People v. Gunsell, 60
| Decision Date | 05 September 1951 |
| Docket Number | No. 60,60 |
| Citation | 49 N.W.2d 83,331 Mich. 105 |
| Parties | PEOPLE v. GUNSELL. |
| Court | Michigan Supreme Court |
Frank G. Millard, Atty. Gen., Edmund E. Shepherd, sol. Gen., Lansing, for the People.
Alonzo Gunsell, in pro per.
Before the Entire Bench.
On March 7, 1946, defendant Alonzo Gunsell and one Joseph Burgess, who is not a party to this appeal, were arraigned jointly on an information charging them with breaking and entering in the nighttime on February 21, 1946, with intent to commit larceny. Both pleaded guilty. On March 11, 1946, they were jointly arraigned on a supplemental information charging them with being third offenders.
The supplemental information recited the breaking and entering on February 21, 1946, and that Gunsell was a third offender in that on March 3, 1939, he was convicted of perjury in Genesee county, that being a second offense.
The supplemental information does not recited the requisite first offense, and does not say that Gunsell was convicted on the breaking and entering charge. When Gunsell and Burgess pleaded guilty as third offenders they were not represented by counsel. Gunsell was asked if he ever had been convicted of the crime of perjury, and he answered, 'No, sir.' The court then observed: Assistant Prosecutor Shaheen replied:
'We will have to make a motion to amend the information, Your Honor.
'The Court: Burgess, your former conviction was a second offense of burglary too, wasn't it?
'The Court: (To Mr. Shaheen) He will have to amend the information.
'Mr. Shaheen: I will amend the information as far as Mr. Gunsell is concerned.'
An undated amended supplemental information, which does not contain the perjury charge, is attached to the record. In this supplemental information it is charged that Gunsell and Burgess did feloniously break into and entered a coal office in the nighttime on February 21, 1946. This is again charged as a third offense. Gunsell is also charged with having been convicted on March 3, 1939, of breaking and entering in the nighttime. This is charged as a second offense. Burgess is charged with the 1946 breaking and entering as a third offense, and he is also charged with a second offense in that he pleaded guilty on April 2, 1938, to breaking and entering on a date not recited in the information. No first offense is charged in this supplemental information against either defendant.
The recitals in the settled record say this amended supplemental information was filed March 11, 1946.
On March 25, 1946, both men were sentenced by Judge Gadola to imprisonment for not less than 15 nor more than 30 years for breaking and entering in the nighttime as third felony offenders.
There is nothing in the transcript of March 25, 1946, to indicate that the sentence was imposed for the breaking and entering of February 21, 1946. There is in the files the certified copy of the warrant for the removal of prisoner, indicating that Gunsell's sentence of 15 to 30 years 'was for breaking and entering in the nighttime, third offense.' No date of the offense is recited.
On May 19, 1947, a hearing was had on Gunsell's motion to withdraw his plea of guilty and vacate the judgment. He was at that hearing represented by counsel who raised questions of (1) denial of aid of counsel at his trial, (2) failure to impose sentence on the prior conviction, and (3) failure of the court of comply with the statute regarding arraignment, trial and sentence on supplemental information. C.L.1948, § 769.13, Stat.Ann. § 28.1085. This motion was denied and no appeal was taken.
A motion for a rehearing was filed on February 16, 1949, and denied on April 27, 1949. At this hearing the prosecutor's motion for leave to file a second 'amended supplemental information' was also denied.
On November 25, 1949, a second motion for a rehearing was filed. It was denied March 2, 1950.
March 23, 1950, the trial court entered an order rejecting Gunsell's proposed concise statement of facts, which he says he had filed on March 6, 1950. Gunsell claims that he then filed a 'corrected application for leave to appeal,' and that the trial judge on October 12, 1950, signed and certified 'a counter-concise statement of facts submitted by the people,' The certificate which the trial judge signed, as shown by the files of this court, is, however, limited in nature and was signed by him on March 2, 1951.
This court granted Gunsell leave to appeal on January 9, 1951.
The typewritten record on appeal contains certified copies of the transcript of proceedings before Judge Cadola on March 6, 1946, March 11, 1946, and March 25, 1946. In the last of these there is a statement by the trial judge to Gunsell regarding his criminal record, with mention of a four-year probation imposed by Judge Black (no date mentioned), indicating a first offense, and another pertaining to a charge of unlawfully driving away an automobile, and some intimation that the one then under consideration was a fourth offense and that Gunsell was at the time on parole. None of these matters, however, is included in either the original or amended supplemental information on which Gunsell and Burgess were jointly charged as third offenders.
The transcript of the hearing on May 19, 1947, on Gunsell's motion to set aside conviction, etc., shows the following:
Gunsell's counsel stated:
'The proceedings I have here from the clerk's office only show a sentence on the habitual criminal act.
'The Court: That is all that is necessary.
'Mr. McLaughlin: There was no sentence on the breaking and entering charge.
'The Court: That is all that is necessary,'
No explanation is given regarding a certified copy of record of sentence on plea of guilty on the breaking and entering charge, which appears in the settled record. This copy does not mention a third offense. It shows that a sentence of 15 to 30 years was imposed on March 25, 1946, with 'recommendation that sentence and parole run concurrently.' The statutory maximum sentece for breaking and entering in the nighttime, etc., is 15 years. C.L.1948, § 750.110, Stat.Ann. § 28.305.
Gunsell, who appears here in pro per, states in his brief that on March 11, 1939, he received a sentence of 7 1/2 to 22 1/2 years upon his convicition as a second offender.
The certified transcript of the proceedings of March 25, 1946, on the supplemental charge is silent as to his sentence, except it shows, after questioning Gunsell at length regarding prior convictions and his violation of the habitual criminal act, the court said: ...
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