People v. Schwartz

• Decision Date: 25 April 1967
• Docket Number: No. 3,Docket No. 2219,3
• Citation: 6 Mich.App. 581,149 N.W.2d 897
• Parties: The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Max SCHWARTZ, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 897

149 N.W.2d 897

6 Mich.App. 581

The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert Max SCHWARTZ, Defendant-Appellant.

Docket No. 2219.

Court of Appeals of Michigan, Division No. 3.

April 25, 1967.

Carl W. Bilyea, Crandell & Bilyea, Cadillac, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Gary C. Hoffman, Pros. Atty., Missaukee County, Lake City, for appellee.

Before FITZGERALD, P.J., and BURNS and QUINN, JJ.

BURNS, Judge.

Defendant, without counsel, pleaded guilty to the charge of breaking and entering an unoccupied dwelling with intent to commit larceny, in violation of C.L.1948, § 750.110, as amended by P.A.1964, No. 133 (Stat.Ann.1965 Cum.Supp. § 28.305). Defendant was placed on probation for 2 years, but probation was subsequently revoked and defendant was sentenced to prison. Defendant has appealed, claiming that the trial court erred:

1. By questioning the defendant as to the alleged crime before a plea of guilty was entered;

2. Because the presiding judge did not certify the transcript before it was filed with the county clerk;

3. By allowing an 18 year old boy to waive the right to counsel without the benefit of friends, parents or counsel;

4. Because the trial court did not fully examine the defendant as to the facts of the alleged crime before accepting his plea of guilty.

The arraignment of Robert Schwartz commenced with the reading of the information which alleged, in part, that defendant had stolen 'a quart of peaches' and some other items a cabin in Missaukee county. Immediately thereafter the court asked the following questions:

'The Court: Were these home-canned peaches?

'Defendant: Yes.

'The Court: Are you Robert Schwartz?

'Defendant: Yes.

'The Court: How old are you, Bob?

'Defendant: Eighteen.

'The Court: Where do you live?

'Defendant: Kalamazoo.

'The Court: Are your parents here?

'Defendant: No.

'The Court: Do you have any relatives here?

'Defendant: No.

'The Court: Have you ever been in court before?

'Defendant: No. I've been in juvenile court.

'The Court: How far did you go in school?

'Defendant: I'd a had four more weeks to finish in the eleventh.

'The Court: I take it, then, that you read and write the English language?

'Defendant: Yes.'

'Emphasis supplied.)

The arraignment continued, defendant pleaded guilty and the plea was accepted.

Defendant argues that it was a violation of due process ¹ for the trial court to ask the above emphasized questions Before the court explained defendant's constitutional rights or received a plea of guilty as required by GCR 1963, 785.3. To quote from defendant's brief:

'Appellant contends that the questioning of defendant by the court in regard to the peaches and defendant's prior appearance before a court, results in requiring the defendant to plead to the charge by indirect means, where it is not permitted by direct means.'

In order to uphold defendant's position we would have to conclude that defendant pleaded guilty, or a plea of guilty was elicited by the judge because of the 'peach' remark and the conversation concerning prior court appearance. This we cannot do. The arraigning judge did not, in the slightest degree, try to stretch defendant's answers into a binding plea. The fact that defendant knew that the quart of peaches was home-canned might possibly be considered by a fact finder as an admission of guilt if the statement was made or related during the course of a trial, but it certainly cannot be (and was not in the instant case) interpreted as such when made during arraignment proceedings.

Next, defendant contends that the transcript of the arraignment is not a competent record because the trial court failed to certify it when it was filed with the county clerk. However, the circuit judge signed the following certification subsequent to the sentence proceedings held January 21, 1966:

'I, William R. Peterson, Circuit Judge in and for the 28th Judicial Circuit of Michigan, do hereby certify that the foregoing is a true and accurate record of the proceedings had at the time of arraignment and/or sentence in the above entitled cause, which I have caused to be prepared by the Official Court Reporter in accordance with GCR 1963, 785.3.'

GCR 1963, 785.3(3) requires judicial certification of the stenographic record of all arraignment and sentence proceedings, but this court rule does not specify the time for certification. Therefore, w...