret recesses of his own motivation.

A trial judge is not competent to probe the psyche of the accused who stands before him. Judges are, however, competent and expected to make such inquiry as would lead a reasonable person to conclude that the defendant pleads guilty freely, voluntarily and understandingly--in short, that the defendant knows what he is doing, that he doesn't have to do what he is doing, but he wants to do it anyway.

The court below held:

'We are persuaded from our examination of the record in this case that the trial judge erred in failing to inquiry of the defendant Ferguson whether he was aware of the fact that upon conviction of armed robbery he might be sentenced to State prison for life or for any term of years. There is nothing in the record indicating the defendant was aware he faced such a lengthy sentence upon acceptance of his plea of guilty.'

and further that,

'* * * the trial judge should have inquired of the defendant whether he was aware of the possible minimum and of the maximum possible sentence as part of the obligation imposed upon the judge by the rule 'regardless of whether he (the defendant) is represented by counsel', to determine that the plea was Understandingly made.'

We do not agree that there was nothing in the record indicating the defendant was aware of the possible minimum and maximum sentences...