People v. Menton, Docket No. 2929

• Decision Date: 27 June 1967
• Docket Number: No. 3,Docket No. 2929,3
• Citation: People v. Menton, 151 N.W.2d 360, 7 Mich.App. 267 (Mich. App. 1967)
• Parties: PEOPLE of the State of Michigan, Plaintiff and Appellee, v. Kenneth MENTON, Defendant and Appellant
• Court: Court of Appeal of Michigan

Page 360

151 N.W.2d 360

7 Mich.App. 267

PEOPLE of the State of Michigan, Plaintiff and Appellee, v.Kenneth MENTON, Defendant and Appellant.

Docket No. 2929.

Court of Appeals of Michigan, Division No. 3.

June 27, 1967.

Robert A. Burns, Korn & Burns, Cadillac, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol.Gen., Lansing, Edward W. TenHouten, Pros.Atty., Wexford County, Cadillac, for appellee.

Before BURNS, P.J., and HOLBROOK, and RYAN, ^* JJ.

HOLBROOK, Judge.

Defendant was arraigned on February 25, 1966, in the Wexford county circuit court on a charge of uttering and publishing a forged check.He waived his right to court appointed counsel by refusing the same and voluntarily pleaded guilty to the charge.

On March 28, 1966, the defendant was placed on probation for a period of 2 years (including an initial 6 month jail sentence with day parole); ordered to pay court costs in the amount of $240 at $10 per month, make restitution to his father¹ and pay certain sums of money for fines and costs to recorder's court in the city of Cadillac.

Defendant broke several conditions of his probation in August of 1966.On August 26, 1966, the trial court revoked defendant's probation and sentenced him to a prison term of 3 1/2 to 14 years, with credit for time served in the county jail.

Appeal to this Court is made by the defendant, raising 3 questions as follows: (1) Whether he expressly (intelligently and understandingly) waived his right to counsel; (2) whether the trial court gave him an opportunity to request counsel; and (3) whether the trial court informed him of the consequence of his plea pursuant to GCR 1963, 785.3(2).

Defendant asserts that he did not expressly waive his right to counsel and that no opportunity was given him to request counsel.In making these assertions, defendant relies on the cases of People v. Hobdy(1966), 5 Mich.App. 275, 146 N.W.2d 83;People v. Hilko(1966), 5 Mich.App. 166, 146 N.W.2d 102;andPeople v. Winegar(1966), 4 Mich.App. 547, 145 N.W.2d 257.

On arraignment the following colloquy occurred between the trial judge and the defendant:

'The Court: * * * You are entitled to have your trial before a jury of 12 people from around the county.And you are entitled to have assistance at such a trial of an attorney who would handle the matter as far as the legal forms are concerned and would be your spokesman in court.As a matter of fact, you are entitled to have the advice of an attorney if you have any question whatsoever as to your rights as to what your procedure ought to be today or if you have any other question whatever about the nature of this charge.You understand this?

'Defendant: Yes, sir.

'The Court: Now if you are unable to provide an attorney at your own expense and if you wish one, we will provide one for you at public expense.It is obvious the right is worthless if you don't have means of getting an attorney.Have you talked to an attorney about your case?

'Defendant: No I haven't.

'The Court: Do you wish to do so before we proceed any further?

'Defendant: No.'

We read this colloquy as an express waiver of defendant's right to counsel.In Hobdy, supra, the trial court's inquiry was limited to whether the defendant understood his right to representation by counsel and court appointed counsel on proper request--an affirmative reply being made to that limited inquiry was found by this Court not to constitute an express waiver of the right to counsel.Also, see, People v. Parshay(1967), 379 Mich. 7, 148 N.W.2d 869, a recent and analogous case.In our case, however, defendant Menton was asked by the trial judge whether he wished to talk to an attorney before further proceedings were taken.We find his 'no' answer as an express (intelligent and understanding) waiver of the right to counsel.In this respect the record in this case is not 'a silent record' as to waiving benefit of counsel.Carnley v. Cochran(1962), 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70;People v. Parshay, supra.

We also read the above colloquy as affording the defendant an opportunity to request counsel.People v. Hilko, supra, quotedPeople v. Atkins(1966), 2 Mich.App. 199, 202, 203, 139 N.W.2d 325, 5 Mich.App. at p. 168, 146 N.W.2d at p. 103, as follows: 'This court holds that the trial court should have inquired of the defendant whether or not he wished to have counsel, and, if so, have given him an opportunity to obtain the advice of such counsel.'

Defendant's contention here is that the trial court only asked whether he wished To talk to an attorney and not whether he wished To request an attorney.The obvious import of the trial court's question goes to defendant's desire or non desire to have counsel.We find the trial judge to have afforded defendant Menton 'an opportunity to request counsel'--the difference between an opportunity To talk to and To request an attorney being solely one of semantics in this particular instance.

Defendant claims the trial judge failed to comply with GCR 1963, 785.3(2) on imposing sentence.This court rule in effect at defendant's arraignment and sentencing reads in part as follows: 'If the accused pleads guilty, after such plea and before sentence the court shall inform the accused of the nature of the accusation and the consequence of his plea.'

The record in the case at hand, unlike that of People v. Winegar, supra, is not devoid of any reference to the crime charged--i.e., 'the nature of the accusation.'The trial judge informed defendant that 'uttering and publishing charges you with handling and passing a check which you knew was forged or was otherwise fraudulent or counterfeit.You are not actually charged with the forgery yourself.'

Likewise, the record indicates that on 2 occasions the trial judge informed defendant of the consequence of his plea:

'The Court: You understand that this information charges you with the violation of the criminal laws of the State...