People v. Koch

• Decision Date: 03 March 1977
• Docket Number: Docket No. 20390
• Citation: People v. Koch, 253 N.W.2d 684, 74 Mich.App. 132 (Mich. App. 1977)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ramon Leonardo KOCH, Defendant-Appellant. 74 Mich.App. 132, 253 N.W.2d 684
• Court: Court of Appeal of Michigan

Page 684

253 N.W.2d 684

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ramon Leonardo KOCH, Defendant-Appellant.

Docket No. 20390.

74 Mich.App. 132, 253 N.W.2d 684

Court of Appeals of Michigan.

March 3, 1977.

Released for Publication June 2, 1977.

[74 MICHAPP 133] James R. Neuhard, State App. Defender by Steven L. Schwartz, Asst. Defender, Detroit, for defendant-appellant.

[74 MICHAPP 132] Frank J. Kelley, Atty. Gen., Robert A. [74 MICHAPP 133] Derengoski, Sol. Gen., Frank D. Willis, Pros. Atty., Mark I. Leach, Asst. Atty. Gen., for plaintiff-appellee.

Before DANHOF, C. J., and BASHARA, and MAHER, JJ.

PER CURIAM.

Defendant was convicted on his plea of guilty to the charge of receiving and concealing stolen property, contrary to M.C.L.A. § 750.535; M.S.A. § 28.803. He was sentenced to prison and appeals by right.

Defendant's first claim on appeal was decided adversely to him in People v. Milton, 393 Mich. 234, 224 N.W.2d 266 (1974).

Next, defendant challenges the use of two prior convictions listed in the presentence report for purposes of imposing sentence under the holdings of the United States Supreme Court in United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), and the Michigan Supreme Court in People v. Moore, 391 Mich. 426, 216 N.W.2d 770 (1974), claiming that he was not informed of his right to, nor provided with, assistance of counsel when the two convictions in question were obtained. At the sentencing defense counsel informed the judge that although he had seen the lengthy presentence report he had not had time to review it with his client to determine the accuracy of the list of prior convictions noted therein and "whether or not all of the procedural safeguards were provided". This prompted the sentencing judge to inquire into the prior convictions and defendant acknowledged a total of seven, including [74 MICHAPP 134] six felonies, whereupon the judge proceeded to impose sentence.

After the sentencing defendant obtained an order from this Court directing the sentencing judge to conduct a Tucker hearing to inquire into the validity of two of the prior convictions and determine whether resentencing was necessary. At the close of the Tucker hearing the trial judge ruled that one of the convictions was validly obtained, that the other conviction had not been considered in imposing sentence, and that therefore resentencing was unnecessary. Defendant now contends that the trial judge's determinations at the Tucker hearing were erroneous, and that resentencing is required under Tucker and Moore. We will consider each conviction separately.

With regard to the first, a Michigan breaking and entering conviction, the sentencing judge found at the Tucker hearing that defendant had validly waived his right to assistance of counsel. ¹ This finding was based upon the affidavit of Kalamazoo County Circuit Judge Raymond W. Fox, who presided at defendant's arraignments on the breaking and entering charge in July of 1963. The affidavit states that the inside cover of the court file contained Judge Fox's handwritten notes, which read as follows: (a) "July 22, 1963 Information read Wants no attorney, guilty refused." (b) "July 29, 1963 Amended Information read Wants no attorney, Plea: Guilty 2nd Count Accepted [74 MICHAPP 135] Bail, $1,000.00." The obvious inference from these notations is that defendant was informed of his right to counsel, but declined to exercise that right, and we cannot say that the sentencing judge's finding at the Tucker hearing that defendant waived his right to counsel was erroneous. Although Judge Fox's affidavit is not a "photocop(y) of records establishing the constitutional validity of the prior conviction", Moore, supra at 441, 216 N.W.2d at 778, we do not read Moore to say that a judge's affidavit, based on notations written on court records in his own hand, may not be used to establish the constitutional validity of the prior conviction. When a judge, acting in his official capacity as a member of the judiciary, executes a sworn affidavit based upon notations in his own handwriting contained in the court record, such an affidavit is the functional equivalent of the record itself.

Defendant also claims that the sentencing judge erred in considering his 1962 Idaho vagrancy conviction. Since the Idaho authorities did not respond to defendant's request for copies of the records of the sentencing court within the reasonable time indicated in Moore, supra at 441, 216 N.W.2d 770, we are constrained to agree with defendant that the prosecutor failed to carry the burden that then fell to him of establishing the constitutional validity of the conviction. This does not end our inquiry, however. Under Moore, supra, defendant merely met the procedural requirements that must be satisfied before a defendant is entitled to a Tucker hearing by presenting evidence that the Idaho authorities had failed to respond to his request for records. In support of his claim that resentencing is required, however, defendant cites only the following exchange during the sentencing:

[74 MICHAPP 136] "THE COURT: And in October of 1962 at Hillview, Idaho, you were convicted of vagrancy?

"DEFENDANT: Yes, sir.

"THE COURT: I didn't know they did that any more.

"DEFENDANT:...