People v. Killingbeck

• Decision Date: 24 September 1973
• Docket Number: No. 3,Docket No. 13242,3
• Citation: 49 Mich.App. 380,212 N.W.2d 256
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Donald R. KILLINGBECK, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 256

212 N.W.2d 256

49 Mich.App. 380

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Donald R. KILLINGBECK, Defendant-Appellant.

Docket No. 13242.

Court of Appeals of Michigan, Division No. 3.

Sept. 24, 1973.

Released for Publication Nov. 27, 1973.

C. Michael Grote, Bay City, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Ronald R. Tyler, Pros. Atty., for plaintiff-appellee.

Before R. B. BURNS, P.J., and FITZGERALD and O'HARA*, JJ.

FITZGERALD, Judge.

Defendant was charged in a two-count information with breaking and entering with intent to commit larceny ¹ and attempt to break and enter with intent to commit larceny. ² After waiving preliminary examination and prior to arraignment, defendant complied with the prosecuting attorney's request to complete a prearraignment questionnaire. Defendant stood mute as to count 1 and entered a plea of guilty as to the second count of attempted breaking and entering. Following the court's acceptance of defendant's plea of guilty, a motion for entry of nolle prosequi on count 1 was filed together with an order to that effect. Defendant was sentenced to a term of from 3 to 5 years in prison.

The trial court, apprised of defendant's decision to appeal, appointed attorney James Orford as defense counsel. However, on December 23, 1971, defendant filed a claim of appeal In propria persona.

The Iosco County Circuit Court then entered a subsequent order appointing the Appellate Defender to file a claim of appeal on behalf of defendant, to which Docket No. 13403 was assigned. Defendant then filed an In propria persona motion for postconviction review. Appointed counsel Orford filed a motion for an appeal bond together with notice of hearing and proof of service. An order for post-conviction review was entered and a hearing was scheduled for March 6, 1972.

Attorney Orford's request that he be relieved of all responsibility as defendant's attorney was granted, as was defendant's motion for appeal bond. On the same day the case was remanded for bond, this Court dismissed Docket No. 13403 and ordered the case remanded for further proceedings pursuant to defendant's postconviction review petition. Mr. Paul Dwyer was requested to serve as standby attorney during the postconviction review hearing scheduled for March 6, 1972. At the hearing, appeal bond of $10,000 was set and the proceedings with respect to postconviction review were adjourned until April 10, 1972. On this date defendant's motion for new trial was denied. It is from this denial that defendant appeals.

Defendant first contends the trial court abused its discretion in refusing to vacate defendant's guilty plea. He argues a trial should have been ordered based upon testimony at a postconviction hearing from defendant's alleged accomplices which repudiated earlier statements implicating the defendant. Testimony of the two codefendants involved which exculpated defendant is said to constitute newly discovered evidence entitling him to a new trial in accordance with People v. Clark, 363 Mich. 643, 110 N.W.2d 638 (1961). ³ We disagree. By requesting that the guilty plea be vacated on the basis of newly discovered evidence, defendant does not challenge acceptance of the plea on jurisdictional grounds, but rather seeks to raise questions relating to the merits of his conviction. The general rule states:

'The plea of guilty waives any defect not jurisdictional.' 4 Wharton's Criminal Law & Procedure, § 1901, p. 770; People v. Jury, 252 Mich. 488, 233 N.W. 389 (1930); People v. Potts, 45 Mich.App. 584, 207 N.W.2d 170 (1973).

People v. Laudermilk, 67 Cal.2d 272, 281, 61 Cal.Rptr. 644, 650--651, 431 P.2d 228, 234--235 (1967), expresses this principle in stating:

'Since a plea of guilty constitutes a conviction * * * (citations omitted) and indeed has been called 'the highest kind of conviction which the case admits' * * * (citation omitted), it has been stated as a general principle that the 'judgment entered on the plea of guilty is not appealable on the merits' and irregularities not going to the jurisdiction or legality of the proceedings will not be reviewed.' (Emphasis added.)

Defendant's attempt to vacate his plea of guilty on the basis of newly discovered evidence involves a nonjurisdictional defect and is deemed to be waived. People v. Catlin, 39 Mich.App. 106, 197 N.W.2d 137 (1972); People v. Horace, 36 Mich.App. 666, 194 N.W.2d 128 (1971); People v. Wickham, 41 Mich.App. 358, 200 N.W.2d 339 (1972).

Nor is defendant able to find support from the Court Rules as a basis for ordering a trial. GCR 1963, 527.1(1)--527.1(9) lists the grounds for which a new trial may be granted. ⁴ Examination of the cases and commentary relating to newly discovered evidence as a basis for a new trial fails to indicate that such a motion is appropriate in connection with a guilty plea. Specific reference is made to motions seeking a new trial made following trial judgments, jury trials, and trials by the court sitting without a jury. By waiving trial and entering a plea of guilty, defendant also waived the right to further consideration of the evidence pertaining to the merits of the validity of the waiver.

Defendant next argues he was not substantially informed of his constitutional privilege against self-incrimination and the right to confront his accusers. ⁵ Consequently, the plea of guilty was not understandingly made. The prosecution contends the plea record and prearraignment questionnaire reflect that defendant freely, intelligently, and understandingly waived his constitutional rights. While the trial court's remarks on the record are somewhat ambiguous, ⁶ the recitation contained in the prearraignment questionnaire adequately informed the defendant as to his rights against self-incrimination and right to confrontation. People v. Jaworski, 387 Mich. 21, 194 N.W.2d 868 (1972). Defendant was required to answer the following questions:

'Do you understand that you have a right to testify or not to testify, as you choose, at a trial?

'Do you understand that any statements or confessions previously made by you are subject to investigation by the Court as to whether they were voluntarily made?

'If not freely and voluntarily made they cannot be used on the trial. Do you feel that they were voluntarily made?

'Do you understand that at trial, witnesses would be presented and subjected to cross examination in your behalf?'

In People v. Chappell, 44 Mich.App. 204, 207, 205 N.W.2d 285, 286 (1972), this Court concluded that it is not required to specifically relate the precise wording of defendant's Jaworski rights to him. The Court stated:

'Jaworski and Boykin v. Alabama, 395 U.S. 328, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), do not require a parroted incantation of defendant's constitutional rights. What is required of the trial judge is that he convey to the defendant in a way defendant can understand, what his rights are so that he can act intelligently as concerns these rights. In this case the trial judge in plain and simple language conveyed to the defendant full information of his rights which he then...