People v. Wilson

• Decision Date: 22 December 1966
• Docket Number: No. 1500,No. 2,1500,2
• Citation: 146 N.W.2d 826,5 Mich.App. 428
• Parties: The PEOPLE of the State of michigan, Plaintiff-Appellee, v. Larry Andrew WILSON, Defendant-Appellant. Cal
• Court: Court of Appeal of Michigan — District of US

Page 826

146 N.W.2d 826

5 Mich.App. 428

The PEOPLE of the State of michigan, Plaintiff-Appellee, v. Larry Andrew WILSON, Defendant-Appellant.

Cal. No. 1500.

Court of Appeals of Michigan, Division No. 2.

Dec. 22, 1966.

Max R. Murphy and John R. Stump, of Glassen, Parr, Rhead & McLean, Lansing, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Donald L. Reisig, Pros. Atty., Ingham County, Lansing, for appellee.

Before QUINN, P.J., and McGREGOR and N. J. KAUFMAN ^*, JJ.

QUINN, Presiding Judge.

July 2, 1965, without counsel, defendant pleaded guilty in Ingham county circuit court to a charge of breaking and entering with intent to commit larceny in an occupied dwelling in violation of C.L.1948, § 750.110, as amended by P.A.1964, No. 133 (Stat.Ann.1965 Cum.Supp. § 28.305). July 29, 1965, defendant was sentenced to state prison for southern Michigan for a term of 3 to 15 years. He was then advised of his right to appellate review, of his right to counsel and transcript at public expense for the purpose of postconviction proceedings and appellate review, and of the time limit for requesting same. He was tendered 3 copies of forms to be filed by him to obtain counsel and transcript, but he declined the assistance and refused the forms. Defendant was then 18 years of age. September 24, 1965, defendant filed petition for counsel and transcript, and counsel was appointed October 15, 1965 and transcript was ordered November 3, 1965. Claim of appeal from the judgment of July 29, 1965 was filed November 5, 1965.

The sole question on this appeal is stated by defendant as follows:

'Where an indigent, minor defendant is charged with a felony, should a circuit court judge appoint counsel to represent said defendant at the arraignment in order to assure due process of law as guaranteed by the 5th and 14th amendments of the Constitution of the United States?'

In support of an affirmative answer to this question, defendant relies on People v. Atkins (1966), 2 Mich.App. 199, 139 N.W.2d 325, but the question was neither raised nor ruled on in Atkins. The other authorities relied on by defendant to support his position did not involve the question here posed. Our research has disclosed no authority to support defendant's position, and without authority to sustain the position, we decline to adopt it as the law of this state.

While the record before us has the same deficiency that was one of the reasons for the decision in Atkins, supra, namely: failure of the record to disclose that defendant was given an opportunity to request counsel, we feel bound by GCR 1963, 813.1, which provides in part:

'Ordinarily no point will be...