People v. Simpson

• Citation: 192 N.W.2d 118,35 Mich.App. 1
• Decision Date: 30 June 1971
• Docket Number: No. 2,Docket No. 8504,2
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appelle, v. Joe Edward SIMPSON, Defendant-Appellant
• Court: Court of Appeal of Michigan (US)

Page 118

192 N.W.2d 118

35 Mich.App. 1

PEOPLE of the State of Michigan, Plaintiff-Appelle, v. Joe Edward SIMPSON, Defendant-Appellant.

Docket No. 8504.

Court of Appeals of Michigan, Division No. 2.

June. 30, 1971.

Released for Publication Dec. 15, 1971.

Thomas J. McCallum, East Detroit, McCallum, O'Reilly & Cornell, Mt. Clemens, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., George N. Parris, Pros. Atty., Thaddeus F. Hamera, Chief Appellate Lawyer, Stephen F. Osinski, Asst. Pros. Atty., for plaintiff-appellee.

Before LESINSKI, C.J., and BRONSON and DANHOF, JJ.

LESINSKI, Chief Judge.

Defendant Joe Simpson was convicted upon his plea of guilty of breaking and entering with intent to commit larceny. M.C.L.A. § 750.110 (Stat.Ann.1971 Cum.Supp. § 28.305).

In 1964 defendant, then 16 years old, ¹ waived preliminary examination and pled guilty at arraignment. Although not represented by an attorney, defendant's parents were present when the trial judge explained defendant's right to counsel:

'The Court: You understand that you have a right to have a lawyer represent you or advise you at all times?

'The Respondent: Yes, sir.

'The Court: You understand that, in the event that you are unable to secure an attorney and you can convince the court that you and your parents are not able to provide an attorney, then the court will consider appointing a lawyer for you? You understand that?

'The Respondent: Yes, sir.

'The Court: Do you have any questions you want to ask me about the charge or any other requests you want to make?

'The Respondent: No, sir.

'The Court: How do you plead to this?

'The Respondent: Guilty.'

A few days after sentence was imposed, defendant sent the following letter to the trial judge:

'I was sentenced this day 12--30--1964 by you in your court to two to ten years in Ionia Prison. Having never been in trouble or in a court before I was not familiar with the rules and procedures. I understand it is my right to have the court appoint me an attorney and also that I may file for an appeal within a certain length of time. Being I had no counsel, I feel that all of the facts did not come out which put me to a disadvantage. Therefore I feel in all fairness I should appeal. Would you please appoint me an attorney so I may file an appeal.' ²

Defendant contends on appeal that he could not voluntarily, intelligently and knowingly waive his right to appointed counsel at the arraignment because the trial judge did not accurately inform him of that right. Defendant claims that the words 'will consider' as used by the trial judge sufficiently misinformed him of his absolute right to appointed counsel upon a showing of indigency as to render the waiver invalid.

In People v. Bailey (1967), 7 Mich.App. 157, 151 N.W.2d 184, a similar claim was sustained where a 19-year-old indigent defendant, unfamiliar with the proceedings and acting under the apparent misapprehension that it was too late for an attorney, waived counsel after being informed that the court would only 'consider' such a request, on the basis that, under those circumstances, such instructions were not in substantial compliance with the requirements of GCR 1963, 785.3(1).

The decision in People v. Bailey, Supra, rested upon the particular circumstances there presented. It does not stand for the proposition that use of incorrect verbiage by the trial judge, standing alone, allows a defendant to withdraw his guilty plea. Nor does Bailey hold that minor defendants may not validly waive assistance of counsel. On the contrary, there is sufficient authority that minors may waive constitutional rights to put that issue to rest. People v. Stanton (1970) 28 Mich.App. 597, 184 N.W.2d 576; People v. Schwartz (1967) 6 Mich.App. 581, 149 N.W.2d 897; People v. Shaffer (1966), 4 Mich.App. 192, 144 N.W.2d 680; People v. Wilson (1966), 5 Mich.App. 428, 146 N.W.2d 826.

The prosecution argues that the language used by the trial judge substantially complies with GCR 1963, 785.3(1) and the requirements of the Fourteenth Amendment, and that although a 'technical' misstatement was made, the fundamental inquiry on review should be limited to whether there has been a miscarriage of justice. See People v. Winegar (1968), 380 Mich. 719, 158 N.W.2d 395.

The prosecution cites People v. Dunn (1968), 380 Mich. 693, 158 N.W.2d 404; People v. Stearns (1968), 380 Mich. 704, 158 N.W.2d 409; and People v. Winegar, Supra, for the proposition that since defendant recited facts showing his participation in the crime sufficient for conviction and no contention of innocence is now interposed, nor any facts alleged which would indicate that the plea was involuntarily made, no miscarriage of justice resulted from the judicial miscue here involved.

Dunn, Stearns, Winegar, and People v. Hobdy (1968), 380 Mich. 686, 158 N.W.2d 392, hold that once an accused is fully informed of the right to appointed counsel, his stated desire to plead guilty constitutes a valid waiver and that an express waiver is not necessary. The thrust of those cases is that mere technical noncompliance with a rule is not enough to vacate an otherwise valid plea of guilty, once it is apparent that the accused fully understands his constitutional rights.

However, it is one thing to say that express waiver is not required; it is something else to presume a waiver of a constitutional right from a record which shows that the accused was misinformed of his rights. See People v. Burian (1971), 32 Mich.App. 220, 188 N.W.2d 652. As stated in Carnley v. Cochran (1962), 369 U.S. 506, 516, 82 S.Ct. 884, 890, 8 L.Ed.2d 70, 77: 'The record must show * * * that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.' We cannot presume that a 16-year-old can intelligently waive an absolute right upon being informed by the trial judge that the right was, in effect, conditional.

The assistance of counsel to an indigent defendant in a criminal trial is a fundamental right and a denial of such assistance violates the Fourteenth Amendment. Gideon v. Wainwright (1963) 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, 93 A.L.R.2d 733. Even defendants who plead guilty are Entitled to the benefit of counsel. Rice v. Olson (1945), 324 U.S. 786, 65 S.Ct. 989, 89 L.Ed. 1367. At that stage of the proceedings the advice of counsel cannot be gainsaid. A lawyer, looking at the array of evidence and weighing the mitigating circumstances, might have an entirely different opinion on the advisability of offering a plea than one not familiar with the proceedings. The relevant court rule recognizes this principle by stating that the accused...