People v. Stewart

• Decision Date: 29 March 1968
• Docket Number: No. 1,Docket No. 3341,1
• Citation: 10 Mich.App. 553,157 N.W.2d 327
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles STEWART, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 327

157 N.W.2d 327

10 Mich.App. 553

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles STEWART, Defendant-Appellant.

Docket No. 3341.

Court of Appeals of Michigan, Division No. 1.

March 29, 1968.

Elliot I. Beitner, Detroit, and Molly Ann Cooke Beitner, Detroit, of counsel, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, William L. Cahalan, Pros. Atty., Wayne County, Samuel J. Torina, Chief Appellate Lawyer, Wayne County, Richard J. Patzieski, Asst. Pros. Atty., Wayne County, Detroit, for appellee.

Before LESINSKI, C.J., and FITZGERALD and McGREGOR, JJ.

LESINSKI, Chief Judge.

The defendant, Charles Stewart, was charged in a criminal information with robbery not armed, C.L.1948, § 750.530 (Stat.Ann.1954 Rev. § 28.798), and when he stood mute the court directed a plea of not guilty to be entered and ordered the defendant to be held for trial. On November 1, 1966, an added count of attempted robbery not armed, C.L.1948, § 750.92 (Stat.Ann.1962 Rev. § 28.287), and C.L.1948, § 750.530, supra, was filed. On November 3, 1966, the defendant, represented by counsel, plead guilty to the added count of attempted robbery not armed. The defendant was sentenced on November 28, 1966.

On appeal, among other errors in the proceedings below, defendant contends that the trial judge failed to comply with the mandatory provisions of C.L.1948, § 768.35 (Stat.Ann.1954 Rev. § 28.1058), ¹ and G.C.R. 1963, 785.3(2), ² when he accepted the plea of guilty, and that the court did not adequately inform him of the sentence which he is to serve.

The defendant was sentenced to serve 'a minimum term of not less than three years and a maximum term of not more than five years.' The plain import of this language sets the minimum sentence at three years. In addition, we note that such advice bears no relation to the phrase 'consequence of his plea' as used in GCR 1963, 785.3(2). People v. White (1967), 8 Mich.App. 220, 154 N.W.2d 1.

The defendant also contends that he did not understand the nature of the charge to which he was pleading guilty. An examination of the record reveals the following colloquy:

'The Court: Then you want to stand trial?

'Defendant: I want to plead guilty to attempt unarmed robbery.

'The Court: You want to plead guilty to attempt?

'Defendant: Yes, attempt.'

This colloquy leaves no room for doubt that the defendant knew the charge to which he was offering to plead guilty.

The trial judge has an even greater duty than merely insuring that the defendant knows and understands the nature of the charge to which he is pleading; the trial judge must also ascertain the truth of the offered plea. It is this duty which is dispositive of this appeal. The plain language of the statute requires the trial judge to investigate the circumstances of the offense 'and whenever said judge shall have reason to doubt the truth of such plea of guilty, it shall be his duty to vacate the same, direct a plea of not guilty to be entered and order a trial of the issue thus formed.' (Emphasis supplied.)

The record contains several warnings to the trial court that he might have reason to suspect the truth of the offered plea. During the defendant's narration of the events which took place, the following oral exchange between the court and the defendant occurred:

'Defendant: When we got to the bar, Lowe got out a gun, and the other defendant jumped on him and started to knock him back in the car, and took his wallet and watch.

'The Court: You knew this was going to happen?

'Defendant: I didn't know it was going to happen. * * *

'The Court: You are representing to the court you had nothing to do with and did not plan this assault on the complaining witness, for the purpose of taking away his property without his knowledge or consent; is that what you want to tell the court?

'Defendant: Well, yes; I guess so.'

Then following a discussion between the court, the prosecutor, and the defendant, during which the defendant stated his desire to plead guilty to attempted robbery unarmed, the following exchange occurred:

'The Court: But the point is you are representing to the court that you had nothing to do with it, that you didn't make any agreement with this other chap to try to rob this man and you had nothing to do with it, and that the only thing that you had to do with it is that you accepted a watch after the offense had been committed; so that you might be guilty of some other offense, but not of this one. Now, if that is what it is, I can't accept your plea, and you will have to stand trial on the original charge. If you want to tell the court what actually happened and how you participated in it, that is another story. This is your time to tell the court the truth.

'Defendant: Yes, I am.'

Whereupon the defendant and his counsel asked for and received permission to have a short conference following which, the narration resumed:

'The Court: Let the record show that the defendant here has conferred with his counsel for the past three minutes.

'Now that you have had this opportunity of discussing this again with your lawyer, is there anything further that you want to say to the court?

'Defendant: Yes. When Bill Young, the other defendant, started to jump on the complainant, Jack Lowe was the car...