People v. Lange

• Decision Date: 09 April 1981
• Docket Number: Docket No. 50649
• Citation: 306 N.W.2d 514,105 Mich.App. 263
• Parties: PEOPLE of The State of Michigan, Plaintiff-Appellee, v. Lloyd Neil LANGE, Defendant-Appellant. 105 Mich.App. 263, 306 N.W.2d 514
• Court: Court of Appeal of Michigan — District of US

Page 514

306 N.W.2d 514

PEOPLE of The State of Michigan, Plaintiff-Appellee, v. Lloyd Neil LANGE, Defendant-Appellant.

Docket No. 50649.

105 Mich.App. 263, 306 N.W.2d 514

Court of Appeals of Michigan.

April 9, 1981.

Released for Publication June 16, 1981.

[105 MICHAPP 264] R. Timothy Kohler, Romeo, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., George N. Parris, Pros. Atty., Alice F. Sage, Asst. Pros. Atty., for plaintiff-appellee.

Before V. J. BRENNAN, P. J., and BRONSON and BASHARA, JJ.

[105 MICHAPP 265] BRONSON, Judge.

On September 8, 1979, defendant was arrested by Roseville police officers in the parking lot of a 7-11 store. Defendant was wanted in connection with a shooting incident which occurred earlier that day. Following a patdown search, the officers found a .25-caliber pistol secreted in defendant's jacket. As a consequence, he was charged with carrying a concealed weapon (CCW), contrary to M.C.L. § 750.227; M.S.A. § 28.424.

Defendant waived preliminary examination. On November 28, 1979, the date set for trial, defendant pled guilty to the charge. On December 14, 1979, he was sentenced to a term of imprisonment of from three to five years. Defendant now appeals as of right.

Defendant's first contention is that he was denied his right to due process of law because when the trial court took his plea of guilty under advisement it failed to inform him that the guilty plea could be withdrawn prior to its acceptance. GCR 1963, 785.7(6) provides:

"Setting Aside the Plea. The court may take the plea under advisement.

"(a) Until the court accepts the plea on the record, the defendant may withdraw it as a matter of right.

"(b) After the court accepts the plea:

"(i) the court may set it aside on defendant's motion; or

"(ii) the court may sua sponte set it aside, but only with defendant's consent."

Whether the court's failure to advise defendant of his right to withdraw his guilty plea prior to acceptance entitles him to reversal of his conviction has not been addressed in any previous published opinion of this Court. We hold, however, [105 MICHAPP 266] that the trial court need not advise defendant of this right.

In Guilty Plea Cases, 395 Mich. 96, 235 N.W.2d 132 (1975), the Michigan Supreme Court wrote an extensive opinion concerning what rights a trial court must advise a defendant he possesses prior to acceptance of his guilty plea. At the same time, the Supreme Court completely revised GCR 1963, 785.7. GCR 1963, 785.7(1) through (4) now imposes various duties on the trial court, including the duty to inform defendants of many significant rights which a plea waives, prior to acceptance of the tendered plea. However, GCR 1963, 785.7(6), contains no directory language. It imposes no duty on the court to inform a defendant of his right to withdraw his plea prior to acceptance. Instead, it merely establishes for defendants a right of withdrawal.

Under the doctrine of expressio unius est exclusio alterius, express mention in a statute of one thing implies exclusion of similar things. Marshall v. Wabash R. Co., 201 Mich. 167, 172, 167 N.W. 19 (1918); Chesapeake & O. R. Co. v. Public Service Comm., 59 Mich.App. 88, 100, 228 N.W.2d 843 (1975), lv. den. 394 Mich. 818 (1975); Detroit v. Muzzin & Vincenti, Inc., 74 Mich.App. 634, 639, 254 N.W.2d 599 (1977), lv. den. 400 Mich. 858 (1977). While doctrines of statutory construction are normally applied to effect legislative intent, to the extent that they are helpful in determining the Supreme Court's intent in promulgating rules of practice and procedure, said doctrines are equally useful. Indeed, doctrines of construction are far more likely to truly advance the Supreme Court's, as opposed to the Legislature's, intention in adopting the rules and statutes within their respective powers. While it is presumed that the Legislature [105 MICHAPP 267] knows the principles of statutory construction, People v. Hall, 391 Mich. 175, 190, 215 N.W.2d 166 (1974), this presumption is often a mere legal fiction. However, there can be no doubt that the Supreme Court is truly cognizant of these doctrines.

In the instant case, the court rule under consideration imposes many mandatory duties on trial judges relative to what information they must impart to a defendant before accepting his plea. However, the portion of the rule concerning a defendant's right to withdraw his plea prior to acceptance is not expressly enumerated as one of the particulars of which a defendant must be informed.

Moreover, there are obvious differences between the types of information which must be divulged to a defendant under GCR 1963, 785.7(1) through (4) and the right to withdraw a plea before acceptance embodied in GCR 1963, 785.7(6). The former subsections all go to the very integrity of a defendant's plea whether it is made with knowledge of its consequences, whether it is truly voluntary, and whether the defendant is actually admitting facts upon...