People v. Stevens

• Decision Date: 06 February 1979
• Docket Number: Docket No. 77-3434
• Citation: 88 Mich.App. 421,276 N.W.2d 910
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Donald STEVENS, Defendant-Appellant. 88 Mich.App. 421, 276 N.W.2d 910
• Court: Court of Appeal of Michigan — District of US

Page 910

276 N.W.2d 910

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Donald STEVENS, Defendant-Appellant.

Docket No. 77-3434.

88 Mich.App. 421, 276 N.W.2d 910

Court of Appeals of Michigan.

Feb. 6, 1979.

Released for Publication March 29, 1979.

[88 MICHAPP 423] Lawrence R. Greene, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Frank R. DelVero, Pros. Atty., Keith D. Roberts, Pros. Attys. Appellate Service, Asst. Atty. Gen., for plaintiff-appellee.

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

BRONSON, Judge.

Defendant was convicted by a jury of unarmed robbery, M.C.L. § 750.530; M.S.A. § 28.798. He subsequently pled guilty to a supplemental information charging him as a habitual offender pursuant to M.C.L § 769.12; M.S.A. § 28.1084 and was sentenced to a prison term of 15 to 30 years. He now appeals as of right.

On July 20, 1976, a lone gunman entered Val's Pizzeria in Brighton, Michigan, and demanded that the contents of the cash register be placed in his hat. The gunman fled the store and entered a red Chevrolet Nova, which left the area. This car was spotted by Trooper Gary Groth of the Michigan State Police and he pursued and stopped the vehicle. After a back-up unit arrived, the occupants were told to leave the car. The officers then [88 MICHAPP 424] saw a gun in the car and the occupants were placed under arrest. Defendant was one of these occupants, although the testimony at trial established that he was not the gunman who had entered Val's. A subsequent search of the car uncovered a hat containing cash and a Val's menu card.

At trial, defendant objected to the admission of various exhibits offered by the prosecution on the ground that there were breaks in the chain of custody. The trial court overruled the objection. We find no error in the trial court's ruling. The fact that there are breaks in the chain of custody does not require that the evidence be excluded. To be admissible, the prosecution must merely lay a foundation identifying the articles as what they are purported to be and showing that they are connected with the crime or the accused. People v. Kremko, 52 Mich.App. 565, 573, 218 N.W.2d 112 (1974), People v. Burrell, 21 Mich.App. 451, 456-457, 175 N.W.2d 513 (1970). In the present case there was sufficient evidence of the exhibits' identity and connection to the crime to support their admission at trial. ¹ Any breaks in the chain of custody go to the weight of the evidence, not its admissibility. People v. King, 58 Mich.App. 390, 398-399, 228 N.W.2d 391, (1975); People v. Mitchell, 37 Mich.App. 351, 356, 194 N.W.2d 514 (1971). Thus, no error occurred.

[88 MICHAPP 425] Defendant next contends that his guilty plea to the habitual offender information should be vacated because the plea proceedings did not comply with the requirements of the guilty plea rule, GCR 1963, 785.7. The prosecution contends that compliance with the guilty plea rule is not mandatory, and a plea proceeding is proper as long as the trial court has complied with the procedures set forth in the habitual offender act. ² For the reasons stated below, we hold that GCR 1963, 785.7 is applicable to proceedings in which a defendant pleads guilty to a habitual offender information.

As the dissent points out, unlike a regular criminal information, a supplemental information charging defendant as a habitual offender does not charge a defendant with a separate crime, but instead provides for enhanced punishment for the current conviction. People v. Hendrick, 398 Mich. 410, 247 N.W.2d 840 (1976). This distinction is not determinative.

Perhaps the most appropriate method of addressing the question of the applicability of the guilty plea rule in these situations is to compare a [88 MICHAPP 426] habitual offender proceeding with a regular criminal trial, where the guilty plea rule is applicable, Guilty Plea Cases, 395 Mich. 96, 235 N.W.2d 132 (1975), and a probation revocation hearing where the rule is not applicable, People v. Rial, 399 Mich. 431, 249 N.W.2d 114 (1976).

The habitual offender proceeding is similar to a probation revocation hearing in that in neither case is defendant charged with a criminal offense, and in both situations the proceeding is concerned with a fairly narrow factual issue. At this point, however, the similarities end.

The habitual offender proceeding, like an ordinary criminal trial, is a critical stage of a criminal prosecution. See People v. Johnson, 386 Mich. 305, 192 N.W.2d 482 (1971); People v. Burton, 44 Mich.App. 732, 205 N.W.2d 873 (1973). ³ Defendants in both instances have the right to a trial by jury, M.C.L. § 769.13; M.S.A. § 28.1085, and the prosecution must prove the charges by proof beyond a reasonable doubt. People v. Covington, 70 Mich.App. 188, 191, 245 N.W.2d 558 (1976), Lv.den. 402 Mich. 843 (1977). Furthermore, the habitual offender proceeding is subject to the same evidentiary and procedural rules as a regular trial, M.C.L. § 769.13; M.S.A. § 28.1085. A probation revocation hearing is Not a stage of a criminal prosecution, Rial, supra, 399 Mich. at 435, 249 N.W.2d 114. Defendant does Not have the right to a jury trial, People v. Gladdis, 77 Mich.App. 91, 96, 257 N.W.2d 749 (1977), and the violation need only be proven by a preponderance of the evidence. People v. Miller, 77 Mich.App. 381, 387, 258 N.W.2d 235 (1977). Moreover, the revocation proceeding is [88 MICHAPP 427] deemed to be summary and informal, and the normal evidentiary and procedural rules of a criminal trial are Not applicable. Rial, supra, 399 Mich. at 436, 249 N.W.2d 114.

Taking all these factors into consideration, it seems clear that the habitual offender proceeding is much closer to a regular criminal trial than a probation revocation hearing, and also that a guilty plea to a habitual offender charge involves the waiver of substantial criminal trial rights not afforded a defendant at a probation revocation hearing. For these reasons, the guilty plea rule should apply to habitual offender proceedings. To hold otherwise merely because the proceeding does not technically charge defendant with any crime appears to exalt form over substance. A defendant pleading guilty to a recidivist charge is waiving substantial rights and is subjecting himself to the possibility of enhanced punishment. From the defendant's point of view such a charge is no different from any other criminal charge. In order to establish that the plea is intelligently, understandingly, and voluntarily given, compliance with GCR 1963, 785.7 is required.

Because the sentencing consequences can be more severe than the individual convictions upon which the habitual offender charge is premised, it is imperative that the defendant understand his rights when pleading guilty to the habitual charge. ⁴ Therefore, the defendant should be advised of the possible maximum sentence, right to be tried by the court or jury, his presumption of [88 MICHAPP 428] innocence, the people's burden of proof, his right to confrontation and compulsory process, his right to testify or remain silent without having the silence used against him as well as his rights under subsections (2) and (3) of GCR 1963, 785.7. ⁵

We realize that People v. Parker, 50 Mich.App. 537, 213 N.W.2d 576 (1973), held that a defendant need not be informed of his Jaworski rights ⁶ prior to pleading guilty to a supplemental information charging him with being a habitual offender. This case was decided prior to the promulgation of the guilty plea rule, GCR 1963, 785.7. We feel that due to the increased judicial awareness of the problems which may arise at a guilty plea proceeding and the greater scrutiny of these proceedings which has been engendered by the guilty plea rule and subsequent cases, the rule announced in Parker is no longer controlling. However, since trial judges may have justifiably relied on Parker when taking pleas to habitual offender charges, the rule announced in this opinion is to be given prospective application.

Defendant's conviction for unarmed robbery is affirmed. His guilty plea to the recidivist charge is vacated, and the case is remanded for further proceedings consistent with this opinion.

DANHOF, Chief Judge (dissenting).

Defendant was convicted[88 MICHAPP 429] by a jury of unarmed robbery, M.C.L. § 750.530; M.S.A. § 28.798, and was subsequently sentenced as a habitual offender, M.C.L. § 769.12; M.S.A. § 28.1084. On appeal defendant claims that the trial judge erred reversibly by allowing certain items to be admitted into evidence and by failing to follow the procedures required by GCR 1963, 785.7 in accepting defendant's guilty plea to the habitual offender charges. While I agree with the majority's conclusion that the trial judge did not err in allowing this evidence to be admitted, I do not agree with the holding that the judge erred reversibly by failing to comply with GCR 1963, 785.7 in accepting defendant's plea to the habitual offender supplemental information.

Stated simply, the issue to be resolved is whether GCR 1963, 785.7 applies to proceedings under M.C.L. § 769.13; M.S.A. § 28.1085. GCR 1963, 785.7 is silent as to whether it applies to habitual offender proceedings. This silence is ambiguous. A defendant at a habitual offender proceeding is pleading to a supplemental information and this, at first glance, tends to support the conclusion that this proceeding is a stage of a criminal prosecution to which GCR 1963, 785.7 applies. However, this information does not charge defendant with committing a criminal offense, but rather, it merely informs the Court of the fact of defendant's prior convictions, see People v. Shotwell, 352 Mich. 42, 88 N.W.2d 313 (1958), Cert. den. 356 U.S. 976, 78 S.Ct. 1141, 2 L.Ed.2d 1149 (1958); People v. Palm, 245 Mich. 396, 223 N.W. 67 (1929). Also, Justice Levin's concurring opinion in People v. Rial, 399 Mich. 431, 438, 249 N.W.2d 114, 116 (1976),...