People v. Ginther, 5

CourtSupreme Court of Michigan
Citation390 Mich. 436,212 N.W.2d 922
Docket NumberM,No. 5,5
PartiesPEOPLE of the State of Michigan, Plaintiff-Appellee, v. Herbert Eugene GINTHER, Defendant-Appellant. ay Term. 390 Mich. 436, 212 N.W.2d 922
Decision Date18 December 1973

Page 922

212 N.W.2d 922
PEOPLE of the State of Michigan, Plaintiff-Appellee,
Herbert Eugene GINTHER, Defendant-Appellant.
No. 5, May Term.
390 Mich. 436, 212 N.W.2d 922
Supreme Court of Michigan.
Dec. 18, 1973.

[390 MICH 439]

Page 923

Harvey Koselka, Pros. Atty., Adrian, for plaintiff-appellee; Prosecuting Attorney's Appellate Service of Mich., Thomas R. Lewis, Director, James D. Hunter, Staff Attorney, Detroit, of counsel.

State Appellate Defendant Office by Stuart M. Israel, Asst. Appellate Defender, Detroit, Allan C. Miller, Ronald De Nardis, Research Assts., Detroit, for defendant-appellant; Martin Reisig, Detroit, of counsel.

Before the Entire Court.

LEVIN, Justice.

Herbert Eugene Ginther was convicted on his plea of guilty of the offense of breaking and entering with intent to commit larceny. M.C.L.A. § 750.110; M.S.A. § 28.305. The Court of Appeals affirmed. 39 Mich.App. 113, 197 N.W.2d 281. People v. Ginther, 39 Mich.App. 113, 197 N.W.2d 281 (1972).

Ginther contends that his guilty plea should be set aside because the judge erred in failing to [390 MICH 440] disqualify himself and in failing to grant Ginther's request, made before he pled guilty, for a substitute lawyer, and because a combination of coercive factors influenced him to plead guilty: the rejected motions for disqualification of the judge and for substitution of another lawyer, Ginther's ignorance of an intoxication defense, the harshness of jail conditions, a confession obtained in violation of Miranda and Escobedo rights.

Ginther also contends that the judge failed to inform him adequately of his right against self-incrimination during the bench questioning at the time the plea was offered and accepted; and that the minimum 7 year term of the 7 to 10 years sentence should be reduced to 6 2/3 years on the rationale of People v. Tanner, 387 Mich. 683, 199 N.W.2d 202 (1972).

Page 924


It has been said that an accepted plea of guilty 'is itself a conviction. Like a verdict of a jury it is conclusive.' Kercheval v. United States, 274 U.S. 220, 223, 47 S.Ct. 582, 583, 71 L.Ed. 1009 (1927). Similarly, see People v. Wolff, 389 Mich. 398, 208 N.W.2d 457 (1973).

The authorities are legion that a plea of guilty waives error committed by a judge in rulings on defense motions made before the plea is offered and accepted. 1

[390 MICH 441] Why an accepted plea of guilty should cure errors that a guilty verdict or finding would not cure has not been adequately explained. In a case where the plea of guilty is to a lesser included or lesser added offense, waiver by the defendant of judicial error might be deemed part of the agreed-upon consideration. Putting aside the legitimacy of such consideration, 2 all pleas are not bargained pleas. In this case Ginther pled guilty to the charged offense.

The posture of this case makes it unnecessary to decide whether the plea-waiver doctrine precludes consideration of the errors here assigned; the record on appeal does not factually support Ginther's claims that he is entitled to have his plea set aside.


An indigent defendant, entitled to the appointment of a lawyer at public expense, is not entitled to choose his lawyer. He may, however, become entitled to have his assigned lawyer replaced upon a showing of adequate cause for a change in lawyers. 3

When a defendant asserts that his assigned [390 MICH 442] lawyer is not adequate or diligent or asserts, as here, that his lawyer is disinterested, the judge should hear his claim and, if there is a factual dispute, take testimony and state his findings and conclusion.

A judge's failure to explore a defendant's claim that his assigned lawyer should be replaced does not necessarily require that a conviction following such error be set aside. Here, in contrast with People v. Williams, 386 Mich. 565, 194 N.W.2d 337 (1972), 4 and People v. Wilson, 43 Mich.App. 459, 204 N.W.2d 269 (1972), the record does not show that the lawyer assigned to represent Ginther was in fact inattentive to his responsibilities. Cf. People v. Holcomb, 47 Mich.App. 573, 588, 209 N.W.2d 701 (1973).

Ginther couples his claim that the judge should have substituted another lawyer

Page 925

with a claim that, in failing to advise Ginther of a possible intoxication defense, the assigned lawyer failed to represent him adequately. 5 Whether Ginther had a viable intoxication defense and whether the representation he received from his assigned lawyer was adequate depends on facts not of record. 'A convicted person who attacks the adequacy of the [390 MICH 443] representation he received at his trial must prove his claim. To the extent his claim depends on facts not of record, it is incumbent on him to make a testimonial record at the trial court level in connection with a motion for a new trial which evidentially supports his claim and which excludes reasonable hypotheses consistent with the view that his trial lawyer represented him adequately.' People v. Jelks, 33 Mich.App. 425, 431, 190 N.W.2d 291, 294 (1971).

If the record made before a defendant is convicted does not factually support claims he wishes to urge on appeal, he should move in the trial court for a new trial or, where the conviction is on a plea of guilty, to set aside the plea, and seek to make a separate record factually supporting the claims. See People v. Taylor, 387 Mich. 209, 218, 195 N.W.2d 856 (1972). 6 Without record evidence supporting the claims, neither the Court of Appeals nor we have a basis for considering them.

Although Ginther would have us reverse his conviction, until he establishes the factual substantiality of the claims that the judge should have disqualified himself, that another lawyer should have been substituted and that the plea of guilty was impermissibly induced, the only relief we could properly grant would be to require an evidentiary hearing concerning those claims.

A defendant who wishes to advance claims that depend on matters not of record can properly be required to seek at the trial court level an evidentiary hearing for the purpose of establishing his claims with evidence as a precondition to invoking [390 MICH 444] the processes of the appellate courts except in the rare case where the record manifestly shows that the judge would refuse a hearing; in such a case the defendant should seek on appeal, not a reversal of his...

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