People v. Wade

• Citation: 180 N.W.2d 349,24 Mich.App. 518
• Decision Date: 23 June 1970
• Docket Number: No. 1,Docket No. 6958,1
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert L. WADE, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 349

180 N.W.2d 349

24 Mich.App. 518

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Robert L. WADE, Defendant-Appellant.

Docket No. 6958.

Court of Appeals of Michigan, Division No. 1.

June 23, 1970.

Released for Publication Oct. 26, 1970.

Leave to Appeal Denied Sept. 22, 1970.

Carl Levin, Arthur J. Tarnow, Legal Aid and Defender Assn., Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Arthur N. Bishop, Asst. Rpos. Atty., for plaintiff-appellee.

Before T. M. BURNS, P.J., and HOLBROOK and BRONSON, JJ.

T. M. BURNS, Presiding Judge.

Defendant was charged, along with others, with the crime of armed robbery (M.C.L.A. § 750.529 (Stat.Ann.1969 Cum.Supp. § 28.797)). He was arraigned along with the others on August 31, 1967, at which time the information was read to him in presence of counsel. On October 24, 1967, defendant represented by his appointed counsel, appeared in Recorder's Court before Judge George W. Crockett, Jr., along with co-defendant Ronald Dent. Both defendants tendered pleas of guilty to the lesser included offense of assault with intent to commit robbery armed (M.C.L.A. § 750.89 (Stat.Ann.1962 Rev. § 28.284)). Following an examination of co-defendant Dent and acceptance of his guilty plea, the court examined defendant Wade.

The testimony of the hearing at which defendant pled guilty is as follows:

'Mr. Gold: I have had several discussions with Mr. Wade and his mother. He wishes to withdraw his original plea of Not Guilty and offer a plea of Guilty-withdraw his plea of Not Guilty to the original charge of Robbery Armed, and offer a plea of Guilty to the lesser and included offense of Assault with Intent to Commit Robbery Armed.'

'The Court: Mr. Wade, you understand if I accept this plea you could be given a sentence up to life imprisonment?

'Defendant Wide: Yes.

'The Court: Has anyone made any threats or promises to get you to plead Guilty?

'Defendant Wade: No.

'The Court: Why do you want to plead Guilty?

'Defendant Wade: Because I am guilty.

'The Court: What did you do?

'Defendant Wade: Robbed a bar.

'The Court: Tell me about it.

'Defendant Wade: We was over my friend's house and he suggested that we go get some money. So we was riding around, and--

'The Court: (Interposing) So you did what?

'Defendant Wade: We was riding around. And we came past this bar on Twelfth and Lafayette and he suggested, you know, that we go in and rob it. So we all walked in and I walked up to the bar and said it was a hold-up. And I went over the bar and it was a drawer and I took some money out of the drawer.

'The Court: That was here in Detroit?

'Defendant Wade: Yes.

'The Court: Were any people in the bar?

'Defendant Wade: Sir?

'The Court: Were there any people in the bar?

'Defendant Wade: Yes.

'The Court: What did you people do?

'Defendant Wade: One of the guys who--one of the guys threw something and--at one of my friends that was in the bar with me.

'The Court: The Court will accept the plea.'

On December 11, 1967, Wade and Dent, with their respective counsel, appeared for their sentencing. The court pronounced sentence of 15 to 25 years imprisonment for Wade, and also Dent. A motion to withdraw the plea and for new trial was denied by the trial court on December 27, 1967. The appeal to this Court is of right.

There are two issues with which we must concern ourselves. One: Was defendant informed of the consequences of his plea as required by general court rule 785.3? Two: Did the examination of defendant at the time of his plea establish the crime to which he pleaded guilty?

Defendant asserts on appeal that the court failed to advise the defendant that by entering his guilty plea, he was waiving his right to jury trial or court trial as required by GCR 1963, 785.3, and such failure is reversible error.

We consider that the colloquy between the court and defendant was sufficiently extensive to inform the defendant of the consequences of his plea.

'The Court: Mr. Wade, you understand if I accept this plea, you could be given a sentence up to life imprisonment?

'Defendant Wade: Yes.'

The question of voluntariness was brought in too, with distinct adequacy. The defendant was asked precisely what he did, and he told the court about himself and his friends wanting money and going to the bar, and stating that 'it was a holdup'. The defendant further stated that he (Wade) took money out of a drawer in the bar.

The procedure regarding acceptance of guilty pleas has been set forth in GCR 1963, 785.3 and M.C.L.A. § 768.35 (Stat.Ann.1954 Rev. § 28.1058). The requirements have been interpreted by the Supreme Court and Court of Appeals to include an examination of the defendant to establish the crime and defendant's participation therein whether or not defendant is represented by counsel. The failure to make such an examination constitutes grounds for setting aside the plea of guilty. People v. Barrows (1959), 358 Mich. 267, 99 N.W.2d 347; People v. Carlisle (1969), 19 Mich.App. 680, 684, 173 N.W.2d 240; People v. Johnson (1966), 2 Mich.App. 182, 139 N.W.2d 137; People v. Perine (1967), 7 Mich.App. 292, 151 N.W.2d 876; and People v. Mason (1968), 13 Mich.App. 277, 164 N.W.2d 407. But see People v. Moore (1970), 21 Mich.App. 150, 175 N.W.2d 38. Also, where the defendant's responses during such an examination give reason to doubt the truth of the plea, the court may not accept said plea. People v. Johnson (1967), 8 Mich.App. 204, 154 N.W.2d 16; People v. Stewart (1968), 10 Mich.App. 553 157 N.W.2d 327; People v. Mason (1968), 13 Mich.App. 277, 164 N.W.2d 407.

The first issue raised by defendant on appeal is in essence the prejudicial effect, if any, of the failure of the trial court judge to inform defendant of his right to a jury trial when defendant was represented by counsel. Although People v. Totty (1968), 10 Mich.App. 462, 157 N.W.2d 330 held otherwise, another panel of this Court held, in People v. La Roe (1969), 18 Mich.App. 262, 170 N.W.2d 902, that GCR 1963, 785.3(1), which (in part) requires the court to advise defendant 'he is entitled to a trial by jury', has no application where the defendant was represented by counsel. The opinion by Judge Quinn, in which Chief Judge Lesinski and Judge Danhof concurred, in effect, accepted the same interpretation as held by Judge Robert B. Burns who dissented in People v. Totty, Supra, 10 Mich.App. p. 467, 157 N.W.2d 330. Since there has been no Michigan Supreme Court decision on this exact point to this interpretation of GCR 1963, 785.3(1), we are free to adopt either Totty or La Roe. Although we would prefer to have the defendant over-advised as to his rights rather than unadvised, we do not consider the likelihood of prejudice to the defendant very great under the circumstances present here as to issue one. Therefore, we adopt the holding in the La Roe case for our own here.

With respect to the second issue raised, defendant argues that the examination did not establish the crime to which defendant pleaded guilty. It is defendant's position that there was a failure to establish that he was armed or that he was aware that his companions were armed; and therefore, defendant concludes the court improperly accepted his plea to the crime of assault with intent to commit robbery armed.

While the court is required, whether defendant is represented by counsel or not, to conduct an examination into the truth of the plea, the form and manner of such examination lies within the discretion of the judge; and it is to be exercised in the manner best suited tio the parties and the offense. People v. Barrows, Supra; People v. Bumpus (1959), 355 Mich. 374, 94 N.W.2d 854; People v. Schwartz (1967), 6 Mich.App. 581, 149 N.W.2d 897; and People v. Gill (1967), 8 Mich.App. 89, 153 N.W.2d 678. During this examination of one seeking to enter a plea of guilty, the prosecution is under no obligation to prove anything. People v. Paul (1968), 13 Mich.App. 175, 163 N.W.2d 803. Indeed, the judge need only satisfy himself that the plea was made freely and understandingly with knowledge of its consequences and without undue influence or promise of leniency. We find no abuse of discretion here.

Furthermore, when one seeks to set aside a plea of guilty, he:

'* * * has the burden of showing more than technical noncompliance with a rule. Absent a showing of violation or denial of constitutional rights, he has the obligation of alleging * * * such facts as would, if true, substantiate a finding that there was noncompliance which resulted in a miscarriage of justice.' People v. Winegar (1968), 380 Mich. 719, 733, 158 N.W.2d 395, 402.

See also People v. Dunn (1968), 380 Mich. 693, 701, 158 N.W.2d 404, wherein the Court stated:

'In conclusion, we cite again the court rule and statute cited in People v. Winegar (1968) 380 Mich. 719, 158 N.W.2d 395; GCR 1963, 529.1 and C.L.1948, § 769.26 (Stat.Ann.1954 Rev. § 28.1096). The import of both the rule and the statute is that On review courts should be concerned with substance, not with form; that the fundamental inquiry is whether there has been a miscarriage of justice.' (Emphasis added).

Defendant does not contend that he was unarmed or was unaware of anyone else being armed during the robbery; indeed defendant does not even allege he was innocent of the criminal charge for which he was convicted. Rather, defendant merely asserts that the record fails to disclose the presence of weapons. Such an assertion of technical noncompliance without any assertion of being unarmed or of being unaware of anyone else being armed does not establish a showing of miscarriage of justice as is required under the cases handed down by our Supreme Court. See People v. Stearns (1968), 380 Mich. 704, 158 N.W.2d 409; People v. Dunn, Supra; People v. Winegar, Supra.

In addition, there is no showing defendant was unaware of the...