People v. Johnson

• Decision Date: 27 July 1970
• Docket Number: Docket No. 5739,No. 1,1
• Citation: 25 Mich.App. 258,181 N.W.2d 425
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Sylvester JOHNSON, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 425

181 N.W.2d 425

25 Mich.App. 258

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Sylvester JOHNSON, Defendant-Appellant.

Docket No. 5739.

Court of Appeals of Michigan, Division No. 1.

July 27, 1970.

Leave to Appeal Denied Oct. 12, 1970.

Released for Publication Nov. 27, 1970.

Carl Levin, Arthur J. Tarnow, Legal Aid and Defender Ass'n, Detroit, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Thomas P. Smith, Asst. Pros. Atty., for appellee.

Before McGREGOR, P.J., and J. H. GILLIS and O'HARA, ^* JJ.

J. H. GILLIS, Judge.

Defendant Sylvester Johnson, together with 2 others, was charged with armed robbery, M.C.L.A. § 750.529 (Stat.Ann.1970 Cum.Supp. § 28.797), conviction of which is punishable by imprisonment for life or for any term of years. On February 14, 1968, he was convicted upon his guilty plea of crime of larceny from the person, M.C.L.A. § 750.357 (Stat.Ann.1954 Rev. § 28.589). Defendant was sentenced to serve a term of from 9 to 10 years in prison. At both the plea and sentence proceedings defendant was represented by assigned counsel. Upon defendant's petition, the court appointed present counsel for appellate review. A post-conviction motion was presented to the trial court to set aside the plea and for a new trial which was denied on January 30, 1969. Defendant appeals, alleging as error the denial of his motion to vacate the plea.

Broadly stated, the question presented is whether the trial court abused its discretion in refusing to allow defendant to withdraw his plea. When first made after conviction and sentence, a motion to withdraw a guilty plea addresses itself to the discretion of the trial court, People v. Vasquez (1942), 303 Mich. 340, 6 N.W.2d 538, and must be based upon a showing of miscarriage of justice, People v. Collins (1968), 380 Mich. 131, 156 N.W.2d 566; People v. Winegar (1968), 380 Mich. 719, 158 N.W.2d 395. It is defendant's position that his motion was predicated upon such a miscarriage for the reason that a conviction of larceny from the person was not supported by the examination of defendant taken by trial court when it accepted defendant's plea.

GCR 1963, 785.3(2), requires that if the accused pleads guilty, the court 'shall inform the accused of the nature of the accusation and the consequence of his plea.' Defendant does not contend that the trial court failed to meet these requirements; nor could he in this case. The transcript of the plea proceedings clearly indicates that defendant was informed of the charge against him ¹ and the consequence of his plea. ² Nor does defendant allege that his plea was involuntary.

GCR 1963, 785.3(2) also requires that before accepting a plea of guilty the trial judge must examine the accused for the purpose of establishing the crime and defendant's participation in its commission. People v. Barrows (1959), 358 Mich. 267 99 N.W.2d 347; see also M.C.L.A. § 768.35 (Stat.Ann.1954 Rev. § 28.1058). What is required is 'reasonable ascertainment of the truth of the plea.' People v. Barrows, Supra, [25 Mich.App. 262] 272, 99 N.W.2d 350. As this Court noted in People v. Stewart (1968), 10 Mich.App. 553, 555, 556, 157 N.W.2d 327, 328:

'(T)he trial judge * * * (must) investigate the circumstances of the offense 'and whenever said judge shall have reason to doubt the truth of such plea of guilty, it shall be his duty to vacate the same, direct a plea of not guilty to be entered and order a trial of the issue thus formed.' (Emphasis supplied.)'

And, in recent years, we have reversed several convictions based upon guilty pleas where the required examination was not conducted. See People v. Perine (1967), 7 Mich.App. 292, 151 N.W.2d 876; People v. Johnson (1967), 8 Mich.App. 204, 154 N.W.2d 16; People v. Stewart, Supra; People v. Mason (1968), 13 Mich.App. 277, 164 N.W.2d 407; People v. Combs (1968), 15 Mich.App. 450, 166 N.W.2d 509; People v. Creger (1969), 16 Mich.App. 59, 167 N.W.2d 490; People v. Moore (1970), 21 Mich.App. 126, 174 N.W.2d 922; People v. Porchia (1970), 21 Mich.App. 222, 175 N.W.2d 310. Defendant contends that we should apply the teachings of such cases, particularly People v. Mason, Supra, upon which he relies, to the facts of this case.

In Mason we concluded 13 Mich.App. at 280, 164 N.W.2d at 409:

'The failure to have established facts showing that the defendant committed the crime to which he pled guilty makes it necessary to set aside the conviction.'

Mason had been convicted upon his plea of breaking and entering in the nighttime. His testimony, however, negated an essential element of the crime. It was Mason's testimony that the entry occurred in the daytime--not at night. Likewise, in the present case defendant's testimony upon tender of his plea indicates the absence of an essential element of the crime of larceny from a person. We quote the relevant portions of the colloquy between the trial judge and defendant Johnson:

'Q. All right. On Tuesday, October 10th of 1967 did you go to the address of 12317 Sendon, in the City of Detroit, Building 503, Unit 1392?

'A. I did.

'Q. Was it in the nighttime?

'A. Yes.

'Q. About what time?

'A. 1:30 or two o'clock.

'Q. Were you in an automobile or on foot?

'A. I was in an automobile.

'Q. Did you drive it? Were you driving it?

'A. No, I wasn't.

'Q. Were there two companions with you?

'A. There was.

'Q. Now, you went there to see a Mr. Romero?

'A. Yes.

'Q. Did you know him beforehand?

'A. No, I didn't.

'Q. Did you know anything about his sexual proclivities?

'A. No sir, he told me over the phone.

'Q. Called you on the phone?

'A. Yes.

'Q. And you understood when you went there that he was a homosexual?

'A. Yes.

'Q. All right. Now, you really weren't interested in him, were you?

'A. No, I wasn't.

'Q. You were interested in getting something?

'A. Yes.

'Q. Money or other things of value?

'A. Yes.

'Q. All right. And did he let you in?

'A. He did.

'Q. Were you armed?

'A. No, I wasn't.

'Q. Was anyone in your group armed?

'A. Yes.

'Q. Was he taken into a bathroom?

'A. He was in the bathroom, standing in the bathroom door.

'Q. And while he was in there, what did you do?

'A. Took things out of his apartment.

'Q. And there are enumerated in this information, do you recall what they were?

'A. A stereo, some other merchandise in a box.

'Q. Movie camera, Polaroid Swinger camera, Kodak Instamatic camera. Does that ring a bell?

'A. Yes.

'Q. As I enumerate these?

'A. Yes.' (Emphasis supplied.)

Johnson's testimony that Romero was in the bathroom when the property was taken establishes that the larceny in this case was not larceny 'from the person,' as we have construed the statutory offense. In People v. Gould (1968), 15 Mich.App. 83, 92, 166 N.W.2d 530, 534, we held that the Michigan statute 'calls for a taking from the person * * *, I.e., it is an essential element of larceny from the person that the object be stolen from the person of another.' What is required is that the property in question actually be taken from the person of another; a taking of property from the immediate presence of the owner is insufficient. As in Gould, the taking of Romero's property in this case was clearly criminal but it was not larceny from the person.

It is thus apparent, as noted by defendant in his brief, that there is no evidence of larceny from the person in the instant case. As a result, defendant suggests that it necessarily follows that his plea should not have been accepted and he is entitled to a new trial. For reasons about to be stated, we cannot agree.

The plea proceedings, quoted Supra, indicate that the trial judge in this case did in fact 'examine the accused,' as required by GCR 1963, 785.3(2). The record here evinces a good-faith effort on the part of the trial court to investigate the circumstances of the crime and defendant's participation in the criminal episode. This case is not, therefore, one which the trial court wholly fails to conduct the required inquiry. Compare, People v. Barrows, Supra; People v. Perine, Supra; People v. Combs, Supra; People v. Moore, Supra; People v. Porchia, Supra. More importantly, the examination conducted here, although failing to establish an essential element of the crime to which defendant offered to plead guilty, permits an informed judgment that defendant Johnson was guilty of the greater offense of robbery armed. Nothing in Johnson's testimony indicated that he was in fact innocent of All charges. Compare, People v. Barrows, Supra; People v. Johnson, Supra; People v. Stewart, Supra; People v. Creger, Supra; see also Judge Levin's dissent in People v. Nelson (1969), 18 Mich.App. 177, 180, 182--183, 170 N.W.2d 846. His testimony was to the contrary.

Once, as here, the examination of the accused establishes the greater offense of armed robbery and the accused's participation in its commission, further inquiry is not required. For, at that moment, the trial court has Reasonably ascertained the truth of the plea, i.e., that 'the accused is pleading guilty because he in fact is guilty.' People v. Dunn (1968), 380 Mich. 693, 700, 158 N.W.2d 404, 407. To hold otherwise would, on the facts of this case, require record testimony inconsistent with defendant's version of the facts. Such a result would undermine rather than promote the end sought to be achieved by GCR 1963 785.3(2)--namely, truthful pleas.

We regard as insignificant the fact that Johnson's testimony negated an essential element of the crime to which he offered to plead guilty. So long as his testimony fairly established the Greater offense of armed robbery, we fail to see how Johnson is in any position to complain. Compare, People v. Mason, supra. ³ This conclusion is supported by People v. Collins, Supra.

In Collins, defendants were charged with first-degree murder. They pleaded guilty and were convicted of second-degree murder, although on the evidence...