People v. Hoffman
| Citation | 382 Mich. 66,168 N.W.2d 229 |
| Decision Date | 02 June 1969 |
| Docket Number | No. 19,19 |
| Parties | , 36 A.L.R.3d 1199 The PEOPLE of the State of Michigan, Plaintiff and Appellee, v. Leo W. HOFFMAN, Defendant and Appellant. |
| Court | Supreme Court of Michigan |
George A. Greig, Pros. Atty., Allegan County, James S. Ainsworth, Chief Asst. Pros. Atty., Allegan, for plaintiff-appellee.
Leo W. Hoffman, Allegan, in pro. per.
Before the Entire Bench.
BLACK, Justice (for reversal).
As this originally simple and altogether local proceeding came to appellate decision (9 Mich.App. 342, 155 N.W.2d 708), both its nature and issue as framed, tried and decided in circuit were subjected errantly to the influence of Federal law attending a conjectured but quite non-existent Federal question. Now, and until this Court restores to its pristine posture what in the Court of Appeals became a curiously newblown Federal Case, no thought of affirmance may be entertained without offense to yet another constitutional right, that of a respondent charged with and convicted of contempt of a Michigan court to have his conviction reviewed without the application Ex post facto of the rule of a Federal decision which, aside from its irrelation to such a proceeding, was handed down some 15 months after that respondent's conviction was adjudged in circuit and he had timely claimed right of appeal. 1
Here we review for error no criminal prosecution. No defendant charged with or convicted of crime stood before either of the courts below. None stands here. No Federal constitutional right, advanced on behalf either of the accusing judge or the respondent attorney, is at stake. The rights of no accused person or of any convict are called into play by him, or on his behalf. Our forthcoming judgment will determine no issue arising under the Constitution of the United States, or under any act of Congress, or treaties made, with respect to which the Supreme Court is given supreme interpretive authority by the Sixth Article. That judgment will simply determine whether, upon a record made in a circuit court of Michigan, before a circuit judge of Michigan, a member of the Michigan bar was properly judged--under Michigan law--guilty of contempt of that same court of Michigan. 2
These beginning postulates suggest that the proceeding under review should be ordered from exalted heights down to the comparatively pastoral legal environment of Allegan county. There the accusing judge, all credit to him, undertook only to determine whether the respondent attorney was, by the gauge of exclusively applicable Michigan law, guilty of contempt of one of our circuit courts for 1 simply assigned reason, reflected this way in the judgment entered in circuit and brought now to review:
'1. That on May 27, 1965, an order was made by this court appointing Leo W. Hoffman, a duly licensed attorney at law, appellant counsel in the matter of The People of the State of Michigan vs. Ernest B. Sandefur, criminal file No. 4068, Allegan county circuit court.
'2. That the said Leo W. Hoffman, well knowing the terms of the said order, did, in a report filed in this court, refuse to prepare and file an appeal for the said Ernest B. Sandefur, giving as his reason therefor, that he was unable, after careful examination, to find any ground for an appeal.
Like all judges of the courts of the States, Judge Smith knew naught then of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (May 8, 1967). That case had not as yet been Federally conceived. The conception did not take place until certiorari was granted April 4, 1966 (383 U.S. 966, 86 S.Ct. 1278, 16 L.Ed.2d 307).
First: Judged exclusively by the record made by and before Judge Smith, was the respondent contemptuous?
By way of purposeful preamble the endorsers of this opinion approach consideration of the recorded facts exactly as they were developed by and made to appear before Judge Smith between June of 1962 and February of 1966; uncolored by any subsequently written judicial opinion. Declared another way, we consider the record as if this Court stood judicially in Judge Smith's shoes on and prior to February of 1966, with no opinion of Anders v. California and no opinion of Mr. Hoffman's appeal to the Court of Appeals known to us, and with no issue framed and submitted for decision save that which the judge decided per quotation above. As we perceive, this is the sure way to avoid the afterwitted error of applying a respectable yet elective Federal intervenient to a not very difficult question of local law.
In June of 1962 one Ernest B. Sandefur was charged in Allegan county with first degree murder. John B. Nahan, a reputable member of the Allegan county bar, was promptly engaged to represent him. Upon Mr. Nahan's advice the defendant stood mute. A plea of not guilty was entered. Two months later the defendant appeared with counsel before the court. The following record was made:
'Mr. Andrews (Prosecuting Attorney): May it please the court, this is the matter of the People of the State of Michigan vs. Ernest B. Sandefur, File No 4068. Mr. Sandefur was before the court on the 20th day of June, 1962, with his counsel, Mr. Nahan, of the city of Allegan, and stood mute on a charge of homicide with had been filed on the 5th day of June. My understanding is Mr. Sandefur has further consulted with his counsel, Mr. Nahan, and wishes to inform the court that there is a change in the plea in this matter. Is that right, Mr. Nahan?
'Mr. Nahan: Yes, sir. I advised Mr. Sandefur and he has agreed to change his plea from mute to a plea of guilty to the general charge of homicide, with the request that the court allow respondent to offer evidence as to the degree of homicide, and then after hearing such evidence determine the degree.
'The Court: Is that your wish, Mr. Sandefur?
'The Respondent: Yes, sir, it is okay with me, sir.
'The Court: Mr. Nahan has been your attorney for the last two months or so?
'The Respondent: Yes.
'The Court: His services have been satisfactory?
'The Respondent: Satisfactory to me, sir, fine.
'The Court: Plea of not guilty heretofore entered by the court may be withdrawn, plea of guilty to the open charge of homicide will be accepted by the court. There will be no bond. Mr. Nahan and the court has discussed the matter of trial date to determine degree of guilt in this matter and he has suggested a month from today. Is that satisfactory to you, Mr. Andrews?
'Mr. Andrews: Satisfactory to the people, yes, your Honor.
'The Court: That is the 20th day of September 9 o'clock.
'Mr. Andrews: I would be perfectly willing to make available to counsel my files in the matter so we might expedite this hearing.
'The Court: That will be appreciated.
'Mr. Nahan: Thank you, your Honor.'
A little over a month later the court conducted an unusually thorough hearing to determine the degree of guilt. It is unnecessary that the hearing be rehashed here beyond comment that the court and all counsel left no legal stone unturned, no known witness unsworn, no argument for a reduction of degree left silent. The result, cetified to us by Judge Smith, was this:
'On October 9, 1962, the court found:
'The court finds there is an absence of that degree of premeditation which would characterize the act as murder in the first degree and, likewise, an absence of such provocation or justification that would reduce the homicide to manslaughter.
'We have here a killing done in anger with sufficient time for a cooling off with no justification for self-defense, and in the opinion of the court, those circumstances dictate a finding of murder in the second degree and the court so finds.'
'The court then asked the respondent, Ernest Sandefur, if he knew of any reason why the court could not lawfully pass judgment, and the respondent replied:
'No, sir.
'The Court: And sentence in your matter today?
'The Respondent: No, sir.
'The Court: Is there anything you would like to say to the court?
'The Respondent: I don't know of anything, sir.
'The Court: Mr. Nahan?
'Mr. Nahan: No, sir.
'The Court: It is the sentence and judgment of this court that Ernest B. Sandefur be committed to the jurisdiction of the Michigan Corrections Department and confined at Michigan Southern Prison at Jackson for a period not less than twenty nor more than forty years. The court recommends the minimum.
'Mr. Nahan: Your Honor, does such sentence take into consideration the time spent in the Allegan county jail?
It was not claimed then or in the course of post-conviction proceedings (mentioned later) that Mr. Nahan did not act faithfully and competently for the defendant. Indeed, the full record of the statutory proceeding (C.L.1948, § 750.318), conducted by the court to determine the degree of Mr. Sandefur's guilt, shows that Mr. Nahan went to uncommon lengths in effort to reduce the charge against Mr. Sandefur to voluntary manslaughter; a goal insurmountable in view of eyewitness proof that Mr. Sandefur, having shot at and wounded his son in the home, pursued the fleeing son down the street, meanwhile firing his Colt .45 three times more with fatal effect. Mr. Nahan's uphill work did at least accomplish for Mr. Sandefur a conviction of second rather than first degree murder, along with recommendation of the minimal term of sentence as fixed by the court, that is, 20 years.
In May of 1965 Mr. Sandefur wrote to 'the Allegan county circuit court,' alleging indigency and requesting:
'Will you please appoint me an attorney, I want to appeal my case, and furnish all records and transcript at public expense.'
May 27, 1965 the court appointed ...
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