People v. Temple

• Decision Date: 08 May 1970
• Docket Number: No. 2,Docket No. 7833,2
• Citation: 23 Mich.App. 651,179 N.W.2d 200
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James Gary TEMPLE, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 200

179 N.W.2d 200

23 Mich.App. 651

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James Gary TEMPLE, Defendant-Appellant.

Docket No. 7833.

Court of Appeals of Michigan, Division No. 2.

May 8, 1970.

Released for Publication Sept. 11, 1970.

Frederick G. Buesser, III, Buesser, Buesser, Snyder & Blank, Bloomfield Hills, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Thomas G. Plunkett, Jr., Pros. Atty., for plaintiff-appellee.

Before J. H. GILLIS, P.J., and DANHOF and O'HARA, ^* JJ.

O'HARA, Judge.

This is an appeal of right from an order of the circuit court denying leave to withdraw a plea of guilty after sentence.

On October 7, 1968, defendant, represented by counsel, entered his plea of guilty of the offense of larceny from an automobile. M.C.L.A. § 750.356a (Stat.Ann.1954 Rev. § 28.588(1). He was sentenced to 3--5 years. On January 6, 1969, he filed his motion. It was supported by an information-and-belief based affidavit of his appointed appellate counsel. The thrust of the motion is that he pleaded guilty only because there was at the time of the acceptance of his plea, in the possession of the police and prosecuting attorney, inculpatory '* * * That the Defendant's plea of guilty was not properly obtained, made, given or accepted, to wit: (The following allegations being made on information and belief)

statements which he believed would have incontestably established guilt. He contends these statements were obtained in violation of his constitutional rights. The affidavit supporting his motion in pertinent part recites:

'On June 27, 1968, the Defendant was incarcerated in the Oakland County jail for a term of six months as a result of proceedings in no way connected with those presently before the Court. Between June 27, 1968 and July 10, 1968, while Defendant was incarcerated in the Oakland County jail, officers of the Ferndale Police Department, including Captain Gary interrogated the Defendant in the jail concerning the subject matter of the present proceedings. Captain Gary further advised the Defendant that he would see that the Defendant got a light sentence if he made a statement and plead guilty. He further told the Defendant that if he did not plead guilty he would be charged with the additional offense of possession of stolen property and that David Stuart would testify against him. Captain Gary indicated to the Defendant that he could have a lawyer when formal charges were made.

'On July 10, 1968, a Complaint was issued in Ferndale Municipal Court and the Defendant was arraigned thereon on that date. Relying on the representations made by the Ferndale Police Department, and without the benefit of counsel, the Defendant made a full and complete statement at the time of the arraignment and waived his right to a preliminary examination.

'On July 25, 1968, the Defendant was arraigned in Oakland County Circuit Court before the Honorable James S. Thorburn who appointed James G. Hartrick, Attorney at Law, to represent the Defendant and adjourned the arraignment. On September 5, 1968, the arraignment in this cause was finally held before the Honorable James S. Thorburn, Attorney Hartrick was again appointed and his appearance filed. On September 5, 1968, the Defendant for the first time consulted with an attorney. Prior to that date, he had without knowledge as to his right to have counsel present during interrogation, made a statement to the Ferndale Police Department and had on October 8, 1968, had given incriminating testimony against the aforesaid David Stuart at a preliminary examination again without the advice of an attorney and without knowledge of his right to have said attorney present.

'On October 7, 1968, the Defendant entered a plea of guilty to the charge made against him, said plea being a direct result of the fact that incriminating statements and sworn testimony had previously been improperly obtained by the Ferndale Police Department and the Oakland County Prosecutor's office.

'As a consequence of the aforesaid conduct, the plea made on October 7, 1968, was made and accepted in violation of the Defendant's right to remain silent, violation of his right to counsel, violation of his right to due processes of law and in violation of his right to a fair trial by an impartial jury.

'WHEREFORE, Defendant prays that his plea of guilty heretofore made on October 7, 1968 be set aside and that a new trial be granted.'

We set forth the proceedings attendant the acceptance of the plea verbatim:

'Plea of Guilty--October 7, 1968

'Alex McGarry: In the matter entitled CR 68--3825, the People of the State of Michigan vs. James Gary Temple, on a charge of larceny from an automobile. Today being the date set for trial, the People are ready to proceed to trial.

'Louis Fairbrother: May it please the Court, my name is Louis Fairbrother. I am here on behalf of James Hartrick, who was appointed to represent him. Mr. Hartrick is out of town today.

'I have discussed this matter with Mr. Temple on three different occasions. At this time he wishes to enter a plea on this matter.

'The Court: Now, you understand that you are entitled to the services of Mr. James Hartrick, who was appointed as your counsel? Mr. Fairbrother and Mr. Hartrick are associated. Are you satisfied to be represented by Mr. Fairbrother? Do you want him appointed in Mr. Hartrick's place?

'Respondent: Yes, sir.

'The Court: This is agreeable to you?

'Respondent: Yes, sir, it is.

'The Court: In that event, the Court must inquire of you as to the basis--I understand you have discussed this matter thoroughly with both Mr. Fairbrother and Mr. Hartrick?

'Respondent: Yes, sir, I have.

'The Court: They have advised you of your constitutional rights?

'Respondent: Yes, sir.

'The Court: Now, are you aware you have a right to trial by jury?

Respondent: Yes, your Honor.

'The Court: Do you know what a trial by jury is?

'Respondent: Yes, sir, I do.

'The Court: How far did you go in high school?

'Respondent: I finished the 10th grade.

'The Court: Can you read, write and understand the English language?

Respondent: Yes, sir.

'The Court: You are charged with the crime of larceny from a motor vehicle. I take it this is the charge, Mr. McGarry?

'Mr. McGarry: That is correct, your Honor.

'The Court: Mr. Fairbrother, that is the charge?

'Mr. Fairbrother: That is correct, your Honor.

'The Court: As a result of this plea of guilty do you realize you could be sentenced to a maximum of five years in prison?

Respondent: Yes, sir, I do.

'The Court: Is the plea you are about to make freely, understandingly and voluntarily made?

'Respondent: Yes, sir, it is.

'The Court: Has anybody used any undue influence, compulsion or duress to force you to plead guilty?

'Respondent: No, sir.

'The Court: Has anyone promised you anything?

'Respondent: No, sir.

'The Court: Has anybody told you your sentence would be more lenient if you plead guilty?

'Respondent: No, sir.

'The Court: You are pleading guilty because you are guilty?

'Respondent: Yes, sir.

'The Court: The Information in the case charges that on or about the 23rd day of June, 1968, that you committed the crime of larceny from a motor vehicle, to-wit, a 1968 Oldsmobile, bearing serial number 344878, 281065, owned by Key Oldsmobile, Inc., by then and there feloniously removing, stealing, taking and carrying away from the automobile Now, did you do those things?

and possession of said Key Oldsmobile, Inc., an engine, No. QW--8337896, contrary to the statute.

'Respondent: Yes, sir, I did.

'The Court: Would you just tell us in your own words how you accomplished this?

'Respondent: Well, we removed the car from Key Oldsmobile lot to a garage.

'The Court: Who is 'we'? Who was with you?

'Respondent: David Stewart.

'The Court: David Stewart?

'Respondent: Yes.

'The Court: And yourself, and who else?

'Respondent: That's all.

'The Court: Just the two of you?

'Respondent: Yes.

'The Court: You took the car?

'Respondent: Yes.

'The Court: Did you break into the lot? How did you get in it?

'Respondent: The lot was open, sir.

'The Court: Was it at night or the daytime?

'Respondent: It was in the daytime.

'The Court: How did you drive the car away? Was the key in it?

'Respondent: I had a key for it?

'The Court: Was it a master key?

'Respondent: Well, I was working at the place at the time.

'The Court: So you knew this key fitted that car?

'Respondent: Yes, sir, I did.

'The Court: Where did you drive it to?

'Respondent: To a garage in Ferndale.

'The Court: Then what did you do there?

'The Respondent: Took the parts off of it.

'The Court: Did the parts include the engine?

'Respondent: Yes, sir.

'The Court: You took the engine out?

'Respondent: Yes, sir.

'The Court: What did you do with the engine?

'Respondent: Put it in my car.

'The Court: The Court is satisfied that your plea is lawfully made, and your plea of guilty is accepted.

'This matter will be referred to the Oakland County Probation Department for investigation and report back to the Court. Sentence will be imposed on October 31, 1968, a Thursday, at 9:00 A.M. Bond will be continued.'

The precise point raised by this appeal has not yet been passed upon in our state. It has commanded the attention of several state courts of last resort. It was the subject of an en banc hearing in the Second Circuit Court of Appeals. Certiorari was granted and the issue was argued before the U.S. Supreme Court February 24, 1970. Decision by that court impends. ^* May a guilty plea by an accused, represented by counsel, stand as against an after-made allegation that the plea was directly induced by the existence of an illegally obtained confession in the possession of the police at the time the plea was made?

The question in its broadest term is:

We forego a case by case analysis of the various holdings. We include an addendum to this opinion which furnishes to the bench and bar a collation of the authorities we have examined. We...