People v. Winegar

• Decision Date: 08 May 1968
• Docket Number: No. 4,4
• Citation: 158 N.W.2d 395,380 Mich. 719
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellant, v. William WINEGAR, Defendant-Appellee.
• Court: Michigan Supreme Court

Page 395

158 N.W.2d 395

380 Mich. 719

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. William WINEGAR, Defendant-Appellee.

No. 4.

Supreme Court of Michigan.

May 8, 1968.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Donald L. Reisig, Pros. Atty., Ingham County, James R. Ramsey, Asst. Pros. Atty., Ingham County, Lansing, Cochran, Vander Ploeg & Grimm, Muskegon, for plaintiff-appellant.

White, Spaniola, Knudsen & Stariha, Muskegon, for defendants-appellees.

Erwin Ellmann, General Counsel, Norton J. Cohen, Legal Director, Detroit, for American Civil Liberties Union of Michigan, amicus curiae; Edward Wise of the New York Bar, of counsel.

Before the Entire Bench, except DETHMERS, C.J.

BRENNAN, Justice.

Defendant, William Winegar, is in prison serving a life sentence. He was convicted upon his plea of guilty on November 17, 1961, to a charge of assault with intent to commit murder, in violation of P.A.1931, No. 328, § 83 (C.L.1948, § 750.83 (Stat.Ann. § 28.278)).

On January 29, 1965, William Winegar, through his attorney, filed a motion to withdraw his plea of guilty. On March 26, 1965, the trial court rendered an opinion denying the motion to withdraw the plea. An amended motion was filed April 6, 1965, and an order denying the motion and the amended motion was entered April 26, 1965. An appeal was taken to the Court of Appeals, which reversed the trial court and the matter is here on leave granted. 4 Mich.App. 547, 145 N.W.2d 257.

This appeal represents a broadside attack on Winegar's conviction. It raises a number of questions, some of which are important to the administration of criminal justice in this State.

The facts necessary to decision of each issue are recited in connection with our discussion of each issue.

I WHETHER DEFENDANT WAIVED HIS CONSTITUTIONAL RIGHT TO THE ASSISTANCE OF COUNSEL?

The record of Winegar's appearances before Ingham county circuit judge Marvin J. Salmon is quoted in full:

ARRAIGNMENT--NOVEMBER 3, 1961

'MR. DETHMERS: Let the record show that this is the Arraignment of William Winegar, alias William Winegarden.

'THE COURT: Mr. Winegar.

'MR. DETHMERS: Are you Mr. William Winegar?

'THE RESPONDENT: Yes.

'MR. DETHMERS: Otherwise known as William Winegarden?

'THE RESPONDENT: That is, the first time I ever saw that was in the newspaper.

'MR. DETHMERS: I see. (Read the Information, charging a violation of Sec. 83, Act 328, etc.)

'THE COURT: Do you understand the charge, Mr. Winegar?

'DEFENDANT: Yes, sir, I do.

'THE COURT: The Court wishes to advise you that you are entitled to be represented by a lawyer and if you are not financially able to employ one and will so advise the Court, the Court will see that you have a lawyer. Do you understand that?

'DEFENDANT: Yes, sir. But they have impounded all my money.

'THE COURT: Well, you understand what I just said to you?

'DEFENDANT: Yes.

'THE COURT: The Court also wishes to inform you that you are entitled to have a trial either before a jury or before the Court without a jury. Do you also understand that?

'DEFENDANT: Yes.

'THE COURT: How do you wish to plead, guilty or not guilty?

'DEFENDANT: I have no contest of it. I don't wish to contest it at all.

'THE COURT: How do you wish to plead, guilty or not guilty?

'DEFENDANT: I am stuck in Ohio, too.

'THE COURT: Will you just answer my question, please. Do you wish to plead guilty or not guilty?

'DEFENDANT: I plead guilty I guess, I don't know.

'THE COURT: You mean you don't know. What is it you don't know?

'DEFENDANT: I don't understand the laws at all in this State, your Honor. I mean in Ohio where I come from they are entirely different.

'THE COURT: Well you have had this charge read to you and you are entitled to plead guilty or not guilty or you may stand mute. Now whatever you wish to do is up to you.

'THE DEFENDANT: Well, I prefer to stand mute then.

'THE COURT: Very well, then a plea of not guilty will be entered by the Court and you are remanded to the custody of the county sheriff to await trial.

'All right.'

Two weeks later, the defendant was again brought before the circuit judge, and the following transpired:

'ARRAIGNMENT PROCEEDINGS ON NOVEMBER 17, 1961

'THE COURT: Wine-e-gar. Mr. Winegar, you were before the Court on the 3d day of November, 1961, The Court then advised you of your rights, at which time you said you preferred to stand mute and the Court entered a plea of not guilty for you. Now it is your desire, as I understand, to plead guilty, is that correct?

'THE DEFENDANT: Yes, your Honor.

'THE COURT: And that is what you are doing now, is pleading guilty to this offense?

'DEFENDANT: Yes.

'THE COURT: Has anyone made you any promise of any kind to induce you to plead guilty?

'DEFENDANT: No.

'THE COURT: Has anyone stated to you that if you would plead guilty he would secure leniency from the Court?

'DEFENDANT: No.

'THE COURT: Then you are pleading guilty because you actually are guilty?

'DEFENDANT: Yes.

'THE COURT: Very well, I will talk with him. (Conference in chambers).

'THE COURT: Let the record show that the Court has conferred with Mr. Winegar relative to the circumstances of the crime, is convinced that he committed the crime, that his plea was freely, understandingly and voluntarily made without undue influence, compulsion, or duress, and without promise of leniency. Therefore, his plea is accepted and he is remanded to the custody of the county sheriff to await sentence. That is all.'

On the 4th of January, 1962, defendant appeared in court for sentencing. The record shows that this is what transpired:

'THE COURT: Are you Mr. Winegar?

'THE RESPONDENT: Yes, sir.

'THE COURT: You are here for sentence this morning, Mr. Winegar. Is there anything you have to say why sentence should not be pronounced against you?

'THE RESPONDENT: No, sir.

'THE COURT: It is the sentence of this court that you be confined to the State's Prison of Southern Michigan at Jackson, Michigan for life.

'And I think you know why the court is doing it. I don't think I need to explain to you. That is all.'

In reversing Winegar's conviction, the Court of Appeals, said:

'The record shows that the defendant was informed of his right to have counsel appointed if he was financially unable to employ counsel, but it further shows that the trial court failed to give the defendant an opportunity to so request.' People v. Winegar, supra, 4 Mich.App., pp. 551, 552, 145 N.W.2d pp. 259.

We disagree.

Defendant had many opportunities during his first arraignment to ask for the appointment of counsel. He then had two full weeks in which to make the request before being brought back to court. He had still another opportunity to request counsel before changing his plea.

People v. Hobdy, Mich., 158 N.W.2d 392, is controlling. A trial judge fulfills his obligation by giving the advice required by Rule 785.3, as this trial judge did. See also, People v. Dunn (1968), Mich., 158 N.W.2d 404.

II IS A PLEA OF GUILTY INVALID WHERE THE RECORD DOES NOT INCLUDE A VERBATIM TRANSCRIPT OF THE COLLOQUY BETWEEN COURT AND DEFENDANT IN WHICH THE PROVISIONS OF GCR1963, 785.3(2) ARE COMPLIED WITH?

The portion of the record which bears on this issue is repeated here:

'THE COURT: Wine-e-gar. Mr. Winegar, you were before the Court on the 3d day of November, 1961. The Court then advised you of your rights, at which time you said you preferred to stand mute and the Court entered a plea of not guilty for you. Now it is your desire, as I understand, to plead guilty, is that correct?

'DEFENDANT: Yes, your Honor.

'THE COURT: And that is what you are doing now, is pleading guilty to this offense?

'DEFENDANT: Yes.

'THE COURT: Has anyone made you any promise of any kind to induce you to plead guilty?

'DEFENDANT: No.

'THE COURT: Has anyone stated to you that if you would plead guilty he would secure leniency from the Court?

'DEFENDANT: No.

'THE COURT: Then are you pleading guilty because you actually are guilty?

'DEFENDANT: Yes.

'THE COURT: Very well, I will talk with him. (Conference in chambers.)

'THE COURT: Let the record show that the Court has conferred with Mr. Winegar relative to the circumstances of the crime, is convinced that he committed the crime, that his plea was freely, understandingly and voluntarily made without undue influence, compulsion, or duress, and without promise of leniency. Therefore, his plea is accepted and he is remanded to the custody of the county sheriff to await sentence. That is all.'

Mr. Winegar was sentenced January 4, 1962, the proceedings on sentence being as follows:

'THE COURT: Are you Mr. Winegar?

'THE RESPONDENT: Yes, sir.

'THE COURT: You are here for sentence this morning, Mr. Winegar. Is there anything you have to say why sentence should not be pronounced against you?

'THE RESPONDENT: No, sir.

'THE COURT: It is the sentence of this court that you be confined to the State's Prison of Southern Michigan at Jackson, Michigan for life.

'And I think you know why the court is doing it. I don't think I need to explain to you. That is all.'

Rule 35A (1945) provided as follows:

'Sec. 2. Imposing Sentence. If the accused pleads guilty, after such plea and before sentence the court shall inform the accused of the nature of the accusation and the consequence of his plea; and regardless of whether he is represented by counsel, the court shall examine the accused, not necessarily under oath, and as a condition of accepting the plea of guilty and imposing sentence shall ascertain that the plea was freely, understandingly and voluntarily made, without undue influence, compulsion or duress, and without promise of leniency. Unless the court determines that the plea of guilty was so made, it shall not be accepted.

'Sec. 3. Record. The trial court shall cause a stenographic record to be made and promptly transcribed of the proceedings had under sections 1 and 2 above, and shall certify over his signature thereto that the same is a true record of the proceedings had. Thereupon...