People v. Martinez

• Decision Date: 06 May 1983
• Docket Number: Docket No. 63485
• Citation: 333 N.W.2d 199,123 Mich.App. 145
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Delores MARTINEZ, Defendant-Appellant. 123 Mich.App. 145, 333 N.W.2d 199
• Court: Court of Appeal of Michigan — District of US

Page 199

333 N.W.2d 199

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Delores MARTINEZ, Defendant-Appellant.

Docket No. 63485.

123 Mich.App. 145, 333 N.W.2d 199

Court of Appeals of Michigan.

Submitted Dec. 16, 1982.

Decided Feb. 9, 1983.

Released for Publication May 6, 1983.

[123 MICHAPP 146] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William L. Cahalan, Pros. Atty., Edward Reilly Wilson, Deputy Chief, Asst. Pros. Atty., and Janice M. Joyce Bartee, Asst. Pros. Atty., for the people.

State Appellate Defender by Sheila N. Robertson, Detroit, for defendant-appellant on appeal.

Before DANHOF, C.J., and J.H. GILLIS and DEMING, ^* JJ.

DANHOF, Chief Judge.

Defendant pled guilty to cruelty to a child in violation of M.C.L. Sec. 750.136; M.S.A. Sec. 28.331 and was sentenced to two years incarceration. She appeals her conviction as of right.

The sole issue presented concerns the ability of the plea-taking court to rely on photographs to supplement the factual basis for defendant's plea. Defendant admitted that she struck her child with a belt. However, she was unable to describe the precise nature of the injuries inflicted. Therefore, [123 MICHAPP 147] the prosecutor and defense counsel stipulated to the admission of a series of photographs which depicted the victim's condition. Defendant agreed to that procedure. After viewing the photographs, the court ruled that sufficient factual support was established for the plea.

Defendant claims that factual support for a plea of guilty may be supplied only by examination of the accused.

The Supreme Court has established the procedure to be employed for the purpose of taking a plea of guilty or a plea of nolo contendere. GCR 1963, 785.7. It has established different procedures for a guilty plea than a plea of nolo contendere. Where a plea of guilty is entered, the court is required to establish factual support for the plea by questioning the defendant. GCR 1963, 785.7(3)(a). Where a plea of nolo contendere is entered, the court may not question defendant about his involvement. Instead, the court is required to state why such a plea is appropriate and also conduct a hearing to establish support for the plea. GCR 1963, 785.7(3)(b).

In view of the foregoing, we agree with defendant that where the defendant fails to substantially admit guilt in entering a plea of guilty, the parties may not avoid the procedural requirements of the court rule merely by stipulating to the admission of other evidence to provide support for the plea. If defendant is unwilling or unable to admit the facts giving rise to the plea, the appropriate plea is one of nolo contendere if the court can state adequate reasons for acceptance of such a plea. See Guilty Plea Cases, 395 Mich. 96, 132-135, 235 N.W.2d 132 (1975).

Although we agree that the procedure employed is objectionable where defendant does not substantially[123 MICHAPP 148] admit guilt, we do not agree that such supplementation may never occur where a substantial admission has been made by direct questioning of defendant. The purpose of the requirement of direct questioning is to insure that the plea is both voluntarily and intelligently made. People v. Kedo, 108 Mich.App. 310, 316, 310 N.W.2d 224 (1981). These constitutional protections may be satisfied even where defendant fails to admit all of the elements of the offense. People v. Booth, 414 Mich. 343, 358-360, 324 N.W.2d 741 (1982). In Booth, supra, the Court quoted from North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), wherein the United States Supreme Court stated:

" '[T]he Constitution is concerned with the practical consequences, not the formal categorization of state law. * * * Thus, while most pleas of guilty consist of both a waiver of trial and an express admission of guilt, the latter element is not a constitutional requisite to the imposition of criminal penalty. An individual accused of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime.' 400 U.S. 37 . (Emphasis added.)" Booth, supra, 414 Mich. pp. 359-360, 324 N.W.2d 741.

In Guilty Plea Cases, supra, 395 Mich. p. 129, 235 N.W.2d 132, the Supreme Court authorized a procedure for supplementation after remand in cases in which an appellate court has found that an insufficient factual basis was established to support acceptance of the plea. Subsequent decisions of this Court have held that the post-remand supplementation may be supplied by evidence other than defendant's admissions if defendant substantially admitted guilt at the initial plea hearing. Kedo, supra; People v. Brown, 96 Mich.App. 565, 293...