People v. Stearns

• Citation: 158 N.W.2d 409,380 Mich. 704
• Decision Date: 08 May 1968
• Docket Number: No. 7,7
• Parties: PEOPLE of the State of Michigan, Plaintiff and Appellee, v. James Lee STEARNS, Defendant and Appellant.
• Court: Supreme Court of Michigan

Page 409

158 N.W.2d 409

380 Mich. 704

PEOPLE of the State of Michigan, Plaintiff and Appellee, v. James Lee STEARNS, Defendant and Appellant.

No. 7.

Supreme Court of Michigan.

May 8, 1968.

Stuart D. Hubbell, Pros. Atty., by Kenneth G. Mackness, Chief Asst. Pros. Atty., County of Grand Traverse, Traverse City, for appellee.

Philip A. Clancey, Traverse City, for defendant and appellant.

Before the Entire Bench.

ADAMS, Justice.

Defendant James Lee Stearns, aged 23, was charged with breaking and entering in the nighttime. It was alleged that the offense occurred July 21, 1961. He was arraigned in municipal court on August 7, 1961, waived examination, and was bound over to circuit court. On August 16, 1961, he was arraigned in circuit court.

The following exchange took place upon arraignment:

'THE COURT: You understood you had a right to have examination?

'DEFENDANT: Yes, sir.

'THE COURT: And a right to have your own lawyer with you?

'DEFENDANT: Yes.

'THE COURT: Did you have a lawyer?

'DEFENDANT: No, sir.

'THE COURT: You understand, should you be found guilty, this court would have a right to send you to jail, but doesn't have to?

'DEFENDANT: Yes, sir.

'THE COURT: You understand, of course, you have a right to have a jury trial and a right to have a lawyer represent you in this court. Do you wish to have a jury trial?

'DEFENDANT: No, sir.

'THE COURT: Do you want a lawyer to represent you?

'DEFENDANT: No, sir.

'THE COURT: Have you figured out how you intend to plead to this charge?

'DEFENDANT: Yes, sir. Guilty.

'THE COURT: On pleading guilty did anyone use any force, threats or influence of any kind against you in order to get you to say you are guilty?

'DEFENDANT: No, sir.

'THE COURT: Have the officers used you all right?

'DEFENDANT: Yes, sir.

'THE COURT: They didn't beat you up?

'DEFENDANT: No.

'THE COURT: Did anybody make any promises to you in order to get you to plead guilty?

'DEFENDANT: No, sir.

'THE COURT: You are pleading guilty because you are guilty and for no other reason?

'DEFENDANT: Yes, sir.

'THE COURT: Very well. The court will accept your plea * * *.'

On September 6, 1961, an assistant prosecutor moved for sentence. The transcript shows:

'THE COURT: Can you give us any reason why, with your high intellect, your high IQ, you continue to get yourself in all this trouble?

'DEFENDANT: Well, sir, I guess everybody has an excuse or more or less something they fall back on, and about the only thing I could use, and I guess it is pretty well the truth, is my drinking problem has been pretty bad.

'THE COURT: Well, I think that is the truth; but you have difficulty in using the truth. In fact, you would tell a lie when the truth would be much better. You haven't lied to me here this morning, as yet. Here you are with an IQ of 126; far above average intelligence. If you would just get that mind of yours working in the right channel, in the right direction, you could really go places and make something of yourself; but here you are now with at least a third felony. Did I sentence you the first time?

'DEFENDANT: No, sir. Judge Jacobs, from Centreville, Michigan.

'THE COURT: That was October 20, 1952.

'DEFENDANT: Yes, sir.

'THE COURT: He gave you two to fifteen years for breaking and entering in the nighttime.

'DEFENDANT: Yes, sir.

'THE COURT: Then you were paroled, and violated your parole.

'DEFENDANT: Yes, sir.

'THE COURT: And went back. How many times did you go back, before you finished that sentence?

'DEFENDANT: Well, sir, I went back P.V., then I got a new setence in 1954, from Petoskey.

'THE COURT: That was two to fourteen years for forgery?

'DEFENDANT: Yes. Then I went back as a parole violator in 1959 from here.

'THE COURT: Then you were paroled September 12, 1957, from here?

'DEFENDANT: Yes, sir.

'THE COURT: And you violated that parole in 1959?

'DEFENDANT: Yes, sir.

'THE COURT: And you just came out on parole the 16th of June this year, didn't you?

'DEFENDANT: Yes, sir.

'THE COURT: Then you commit this present act of breaking and entering in the nighttime. You are becoming an habitual. If you get one more, you could go to prison for the rest of your life, do you know that?

'DEFENDANT: Yes, sir.

'THE COURT: I don't know what it takes to slow you down. I have a real thick file here. Everything possible has apparently been done by the parole officers and law enforcement officers. They are not interested in riding you or trying to get you in prison again; they would much rather see you stay out of prison. But here you are, out in June, and you are back in the same old swing again. Frankly, I know you fellows have more or less of a code; you are not going to tell on anybody else. We know you know a lot of things you haven't told the officers. You are certainly true to your buddies. I am not going to ask you to 'rat' on them, in common parlance. I think if you would come clean with the officers and tell them everything, it might be better for you in the long run.

'If I don't give you a pretty good sentence this time, you are going to be in a position where you will probably have supplementals filed on you, and you would eventually be spending the rest of your life in prison. I don't want to see that happen to you, regardless of what you have done. Viewing your record, this is the third one, and a violation of parole on every one that you had--several violations of parole, so I have got to send you back, and

'IT IS THE SENTENCE OF THIS COURT that you be confined in Southern Michigan Prison for a period of not more than fifteen (15) years, or less than seven and-a-half (7 1/2) years.'

Philip A. Clancey was appointed to represent the defendant in post-conviction proceedings. On April 9, 1965, he filed a motion for a new trial, supported by his own affidavit in which he set forth that defendant at no time was advised that, if he had not sufficient funds with which to retain a lawyer, the court would appoint an attorney to represent him at county expense. The people do not contest this claim. However, Kenneth G. Mackness, assistant prosecuting attorney, filed a counter-affidavit in which he stated:

'(a) This Defendant was well acquainted with criminal procedure having been twice before convicted of felonies; once of a Breaking and Entering in the Night Time, the same kind of violation as charged in this case, and Forgery;

'(b) This Defendant had previously, on at least 1 occasion, had counsel appointed for him at public expense, towit: Albert T. Washburne, Attorney at Law of Petoskey, Michigan was appointed on September 14, 1954 by the Emmet County Circuit Court to represent this Defendant on the charge of Forgery, above referred to '(c) Psychological evaluations of this defendant have disclosed that he is of very superior intelligence, possessing an I.Q. of 126.'

Circuit Judge Charles L. Brown, in denying the motion for new trial, found:

'Defendant's motion for new trial, brief in support thereof, counter affidavits of the People, the transcript of arraignment, remarks of this Court in passing sentence, presentence reports of previous sentences received by defendant, and informations charging defendant with various crimes in the State of Michigan having been read and considered by this Court, from which it conclusively appears that defendant while a juvenile was an inmate of the Michigan Boys Vocational School; that on September 17, 1952, he received a sentence of twenty-five months to fifteen years for breaking and entering in the night time at St. Joseph County, Michigan; that on September 23, 1954 he received a sentence of two to fourteen years for forgery at Emmet County, Michigan, at which time he was represented, at public expense, by A. T. Washburne, Attorney at Law of Petoskey, Michigan; that he was advised of his right to counsel by this Court on arraignment in Circuit Court and at his arraignment in Municipal Court prior to his sentence in the instant case; that the presentence reports indicate he is possessed of superior intelligence and (well knew of his right to counsel at public expense) well knew the penalty for breaking and entering in the night time (having previously served a prison sentence for exactly the same offense, beginning on September 24, 1952); that he specifically stated he had not been influenced, forced, threatened or received any promises to induce him to plead guilty; that such plea was intelligently made and that this Court may take judicial notice of its own records and the records of other Michigan Courts of record in determining whether a defendant is familiar with Court procedure. (See (State of) Wisconsin v. Camara (28 Wis.2d 365) 137 N.W.2d, 1; decided Oct. 5, 1965).

'Having determined that defendant intelligently waived his right to jury trial and counsel and that he knew the nature and consequences of his plea of guilty, freely and intelligently made, his motion for new trial is hereby Denied.'

Application for delayed appeal was denied by the Court of Appeals on May 19, 1966. We granted leave.

Defendant's attorney, in applying to this Court for leave, deposes that:

'Counsel is informed and verily believes the alleged incident took place in the daytime whereas Respondent stands convicted of Breaking and Entering in the Nighttime.'

I. THE COURT RULE

Rule 35--A, Court Rules of 1945 (318 Mich. xxxix), which was in effect at the time of defendant's arraignment and sentence, provided, in part:

'In every prosecution wherein the accused is charged with a felony the trial court shall conform to the following practice:

'Sec. 1. Arraignment. If the accused is not represented by counsel upon arraignment, before he is required to plead the court shall advise the accused that he is entitled to a trial by jury and to have counsel, and that in case he is financially unable to provide counsel the court will, if accused so requests, appoint counsel for him. If the accused states he will procure counsel or request that counsel be appointed, a reasonable time...