People v. Snyder, Docket No. 17826

• Decision Date: 02 May 1974
• Docket Number: No. 3,Docket No. 17826,3
• Citation: 53 Mich.App. 249,218 N.W.2d 770
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John SNYDER, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 770

218 N.W.2d 770

53 Mich.App. 249

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John SNYDER, Defendant-Appellant.

Docket No. 17826.

Court of Appeals of Michigan, Division No. 3.

May 2, 1974.

Released for Publication June 19, 1974.

James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Calvin L. Bosman, Pros. Atty., for plaintiff-appellee.

Before R. B. BURNS, P.J., and ALLEN and O'HARA,* JJ.

R. B. BURNS, Presiding Judge.

Defendant pled guilty to breaking and entering an occupied dwelling with the intent to commit larceny. M.C.L.A. § 750.110; M.S.A. § 28.305.

At that hearing the trial judge did not inform the defendant of his privilege against self incrimination as required by People v. Jaworski, 387 Mich. 21, 194 N.W.2d 868 (1972).

At sentencing, approximately two weeks later, the trial judge attempted to correct this oversight. The following colloquy took place:

'THE COURT: You understand now and you understood then when you entered a plea of guilty you were waiving your right to a trial?

'THE DEFENDANT: Yes.

'THE COURT: You knew that you had a right to remain silent, didn't you?

'THE DEFENDANT: Yes, sir.'

The thrust of Jaworski is that the defendant should be informed of the rights he loses by pleading guilty in order that he may make an intelligent choice and understand the consequences of such a plea. Accepting the plea and then informing a defendant of his rights at a later date prevents the plea from being entered freely, understandingly and voluntarily as required by the due process clause of the Fourteenth Amendment.

Reversed and remanded for a new trial.

O'HARA, Judge (dissenting).

I regret that I cannot agree with the opinion of my esteemed colleagues holding that the involved plea was fatally infirm because defendant was only informed of his privilege against self-incrimination at the time sentence was imposed.

This Court has often observed that substance and not form will control and that the guilty plea rule is satisfied in this regard if the trial court determines that defendant's plea was voluntarily made. People v. Poindexter, 44 Mich.App. 325, 205 N.W.2d 235 (1973).

GCR 1963, 785.3(2), which was in effect on the date of the taking of defendant's guilty plea, provided:

'Imposing Sentence. 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; and regardless of whether he is represented by counsel, the court shall examine the accused, not necessarily under oath, and as a condition of accepting the plea of guilty and imposing sentence shall ascertain that the plea was freely, understandingly, and voluntarily made, without undue influence, compulsion, or duress, and without promise of leniency. Unless the court determines that the plea of guilty was so made, it shall not be accepted.' (Emphasis supplied.)

There is no direction as to any particular order to be employed in informing the defendant of his rights. The rule speaks only of...