People v. Hendrick
| Decision Date | 26 March 1974 |
| Docket Number | Docket No. 14276,No. 3,3 |
| Citation | 217 N.W.2d 112,52 Mich.App. 201 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Grant H. HENDRICK, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., James Noecker, Pros. Atty., for plaintiff-appellee.
Before HOLBROOK, P.J., and T. M. BURNS and CHURCHILL,* JJ.
The defendant, Grant H. Hendrick, was arrested on October 20, 1971, and charged with breaking and entering with intent to commit larceny, M.C.L.A. § 750.110; M.S.A. § 28.305, and assault with intent to do great bodily harm less than murder, M.C.L.A. § 750.84; M.S.A. § 28.279. Defendant pled guilty to the breaking and entering charge on October 21, 1971. He pled not guilty to assault with intent to do great bodily harm less than murder and, after trial, was found guilty of that charge. On January 10, 1972, he was sentenced to a term of 9 1/2 to 10 years imprisonment on each of the foregoing charges.
Immediately after defendant was sentenced on January 10, 1972, the people filed a supplemental information charging defendant with being a habitual criminal pursuant to M.C.L.A. § 769.12; M.S.A. § 28.1084 which provides in pertinent part:
'A person who after having been 3 times convicted within this state, of felonies or attempts to commit felonies, or under the law of any other state, government or country, of crimes which if committed within this state would be felonious, commits any felony within this state is punishable upon conviction as follows: If the felony for which such offender is tried is such that upon a first conviction thereof the offender might be imprisoned in a state prison for a maximum term of 5 years or more, or for life, then such person may be sentenced upon conviction of such fourth or subsequent offense to imprisonment in a state prison for the term of his natural life or for any lesser term in the discretion of the court * * *.'
The supplemental information and an amended supplemental information charged that the defendant had been convicted of the following felonies: (1) second-degree burglary in the State of Washington on January 21, 1966, (2) robbery in the first degree in the State of North Dakota on September 26, 1966, (3) escape from prison in the State of North Dakota on October 1, 1968, (4) breaking and entering an unoccupied building with intent to commit a larceny in the State of Michigan on October 21, 1971, and (5) assault with intent to do great bodily harm less than murder in Michigan on December 20, 1971.
Defendant was arraigned on the supplemental and amended supplemental informations and stood mute. The court entered a plea of not guilty on behalf of defendant.
Prior to trial, defense counsel moved to quash the supplemental information on the ground that defendant had been denied the benefit of a preliminary examination. The trial court denied the motion to quash, finding that the habitual criminal act did not require a preliminary examination.
Once again, prior to trial, defense counsel moved to quash the information, this time on the grounds that since the prosecutor was aware of the defendant's prior convictions before the guilty plea on the breaking and entering charge and before trial on the assault charge in December of 1971, the supplemental information was required by statute to be filed before trial on the assault charge. This motion to quash was also denied by the trial court.
A jury trial was held on the habitual criminal charge in February of 1972. The jury returned a verdict of guilty and defendant was sentenced to life imprisonment. Defendant filed a motion for a new trial which was denied by the trial court.
Defendant claims that his conviction as a habitual criminal under the provisions of M.C.L.A. § 769.12; M.S.A. § 28.1084, Supra, was invalid by reason of the fact that the court improperly considered certain of his previous convictions as the basis for his conviction as a habitual offender.
On October 21, 1971, defendant pleaded guilty in St. Joseph County, Michigan, to the offense of breaking and entering. Defendant argues that the plea transcript contains no indication that defendant was therein advised of the constitutional rights which were waived by his plea of guilty as required by Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969) and People v. Jaworski, 387 Mich. 21, 194 N.W.2d 868 (1972) and that, therefore, the plea-based conviction was improperly considered by the court as part of the basis for his conviction as a habitual offender under the provisions of M.C.L.A. § 769.12; M.S.A. § 28.1084.
On January 21, 1966, defendant pleaded guilty in King County Superior Court in the State of Washington to burglary in the second degree. Defendant contends that this plea did not comply with guilty plea standards as set forth by either the Supreme Court of the State of Washington or the Supreme Court of the State of Michigan and that, therefore, this pleabased conviction was also improperly considered as a basis for his conviction as a habitual offender.
On September 26, 1966, defendant pleaded guilty in Stutsman District Court in the State of North Dakota to armed assault with intent to rob. Defendant claims that the transcript of that plea contains no factual basis for the plea which was required under GCR 1963, 785, which was effective in Michigan at the time of the plea and that, therefore, this plea-based conviction should not have been considered as a basis for his conviction as a habitual offender.
As authority for these arguments, defendant relies on the decisions of the United States Supreme Court in United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972) and Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967).
In Tucker, defendant was convicted in United States District Court for the Northern District of California of armed bank robbery. At the sentencing proceedings following conviction the court gave explicit attention to Tucker's three previous felony convictions and imposed the maximum term authorized by the applicable federal statute. Several years later it was conclusively determined in a collateral proceeding in a California trial court that two of the three prior convictions which the Federal district court had explicitly considered in imposing the maximum sentence were constitutionally invalid by reason of the fact that Tucker had not been advised of his right to assistance of counsel and did not understandingly waive assistance of counsel. Tucker moved to set aside the sentence in the same Federal district court which had imposed the maximum. The motion was denied by the Federal court and on appeal to the United States Court of Appeals, that Court remanded the cause for resentencing without consideration of the invalid prior convictions. The United States Supreme Court affirmed upon a holding that:
'We agree with the Court of Appeals that the answer to this question must be 'yes.' For if the trial judge in 1953 had been aware of the constitutional infirmity of two of the previous convictions, the factual circumstances of the respondent's background would have appeared in a dramatically different light at the sentencing proceeding. Instead of confronting a defendant who had been legally convicted of three previous felonies, the judge would then have been dealing with a man who, beginning at age 17, had been unconstitutionally imprisoned for more than ten years, including five and one-half years on a chain gang. We cannot agree with the Government that a re-evaluation of the respondent's sentence by the District Court even at this late date will be either 'artificial' or 'unrealistic.'
'The Gideon case established an unequivocal rule 'making it unconstitutional to try a person for a felony in a state court unless he had a lawyer or had validly waived one.' Burgett v. Texas, 389 U.S. 109, 114, 88 S.Ct. 258, 261, 19 L.Ed.2d 319, 324. In Burgett we said that '(t)o permit a conviction obtained in violation of Gideon v. Wainwright to be used against a person either to support guilt or enhance punishment for another offense * * * is to erode the principle of that case.' Id., at 115, 88 S.Ct. at 262, 19 L.Ed.2d at 324. Erosion of the Gideon principle can be prevented here only by affirming the judgment of the Court of Appeals remanding this case to the trial court for reconsideration of the respondent's sentence.
'The judgment is affirmed.'
There are a number of disinctions between Tucker...
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