People v. La Roe
| Decision Date | 26 June 1969 |
| Docket Number | Docket No. 6008,No. 2,2 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Cecil LA ROE, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
Joseph V. Wilcox, Wilcox & Robinson, Albion, for appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Bruce A. Barton, Pros. Atty., Jackson County, Jackson, for appellee.
Before LESINSKI, C.J., and QUINN and DANHOF, JJ.
Defendant was charged with murder. November 18, 1963, he appeared with counsel before a magistrate and demanded examination, which was set for December 5, 1963. On the latter date and with his counsel present, defendant waived examination and he was bound over to circuit court. At arraignment on the information December 17, 1963, defendant appeared without counsel. When asked if William Christie represented him, defendant said yes. When asked if Mr. Christie was supposed to be present, defendant replied no. The trial judge then indicated on the record that defendant waived the reading of the information, stood mute and the court entered a plea of not guilty.
January 14, 1964, the date set for defendant's jury trial, he appeared with counsel and pleaded guilty to second degree murder.* The plea transcript indicates defendant pleaded guilty freely, without threats or promises being made to him, and defendant admitted he killed one William Behling. After the plea, defendant was remanded to custody and the trial judge ordered a presentence report. The sentencing transcript of January 17, 1964 indicates the killing occurred during a robbery and that defendant had been in prison on numerous occasions. Defendant was 36 years of age at this time.
As provided in C.L.1948, § 769.18 (Stat.Ann.1954 Rev. § 28.1088), the sentencing judge filed a statement of facts which he deemed important or necessary for a full comprehension of the case. It reads as follows:
This man is 36 years of age, with a long criminal record. I have had the presentence report on him and sentence him from twenty (20) to forty (40) years, State Prison of Southern Michigan, with no recommendation.'
February 24, 1967, defendant in propria persona filed application for a writ of habeas corpus with the trial court. This was denied by written opinion dated April 6, 1967. October 10, 1967, defendant's attorney filed a motion to withdraw the plea of guilty and to set aside the conviction and vacate sentence, or in the alternative to grant leave to file a motion for a new trial. One of the grounds alleged for relief in this motion was that defendant's counsel was not present at the time defendant was sentenced. The remaining grounds of the motion related to alleged noncompliance with GCR 1963, 785.3(1) and (2), 379 Mich. xxvi, and C.L.1948, § 768.35 (Stat.Ann.1954 Rev. § 28.1058).
Defendant claimed the failure of the trial judge to advise defendant of his right to jury trial before plea violated GCR 1963, 785.3(1). The alleged noncompliance with GCR 1963, 785.3(2) arose from the trial court's failure to advise defendant of the nature of the accusation and consequence of plea and to examine defendant sufficiently to determine that the plea was freely, understandingly and voluntarily made, without undue influence, compulsion, or duress, and without promise of leniency. The latter claim also relates to the alleged noncompliance with CL 1948, § 768.35, Supra.
The motion was submitted to the trial court prior to decision of the Supreme Court in People v. Winegar (1968), 380 Mich. 719, 158 N.W.2d 395, and the trial court withheld decision on the motion until Winegar was decided. By written opinion filed June 13, 1968, the trial court ruled against defendant on each ground set forth in the motion, except the opinion held it was error to sentence defendant without his counsel present. The opinion ended by denying the motion and directing defendant and his attorney to be present on June...
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