People v. Hobdy

• Decision Date: 08 May 1968
• Docket Number: No. 41,41
• Citation: 158 N.W.2d 392,380 Mich. 686
• Parties: The PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Phillip HOBDY, Defendant-Appellee.
• Court: Michigan Supreme Court

Page 392

158 N.W.2d 392

380 Mich. 686

The PEOPLE of the State of Michigan, Plaintiff-Appellant, v. Phillip HOBDY, Defendant-Appellee.

No. 41.

Supreme Court of Michigan.

May 8, 1968.

John T. Hammond, Pros. Atty., by Harry J. Creager, Asst. Pros. Atty., St. Joseph, for plaintiff-appellant.

Thomas H. Adams, Jr., Benton Harbor, for respondent-appellee.

Before the Entire Bench.

O'HARA, Justice.

This is an appeal on leave granted from an order of the Court of Appeals denying an application for rehearing sought by the people. The opinion and order upon which rehearing was asked vacated defendant appellee's plea of guilty and remanded the case to the circuit court for trial. ¹

The plea of guilty was entered July 7, 1961. The Court of Appeals based its opinion solely upon GCR 1965, 785.3, as interpreted by In re Palmer, 371 Mich. 656, 124 N.W.2d 773. The Court said:

'The Supreme Court of Michigan interpreted the above court rule in the case of In re Palmer (1963), 371 Mich. 656, on page 666, 124 N.W.2d 773, on page 778, and stated:

"The import of Gideon is that Any felony prosecution in which an accused is not represented by counsel, And does not expressly waive benefit of counsel, does not fulfill the requirements of a 'fair trial' and thus is a denial of due process. (Emphasis partially supplied).'

'The defendant did not Expressly waive his right to counsel. The defendant's plea of guilty is hereby set aside and the case is remanded for trial.' (Emphasis by Court of Appeals.)

Since the Court of Appeals based its decision squarely on the issue of Express waiver, we address ourselves only to that issue.

In re Palmer, supra, is not precedential authority for anything. It stands only for the vacation of That appellant's plea of guilty in That case. ² The opinion was signed unreservedly only by Justices Kavanagh and Souris. Five Justices concurred only in the result. I wrote separately on the then unsettled question of the retroactivity of certain Federal Supreme Court decisions. ³

The statement appearing in Palmer 371 Mich. p. 666, 124 N.W.2d 773 that Gideon v. Wainright, supra, requires that there be an express waiver of counsel in order to comport with due process is not the majority voice of this Court. Nor am I able to find that express waiver of counsel is required by any United States Supreme Court decision. The Court of Appeals was in error in holding that GCR 1963, 785.3 as interpreted by Palmer or Gideon required such an express waiver.

It is not contended by defendant that the circuit judge did not advise him of his Right to retained counsel or to counsel at public expense if he were indigent. His only complaint is that he did not Expressly waive the right. Outside of the nonprecedential Palmer, we find no reference to an express waiver of counsel in any Michigan or Federal case cited or discussed.

The order of the Court of Appeals vacating the plea of guilty is reversed. The judgment of conviction entered on defendant's plea of guilty in the circuit court is affirmed.

DETHMERS, C.J., and KELLY, BLACK and BRENNAN, JJ., concurred with O'HARA, J.

ADAMS, Justice.

While it is highly desirable that there be an express waiver of any constitutional right in a criminal case, I agree with Justice O'Hara that the test is not Express waiver. It is possible that under some circumstances an express waiver would not meet the constitutional test that a defendant 'intelligently and understandingly' waive the assistance of counsel. Carnley v. Cochran (1962), 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70. See, also, my opinion in People v. Stearns, Mich., 158 N.W.2d 409.

Upon arraignment, the following occurred:

'THE COURT: Mr. Hobdy, that document you hold in your hands is a copy of the information filed against you charging you with breaking and entering in the night time with intent to commit a larceny. Do you understand the charge?

'RESPONDENT: Yes, I do.

'THE COURT: I must advise you that under that offense the maximum penalty is fifteen years in prison. Do you understand that?

'RESPONDENT: Yes, sir.

'THE COURT: You are entitled to a jury trial under this charge if you want one and entitled to be represented by a lawyer, a lawyer of your own choosing if you can retain one, or counsel appointed by the court for you if you want counsel and can't afford a lawyer and make a proper showing. Do you understand those rights?

'RESPONDENT: Yes, I do.

'THE COURT: Right to a jury trial and right to a lawyer. Also, you have a right, of course, to plead guilty or not guilty, as the case may be, to this charge. With that explanation of your rights, what do you wish to do?

'RESPONDENT: I wish to plead not guilty--I mean guilty, sir.

'THE COURT: Do I understand that you are pleading guilty because you know you did on the 28th day of June, 1961, Township of Baroda, this county, this state, commit this offense of breaking and entering in the night time with intent to commit a larceny?

'RESPONDENT: Yes, sir.

'THE COURT: You know that it will be necessary for the court to impose a penalty somewhat within the limitations I have stated?

'RESPONDENT: Yes, sir.

'THE COURT: Has anyone used any force or fraud or tricks or intimidations of any kind to get you to plead guilty?

'RESPONDENT: No.

'THE COURT: Has anyone made any promises or held out any inducements to get you to plead guilty?

'RESPONDENT: No.

'THE COURT: Do I understand that you are pleading guilty because you know you are guilty and know you will have to be punished for the offense?

'RESPONDENT: That's right.

'THE COURT: How old are you?

'RESPONDENT: 22.

'THE COURT: Under the circumstances, the court finds the plea to be freely, voluntarily and understandingly offered; and therefore it is received.'

When the judge asked, 'With that explanation of your rights, what do you wish to do?', the defendant had an opportunity to request counsel. Upon this record, there is nothing to show defendant did not comprehend such right. I would hold that his failure to request counsel, in these circumstances, constituted waiver of same.

I vote to reverse the Court of Appeals and affirm the judgment of conviction entered on defendant's plea of guilty in the circuit court.

SOURIS, Justice (for affirmance).

The proceedings at arraignment on the information in this case are strikingly similar to those disclosed by the record in People v. Parshay (1967), 379 Mich. 7, 148 N.W.2d 869. This defendant, like Parshay, was required to plead after being advised of his right to the assistance of counsel and to the appointment of counsel in his behalf if too poor to retain counsel, but he was not given an opportunity to request such assistance from retained or appointed counsel; nor does the record disclose an express waiver of counsel. Compare the record of arraignment proceedings quoted in Mr. Justice ADAMS' opinion...