People v. Jaworski

• Decision Date: 29 July 1970
• Docket Number: Docket No. 8729,No. 2,2
• Citation: 181 N.W.2d 811,25 Mich.App. 540
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Paul Joseph JAWORSKI, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 811

181 N.W.2d 811

25 Mich.App. 540

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Paul Joseph JAWORSKI, Defendant-Appellant.

Docket No. 8729.

Court of Appeals of Michigan, Division No. 2.

July 29, 1970.

Released for Publication Dec. 14, 1970.

Douglas A. Chartrand, Pontiac, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Thomas G. Plunkett, Jr., Pros. Atty., for plaintiff-appellee.

Before LESINSKI, C.J., and DANHOF and SNOW, ^* JJ.

DANHOF, Judge.

The defendant was charged with breaking and entering contrary to M.C.L.A. § 750.110 (Stat.Ann.1970 Cum.Supp. § 28.305). At his arraignment on August 14, 1969 the defendant, while represented by counsel, stood mute, and the court then entered a plea of not guilty, as required by statute, M.C.L.A. § 767.37 (Stat.Ann.1954 Rev. § 28.977).

On September 8, 1969 the people moved to add a second count of attempted breaking and entering, M.C.L.A. § 750.92 (Stat.Ann.1962 Rev. § 28.287). That motion was allowed and the defendant then pled guilty to the added count. On September 29, 1969 the defendant was sentenced to a term of 4 to 5 years in prison.

The only question on appeal is whether the trial court complied with the constitutional requirements in accepting a plea as stated in the case of Boykin v. Alabama (1969), 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274.

The defendant argues that the Boykin decision requires on the record statements waiving (1) the privilege against compulsory self-incrimination, (2) the right to trial by jury, and (3) the right to confront one's accusers. The record contains statements waiving the last two constitutional rights, but there is no statement specifically waiving the privilege against compulsory self-incrimination.

It is clear from the testimony at the time the guilty plea was taken ¹, and from the written plea of guilty signed both by defendant and his attorney ², that there was full compliance by the trial judge with the statutory and court rule requirements relative to accepting pleas of guilty, C.L.1948, § 768.35 (Stat.Ann.1954 Rev. § 28.1058) ³ and GCR 1963, 785.3 ⁴. Recent decisions of the Michigan Supreme Court in People v Hobdy (1968), 380 Mich. 686, 158 N.W.2d 392, People v. Dunn (1968), 380 Mich. 693, 158 N.W.2d 404, People v. Stearns (1968), 380 Mich. 704, 158 N.W.2d 409, and People v. Winegar (1968), 380 Mich. 719, 158 N.W.2d 395, settle the validity of the trial judge's acceptance of the defendant's plea unless, as argued, the later decision in Boykin v. Alabama, Supra, requires additional interrogation by the trial judge.

This Court has previously held that Boykin does not apply retroactively. People v. Taylor (1970), 23 Mich.App. 595, 179 N.W.2d 260, People v. Butler (1970), 23 Mich.App. 643, 179 N.W.2d 215. We are now presented with a guilty plea entered approximately 3 months after Boykin was decided. We must determine what application, if any, Boykin has to Michigan criminal cases.

In Boykin a local grand jury returned 5 indictments against Boykin, a negro, for common law robbery--an offense punishable in Alabama by death. The court appointed counsel for the indigent defendant, and at the arraignment 3 days later, the defendant pleaded guilty to all 5 indictments. So far as the record showed, the judge had not asked any questions of Boykin concerning his plea and the defendant did not address the court. Justice Douglas, writing for the majority said 395 U.S. p. 242, 89 S.Ct. p. 1711:

'It was error, plain on the face of the record, for the trial judge to accept petitioner's guilty plea Without an affirmative showing that it was intelligent and voluntary.' (Emphasis added)

After citing Carnley v. Cochran (1962), 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70, for the holding that

"Presuming waiver from a silent record is impermissible,"

the Court stated, 395 U.S. p. 242, 89 S.Ct. p. 1712:

'We think that the same standard must must be applied to determining whether a guilty plea is Voluntarily made.' (Emphasis added)

The Boykin opinion lists three federal constitutional rights involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. They are the privilege against compulsory self-incrimination, the right to trial by jury, and the right to confront one's accusers. The court then said, p. 243, 89 S.Ct. p. 1712:

'We cannot presume a waiver of these three important federal rights from a Silent record.' (Emphasis added)

The concluding sentence of Justice Douglas' opinion reads, p. 244, 89 S.Ct. p. 1713:

'The three dissenting justices in the Alabama Supreme Court stated the law accurately when they concluded that there was reversible error 'because the record does not disclose that the defendant Voluntarily and understandingly entered his pleas of guilty." (Emphasis added)

Boykin is devoid of any specific language stating that in order to have a valid waiver of the three federal constitutional rights involved when a plea of guilty is entered the three rights must be specifically enumerated and specifically waived. If the United States Supreme Court had intended such a holding, it would have been easy for the court to have so stated. Rather, the court emphasized the silent record ⁵ and thus the lack of any affirmative showing that the defendant voluntarily and understandingly entered his guilty plea.

We think the purpose of the enumeration in Boykin of the three federal constitutional rights which are waived by the valid entry of a guilty plea was to explain why it is necessary to have a record which affirmatively shows that the defendant did voluntarily and understandingly enter his guilty plea. These three rights are so important that the United States Supreme Court would not presume from a silent record that ignorance, incomprehension, coercion, terror, inducements, subtle or blatant threats were not involved. Boykin v. Alabama, Supra, pp. 242, 243, 89 S.Ct. 1709.

This construction of the Boykin decision is supported by the opinion of Michigan Chief Justice T. E. Brennan in People v. Taylor (1970), 383 Mich. 338, 175 N.W.2d 715. He wrote pp. 355, 356, 175 N.W.2d p. 723:

'The Court further enumerates the privilege against compulsory self-incrimination, the right to trial by jury, and the right to confront one's accusers.

'The Court did not say, as some have suggested, that explicit and expressed waivers must be taken upon each of these constitutional rights before the plea can be accepted.

'The holding is more properly, that these rights are waived by the act of entering the guilty plea, and it is for this reason that a record must be made upon the question of voluntariness.'

The Chief Justice continued his discussion of Boykin pp. 356, 357, 175 N.W.2d p. 723:

'This understanding of the case is highlighted by the dissent. The Harlan opinion criticizes the majority on the ground that its holding '* * * fastens upon the States, as a matter of federal constitutional law, the rigid prophylactic requirements of Rule 11 of the Federal Rules of Criminal Procedure.'

'The dissent, in effect, accuses the majority of applying McCarthy v. United States (1969), 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 to the states retroactively, while applying it to the Federal courts prospectively only, via Halliday v. United States (1969), 394 U.S. 831, 89 S.Ct. 1498, 23 L.Ed.2d 16.

'The McCarthy decision held that a failure to comply with Federal Rule 11, by a failure to 'address the defendant personally' was reversible error.

'Mr. Chief Justice Warren, writing in McCarthy, directed attention to the 1966 amendment of Rule 11, which now provides:

"A defendant may plead not guilty, guilty or, with the consent of the court, Nolo contendere. The court may refuse to accept a plea of guilty, and shall not accept Such plea Or a plea of nolo contendere without first Addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge And the consequence of the plea. If a defendant refuses to plead or if the court refuses to accept a plea of guilty or if a defendant corporation fails to appear the court shall enter a plea of not guilty. The court shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea. (As amended Feb. 28, 1966, eff July 1, 1966)

'By footnote, the Chief Justice referred to the notes of the Advisory Committee on Criminal Rules, which were published in connection with the 1966 amendment. These notes are of particular interest to those of us who labor in the Michigan judicial vineyards. They say:

"For a similar requirement see Stat.Ann. § 28.1058; Court Rule No 35A (1945); In re Valle (1961), 364 Mich. 471, 110 N.W.2d 673; People v. Barrows (1959), 358 Mich. 267, 99 N.W.2d 347; People v. Bumpus (1959), 355 Mich 374, 94 N.W.2d 854; People v. Coates (1953), 337 Mich. 56, 59 N.W.2d 83."

'No other state statutes, state court rules, or state court decisions are cited in the Committee notes attending the 1966 amendment of Federal Rule 11.

'In all modesty, we conclude that the 1966 amendment of Federal Rule 11 was designed to bring Federal Court practice up to the standard of our Michigan practice; that the McCarthy case was in furtherance of that object and that the Boykin case, even when read through the piercing eyes of the dissent, merely stands for the proposition that our sister state of Alabama is being federally mandated to comply with long-standing Michigan practice.

'Under none of our Michigan holdings would Boykins' no-transcript, no-colloquy, no-advice plea have been held valid.'

We agree with that analysis and interpretation of Boykin. However, since only Justice Kelly joined in signing the opinion, although Justices Black and Dethmers did concur in reversal on the basis that Boykin was not to apply retroactively, we cannot cite the Chief Justice's opinion as controlling authority.

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