People v. Taylor

• Citation: 387 Mich. 209,195 N.W.2d 856
• Decision Date: 06 April 1972
• Docket Number: A,No. 24,24
• Parties: The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert TAYLOR, Defendant-Appellant. pril Term 1971.
• Court: Supreme Court of Michigan

Page 856

195 N.W.2d 856

387 Mich. 209

The PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert TAYLOR, Defendant-Appellant.

No. 24, April Term 1971.

Supreme Court of Michigan.

April 6, 1972.

William L. Cahalan, Prosecuting Atty., Dominick R. Carnovale, Chief, Appellate Dept., Arthur N. Bishop, Asst. Prosecuting Atty., Detroit, for plaintiff-appellee.

State appellate defender's office, by Jane Burgess, Detroit, for defendant-appellant.

Before the Entire Bench.

WILLIAMS, Justice.

Two issues are dispositive in this case. The first issue is whether review of a guilty plea must begin in the trial court before being heard in the appellate courts. The second issue is whether the trial judge in this case met the standards of Court Rule No. 35A (1945) and People v. Barrows, 358 Mich. 267, 99 N.W.2d 347 (1959) in taking a 1960 guilty plea. ¹

The facts of the originally charged offense, breaking and entering a business place in the night time with intent to commit a larceny, have no significance to this case on appeal. Defendant pled guilty in Detroit Recorder's Court to a specially added count of breaking and entering in the daytime, March 14, 1960.

On March 28, 1960, defendant was placed on one year's probation plus $100 costs and $100 restitution. On April 4, 1961, after the year's probation was over, defendant's probation was extended one year to March 28, 1962, because practically nothing had been paid on the account.

On July 6, 1961, a warrant for probation violation was issued, after a notice of probation violation was presented with warrant for arrest because defendant had violated his probation conditions in two respects. Defendant had moved without notifying the Probation Department. Defendant had been named as a defendant in a robbery armed charge. Defendant stated the probation officer told him 'I am going to violate you the next time you come down here with no money. So I never came back again. This was in the year 3--29--1961.'

By his own admission defendant absconded to California in 1963. On December 2, 1964, he was sentenced to prison there for robbery armed and was not released until July 23, 1968.

Defendant jumped parole in California and returned to Michigan. He was soon picked up, charged with probation violation, his probation revoked and on November 14, 1968, sentenced to 4 1/2 to 5 years in prison.

Defendant pro se and defendant's assigned counsel filed separate pleadings. Defendant's pleadings pro se may be quickly disposed of. On December 20, 1968, defendant pro se filed habeas corpus in the Court of Appeals from Jackson prison. At the same time he requested counsel as an indigent, which was granted February 3, 1969. On February 26 ,1969, he requested leave to appeal. In July, 1969, the habeas corpus writ, treated as a delayed appeal, was denied without prejudice in favor of pleadings by duly appointed counsel.

Defendant's counsel attempted to file a claim of appeal, May 23, 1969, but it was returned by the Court of Appeals Clerk May 29, 1969, with a letter advising of the pendency of an application for delayed appeal by the defendant In propria persona and that 'a judgment of probation violation is not appealable as a matter of right,' citing Calhoun v. Macomb County Judge, 15 Mich.App. 416, 166 N.W.2d 657 (1968). (See footnote 5.) The court file shows a letter dated june 30, 1969, from defense counsel of an intention to file a supplemental writ of habeas corpus, but the actual writ seems not to have been filed.

The definitive pleadings begin with defense counsel's motion filed in the Court of Appeals March 31, 1970, for superintending control. It is based on two grounds, the failure of the court in the plea-taking to ascertain the facts of defendant's participation in the crime--Court Rule No. 35A (1945), and the lack of a legal waiver of trial by jury. The People moved to dismiss on the basis first that 'superintending control (mandamus) cannot be used in lieu of appeal in probation matters in which appellate courts do not interfere in the absence of flagrant violation of constitutional rights' and second 'an incarceratory sentence cannot be used as a collateral attack on an unchoate and long delayed original probation order.' The People filed a reply brief on the same day with the same arguments. On May 5, 1970, the People filed a supplemental brief in support of their motion to dismiss addressed to the proposition that a trial judge may amend a probation order at any time within the statutory 5 years plus the time the statute is tolled by an absconding probationer. On May 15, 1970, defendant's counsel filed an argumentative answer to the motion to dismiss.

On June 5, 1970, the Court of Appeals, treating the complaint for superintending control 'as an application for delayed appeal pursuant to GCR 1963, 711.4(2),' ordered such application 'denied for lack of merit in the grounds presented' and consequently the motion to dismiss was denied as moot. On September 22, 1970, this Court granted leave to appeal.

I--Should Review of Guilty Pleas Begin in the Trial Court

The question of whether review of guilty pleas should begin in the trial court appears to be one of first impression in this Court.

There are several types of requests for review which arise from pleas of guilty. One such type relies on facts not contained in the record. Often involved are allegations contradicting the voluntariness of the plea. Logically matters of this type must be reviewed in the trial court because it requires fresh testimony not a matter of prior record.

There is one order if this Court which specifies that where the voluntariness of a plea of guilty is involved requiring evidence not on the record, that case should begin in the trial court. The order of this Court in People v. Kenneth Carlton Jr., Supreme Court No. 51240, was as follows:

'The People of the State of Michigan, Plaintiff,

vs.

Kenneth Carlton Jr. Defendant.

51240

'In this cause an application is filed by defendant for leave to appeal from the order of the court of appeals denying leave to take a delayed appeal, and an answer in the nature of affidavits having been filed by plaintiff, On Order of the Court, the application for leave to appeal from the court of appeals is considered and the same is DENIED for the reason that no justification therefor is presented. The cause is REMANDED to the circuit court of Bay county to assume jurisdiction and to make a determination upon a separate record of the voluntariness of the written confession and of the plea of guilty made by petitioner on December 20, 1960. At this hearing, after due notice to the prosecuting attorney, the defendant Carlton may take the stand and testify for the limited purpose of making of record his version of the facts and circumstances under which the confession was obtained and the plea of guilty made. By so doing, the defendant does not waive his right to decline to take the stand on trial in chief, if retrial is ordered, nor does he waive any of the other rights stemming from his choice not to testify.

'If the trial judge, on the basis of the hearing and record made before him, determines that the plea of guilty was involuntarily made, he shall enter an order vacating the sentence and the plea of guilty and the defendant shall be rearraigned and required to plea anew to the information. The said order shall constitute a final judgment for purposes of review.' July 15, 1965.

In commenting on this order in People v. Carlton, 5 Mich.App. 20, 23, 145, N.W.2d 853, 855 (1966), the Court of Appeals said:

'The Supreme Court remanded the case to the trial court to determine the voluntariness of defendant's confession and his plea of guilty. The lower court was instructed to vacate the sentence and plea of guilty, if, after hearing, he determined that the plea was involuntarily made. The order also provided that the order of the lower court would constitute a final judgment for purposes of review.'

See also People v. Horvath, 25 Mich.App. 649, 650, 181 N.W.2d 646, 647 (1970): '. . . the proper forum for entertaining a post-plea allegation of involuntariness not supported by the record is the trial court.' People v. Dorner, 24 Mich.App. 306, 308, 180 N.W.2d 201 (1970); People v. Smith, 20 Mich.App. 307, 308, 174 N.W. 8 (1969).

There are other modern cases involving the review of the voluntariness of a guilty plea with facts outside the record in which review was begun in the trial court, though the issue of where such review should begin was not raised. See People v. Williams, 386 Mich. 277, 192 N.W.2d 466 (1971); People v. Johnson, 386 Mich. 277, 192 N.W.2d 482 (1971); People v. Goldman, 245 Mich. 578, 223 N.W. 124 (1929); People v. Williams, 225 Mich. 133, 195 N.W. 818 (1923); People v. Taylor, 383 Mich. 338, 175 N.W.2d 715 (1970); ² People v. Kobrzycki, 242 Mich. 44, 217 N.W. 782 (1928). ³ See also People v. Bumpus, 355 Mich. 374, 95 N.W.2d 854 (1959) where there was both the question of voluntariness of the plea including allegations outside the record and the constitutional question of right to counsel. People v. Skropski, 292 Mich. 461, 290 N.W. 869 (1940). In People v. Vasquez, 303 Mich. 340, 6 N.W.2d 538 (1942) the motion to withdraw was largely bottomed on an affidavit that the sheriff advised 'the best thing for me to do was to waive examination and plead guilty . . . my punishment would be placed on probation . . .' (303 Mich. 340, 342, 6 N.W.2d 538).

There is little question that the old practice was to review guilty pleas by writ of error to the Supreme Court, even in the 'voluntary' cases. Edwards v. People, 39 Mich. 760 (1878); Henning v. People, 40 Mich. 733 (1879); Clark v. People, 44 Mich. 308, 6 N.W. 682 (1880); People v. Ferguson, 48 Mich. 41, 11 N.W. 777 (1882); People v. Coveyou, 48 Mich. 353, 12 N.W. 200 (1882); People v. Lepper, 51 Mich. 196, 16 N.W. 377 (1883); People v. Ellsworth, 68 Mich. 496, 36 N.W. 236 (1888)...