People v. McIntire
| Decision Date | 13 June 1967 |
| Docket Number | No. 3,Docket No. 2348,3 |
| Citation | 7 Mich.App. 133,151 N.W.2d 187 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. George McINTIRE, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, John T. Hammond, Pros. Atty., Berrien County, St. Joseph, for appellee.
Before FITZGERALD, P.J., and BURNS and HOLBROOK, JJ.
Appellate judges are occasionally faced with distasteful obligations. Chief among these is the duty to either overturn or mitigate a sentence on a so-called 'technicality', though the reason is mandated by law. Such a duty unfolds before us here in dealing with a defendant who, at time of one sentence, was addressed thusly by the trial court:
'I will now sentence you on the charge of assault with intent to rape.
So slender is the position of the prosecution in the instant case that the People in their brief, under the sub-head 'Argument', state, 'Plaintiff-appellee submits no argument.'
Having indicated a certain defensiveness about arriving at the result herein, we proceed to unravel the skein of facts:
Defendant is presently serving a sentence of 14 years 11 months to 14 years 11 months 2 weeks on a plea of guilty to a charge of 4 felony convictions as the result of a prosecution brought on supplemental information under C.L.S.1961, § 769.12 (Stat.Ann.1954 Rev. § 28.1084), the so-called Habitual Criminal Act. He had also been sentenced to a 10-year maximum for assault The supplemental information related Inter alia that the defendant (identifying him by name and a number of aliases) was convicted on April 9, 1962, of the crime of larceny from a building in Berrien County and that this was a fourth felony, the previous 3 being:
with intent to rape and 4 years for larceny from a building, the sentences running concurrently.
1. Conviction of attempted rape in circuit court for the county of Sunflower, State of Mississippi, on September 22, 1945;
2. Conviction of assault with intent to do great bodily harm less than the crime of murder in the circuit court for the county of Berrien, State of Michigan, on October 24, 1955;
3. Conviction of assault with intent to rape in the circuit court for the county of Berrien, State of Michigan, on January 22, 1962.
It is the 1945 conviction in Mississippi that defendant attacks upon appeal, claiming it to be null and void because defendant was not advised of his constitutional rights and was not furnished counsel, and that, Ergo, the Michigan habitual criminal conviction is invalid.
For the elucidation of the bench and bar of this State, we feel that it will be of more than passing interest to reproduce in full the only record unearthed by either prosecution or defense of the 1945 Mississippi conviction. No transcript of pretrial proceedings is available and the total record appears to be as follows:
GEORGE JUNIOR MCINTOSH
6034
J & V OF GUILTY AS CHARGED
'This day came the District Attorney who prosecutes for the State, came also the defendant in his own proper person, said defendant George Junior McIntosh having been arraigned on a former day of this term of court, on the indictment found and filed herein against him, charging him with Attempt of Rape, entered a plea of Not Guilty, both the State and the defendant announcing ready for trial, when there came a jury of twelve good and lawful men of Sunflower County, composed of Roy Barmer and eleven others who being duly elected empanelled and sworn to well and truly try the issue joined between the state and the defendant George Junior McIntosh, after hearing all the testimony, the argument of counsel and receiving the instructions of the court, retired to the jury room to consider of their verdict, when presently they returned into open court with the following 'We, the jury find the defendant guilty as charged.' It is therefore the order of the court that the defendant be remanded to the county jail there to await the further action of the court.
/s/ S. F. Davis
CIRCUIT JUDGE'
Following the jury finding of guilty, the court entered the following order:
GEORGE JUNIOR MCINTOSH
'This day came the District Attorney who prosecutes for the State, came also the defendant, George Junior McIntosh, in his own proper person, having been tried and convicted on a former day of this term of court on a charge of ATTEMPT RAPE, and now being called to the bar of the Court and asked if he had anything to say why the sentence of law should not be pronounced against him, answering naught; it, is therefore, the sentence of the Court that for such his crime of ATTEMPT RAPE, the defendant, George Junior McIntosh, serve a term of TEN YEARS in the State Penitentiary and be held by the Sheriff of Sunflower County, Mississippi, until called for by the traveling Sergeant of said Penitentiary.
/s/ S. F. Davis
CIRCUIT JUDGE'
That the record of the proceedings leaves some gaping holes, even by 1945 standards, goes without saying. Perhaps a significant factor is that defendant conducted his own defense before a jury. More significant than this, however, is the startling revelation that at the time he was arraigned and tried for this offense, defendant was 13 years old.
We examine first the defense contention that the conviction is void because defendant was not furnished counsel. That he was tried and convicted without benefit of counsel is undisputed by the People and the record is silent on either offer or waiver of counsel.
A considerable body of authority would support a holding that the Mississippi conviction was null and void for the lack of counsel or an intelligent waiver thereof. Indeed, today scarcely a court in the land would permit a 13-year-old, under any circumstance, to be said to have waived counsel intelligently. On the general question of the right to attack habitual criminal sentences on the ground that the prior conviction was unconstitutional for lack of counsel, see United States ex rel. Foreman v. Fay (D.C., 1960), 184 F.Supp. 535; United States ex rel. Easterling v. Wilkins (2 Cir., 1962), 303 F.2d 883; United States ex rel. LaNear v. LaVallee (2 Cir., 1962), 306 F.2d 417; Johns v. Cunningham (1963), 319 F.2d 1 and United States ex rel....
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