People v. Kedo

• Decision Date: 26 March 1981
• Docket Number: Docket No. 52051
• Citation: 108 Mich.App. 310,310 N.W.2d 224
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jeffrey Lynn KEDO, Defendant-Appellant. 108 Mich.App. 310, 310 N.W.2d 224
• Court: Court of Appeal of Michigan — District of US

Page 224

310 N.W.2d 224

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jeffrey Lynn KEDO, Defendant-Appellant.

Docket No. 52051.

108 Mich.App. 310, 310 N.W.2d 224

Court of Appeals of Michigan.

March 26, 1981.

Released for Publication Sept. 28, 1981.

[108 MICHAPP 312] Conrad J. Sindt, Prosecuting Atty., Battle Creek, for People of michigan.

Derrick A. Carter, State App. Defender, Detroit, for Jeffrey Lynn Kedo.

Before RILEY, P. J., and HOLBROOK, and BREIGHNER, ^* JJ.

PER CURIAM.

In February, 1979, defendant was convicted on his pleas of guilty to breaking and entering with intent to commit larceny, contrary to M.C.L. § 750.110; M.S.A. § 28.305, and to "joyriding", contrary to M.C.L. § 750.414; M.S.A. § 28.646. He was subsequently sentenced to prison terms of from 5 to 10 years on the breaking and entering conviction, and from 16 to 24 months on the joyriding conviction, the sentences to run concurrently.

Defendant appealed his convictions to this Court and on February 27, 1980, in an unpublished per curiam opinion (docket nos. 44541, 46986), a panel of this Court ruled that the proffered plea to the breaking and entering charge lacked a sufficient factual basis since there was no evidence of any "breaking". The Court held that defendant's statement at the plea-taking proceedings, that he and [108 MICHAPP 313] an accomplice had gone to a school between 10 p. m. and midnight and "went in the door on the left-hand side and went up to the office, got some money", was insufficient to establish a breaking or to permit the inculpatory inference of a breaking. Following the procedure outlined by the Michigan Supreme Court in Guilty Plea Cases, 395 Mich. 96, 129, 235 N.W.2d 132 (1975), this Court remanded the matter to the trial court in order to allow the prosecution to attempt to establish the missing element. This Court affirmed the joyriding conviction, holding that there was a sufficient factual basis to sustain the plea.

On May 2, 1980, further proceedings were conducted in the trial court. Over defendant's objection, the prosecutor was permitted to examine a janitor employed by the school that had been broken into. The janitor testified that he was in charge of locking the building at night and that, on the night of the break-in, he had in fact secured all of the doors. Satisfied that the missing element had been established by the witness's testimony, the court affirmed defendant's conviction. The defendant did not testify at the hearing. Defendant now appeals as of right.

Defendant asserts that the factual basis for a guilty plea must come exclusively from the defendant, and that, if he cannot provide it, in full or in part, he must be afforded a full adversarial trial.

The starting point of our analysis is the directive issued by the Supreme Court in Guilty Plea Cases, supra, that:

"On remand the prosecutor shall be given an opportunity to establish the missing element. If he is able to do so and there is no contrary evidence, the judgment of conviction shall be affirmed. If the prosecutor is unable to establish the missing element, the judgment [108 MICHAPP 314] of conviction shall be set aside. If contrary evidence is produced, the matter shall be treated as a motion to withdraw the guilty plea and the court shall decide the matter in the exercise of its discretion. GCR 1963, 785.7(4)." Id., 129, 235 N.W.2d 132.

Also at issue is the applicable court rule, GCR 1963 785.7(3)(a):

"If the defendant pleads guilty, the court, by questioning him, shall establish support for a finding that he is guilty of the offense charged or the offense to which he is pleading."

Another panel of this Court was recently faced with the identical issue before us now. In People v. Brown, 96 Mich.App. 565, 293 N.W.2d 632 (1980), the Court held that, on remand to supply the missing element necessary to complete the factual basis needed for a guilty plea, the prosecutor is entitled to produce evidence independent of the defendant's own admissions where (1) an essential element or elements of the offense were neither denied nor admitted by the defendant due to oversight of the judge and prosecutor at the time of the plea and (2) the defendant substantially admitted his guilt at the initial plea hearing. Brown, supra, 572, 293 N.W.2d 632.

We believe Brown is a well-reasoned opinion and that the test it announces is both workable and constitutionally sound. Citing People v. Barrows, 358 Mich. 267, 272, 99 N.W.2d 347, 350 (1959), Brown stated that the "purpose of the requirement that the factual basis of the crime be established through direct questioning of the defendant at the time the plea is offered is to prevent acceptance of 'involuntary or induced false pleas of guilty' and 'subsequent false claims of innocence' ". Brown, [108 MICHAPP 315] supra 96 Mich.App. 572, 293 N.W.2d 632. We agree with the Brown Court's conclusion that "(t)his purpose is perverted by application of the requirement to a situation * * * where defendant has substantially admitted his guilt and then refuses to testify further or make an offer of proof at the hearing on his motion to vacate the plea". Id., 572, 293 N.W.2d 632.

The Supreme Court itself in Guilty Plea Cases recognized that upon remand the missing elements could be established apart from the defendant's own testimony. Rather than directing trial judges to query defendants as to the missing elements, the Court instead spoke in terms of the prosecutor establishing the missing elements. In addition, the Court contemplated the resolution of situations where "contrary evidence" would be produced. Clearly, the implication is that either party may produce evidence. More significantly, the Court stated that:

"Direct questioning is not an absolute * * * (w)here the judge makes a conscientious effort to establish a factual basis for a plea of guilty by direct questioning of the defendant, omissions in the record recital of the factual basis may be established in some other manner." Guilty Plea Cases, supra, 395 Mich. 134, fn. 3, 235 N.W.2d 132.

There are also pragmatic reasons for rejecting defendant's argument. As the Brown Court recognized:

"A defendant who appeals his plea-based conviction or who moves to withdraw his plea can be expected to deny the missing elements unless, out of fear of a perjury charge, he remains silent. There is nothing to be gained by his appeal or motion if he is going to admit the missing element * * *. Consequently, a hearing that is limited to further inquiry of the defendant would be a waste of time." Brown, supra, 96 Mich.App. 571-572, 293 N.W.2d 632.

[108 MICHAPP 316] As a matter of Federal constitutional law, we believe the procedure outlined in Guilty Plea Cases and interpreted in Brown, is sound. The United States Supreme Court has recognized three basic constitutional requirements which must be satisfied if a guilty plea is to be upheld. First, the plea must have been made voluntarily. Secondly, it must have been made intelligently. Finally, the record must show that the plea was made both voluntarily and intelligently. Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970).

As our Supreme Court stated in People v. Barrows, supra, the primary purpose of requiring the defendant to personally state a factual basis is to insure that his plea is voluntary. Another purpose is to satisfy the judge that the plea is a "well-considered and well-advised choice by the defendant", Guilty Plea Cases, supra, 395 Mich. 134, fn. 2, 235 N.W.2d 132, or in other words, that it is intelligently made.

By requiring the defendant to personally provide a factual basis for his plea, Michigan law therefore insures that the defendant's plea is both voluntarily and intelligently made. This is all that is constitutionally required.

It should be realized, however, that another purpose for requiring a factual basis is to make sure the defendant's plea is accurate, so that he is not overcharged. It is quite plausible that a defendant might enter a knowing and voluntary plea which is nevertheless inaccurate. Since accuracy, and indeed the requirement of a factual basis, is not part of the constitutional equation, it follows that the trial judge should have greater latitude in providing a factual basis.

The constitutional requirements of a voluntary and intelligent plea are met by Brown, since before[108 MICHAPP 317] a case can be remanded to fill in a missing element, the appellate court must be satisfied that the defendant "substantially admitted his guilt" and that the omissions were essentially a matter of inadvertence. The defendant can not be heard to complain if the prosecutor provides the missing elements on remand, since at the original plea proceeding (if Brown is satisfied) ...