*1 Hobdy. Dissenting Opinion by J. requiring such waiver. The cases that the record express disclose such waiver are collected and dis- my opinion Parshay. cussed in foregoing For reasons, I would affirm the the. Appeals’ Court of vacation of the con- defendant’s viction his and its remand of the case to the circuit court for trial.
T. M. KavaNagh, J., concurred with Soubis,
PEOPLE v. DUNN.
Opinion op the Court. op 1. Criminal Law —Assistance Counsel —Waiver. pled guilty Defendant escaping who prison after trial * * * judge said, “You you understand are that entitled your to an you own elioiee and if are unable to one”, one that State will furnish and after judge asked, held, trial do?”, “What do want to have counsel, waived his since there no be in express waiver (CLS 1961, 750.197). form § op Sentencing. Consequence 2. Plea — Same — There is requirement, Eederal, no State or that an accused be informed of imposed the maximum sentence whieh eould be statutory requirement under accused be advised consequence рlea, since the is to discover pleading guilty guilty, accused is because he is fact and if freely (CL 1948, 768.35). made Consequence Plea. Same — meaning “consequence” guilty, of a within rule, wording aeeused, by plead- of the court is that an so [1, [2, [4] 21 Am Jur 6, 7, 8] 9] 21 Am Jur 21 Am Jur Beperences 2d, Criminal Law 492. 2d, 2d, Criminal Criminal Law 487. por Points Law § § 316 et Headnotes sеq. Mich jury á jury, without
mg, iiis or trial waives subjects what- himself to and that the accused including by law, possible confine- penalty prescribed ever [1945]; (Court 35A GOB Bule No penal in a institution ment *2 785.3). 1963, § op Guilty Bight op Acceptance to Counsel. Plea — 4. Same — form, substance, not with in concerned with the should be Courts miscarriage justice of determining has been a there whether guilty of an accused's prosecution for crime when a counsel, after he been ad- accepted is without while he (CL right right has waived such to counsel and vised of his 785.3). 1963, 529.1, 769.26; 1948, GOB § Separate Opinion. ’ Adams, J! of Counsel —Waiver. Law —Assistance 5. Criminal prison guilty escaping pled trial Defendаnt, to who after from you entitled . are said, understand . . “You court your are unable to to own choice an if of you one”, and trial one that State after furnish court do?”, held, to have aslced, do want to “What nothing right counsel, to show there was to since waived his . counsel; comprehend to not that he did failurе to a waiver reguest amounts in these circumstances to counsel (CDS 1961, 760.19V). same of op 'Counsel —Waiver. 6.- Same —Assistance require- satisfy pat the constitutional rule can No formula understanding waiver ment of of counsel, upon capacities depends a it but defendant of explanation given as well аs a case 6, 14). (VS Const, Ams Guilty Purpose. Consequences Plea — 7. Same — pled guilty who has Purpose a an examination of defendant of pleading he is out the trial court to a crime is fmd guilty (Court Pule No 35A guilty he is because fact ). ; GCP 785.3[B] {194B~\ Dissenting Opinion. Kavanagh JJ. T. M. op Counsel —Waiver. Law —Assistance
8. Criminal Appeals’ reversal trial сourt’s of defend prison held, charge escaping ant’s 695> v. DüNN. although proper, record shows that where was in1 defendant rights jury of,. trial and to the assistance formed counsel, given opportunity rights he was to assert those QCR (CLS 196S, 785.3\3]), 750.197 op Guilty Consequences Plea —Maximum Sentence. Same — requiring Court rule that a he advised the сon- defendant sequences plea means, least, at that he advised exposes upon the maximum sentence to which he himself 785-, QCR pleading guilty (Court No [1945]; Rule 35A Appeal Appeals, from Court of Fitz 3; Division gerald, reversing, P. J., Holbrook, Burns and JJ., Simpson (John), Jackson, J. Submitted December (Calendar 51,666.) 7, 1967. No. 46, Docket No. Dec May ided John Dunn, Jr., was convicted *3 a of escaping prison. ap- of from Defendant pealed. Appeals people of Court reversed. Tbe appeal. Reversed and conviction affirmed. Kelley, Attorney
Frank J. Robert A. General, Derengoski, General, Barton, Solicitor Bruce A. Prosecuting Attorney, Stapley, and Vincent F. As- Prosecuting Attorney, people. sistant for tbe Patch, Howard W. for defendant. appeal, granted, Tbis
O’Haea, an on leave people Michigan to tbe tbe State of from a denial by rebearing Appeals. of a tbe Court of In its order rebearing sought, on Appeals wbicb wаs tbe Court of judgment on its own motion reversed a of conviction entered tbe defendant’s guilty plea accepted by
Tbe was tbe trial court July on 24, 1962. A motion for new trial was Mich 693. Opinion granted appeal delayed therefrom was
denied September Appeals by 30, 1966. the Court of defendant’s time At the (1945) pleа, in effect. It is Rule 35A was originally drafted. 1963,785.3as identical with GrCR pp xxxiii. xxxii, 379 Mich See appellee confine had been sentenced to In 1958 July prison Jackson. On ment in State charge escaping arraigned on he was Upon arraignment prison. on this his offense charge rejected his inconclusive to the the court guilty, аnd he confined was entered again July he was be 24, 1962, trial. to await fore the from the On request, appears judge at his circuit own as questions following and answers contained appearance: transcript the second in the Fleming [Prosecuting Attorney]; I under- “Mr. you requested brought Dunn, Mr. to be stand, today changing court back into your plea, is that correct? Yes, sir. “The Defendant: right? Is that “The Court: sir.” Yes, “The Defendant: this further examination After accepted. guilty plea as was Insofar it is relevant appellee’s appeal, ques- this to the issues raised appearance tioning by first set forth: is herewith Fleming: this here Do have “Mr.
morning, Mr. Dunn? No. “The Defendant: *4 Mr. Dunn, understand, “The Court: You your own to an choice are entitled furnish one that the State are unable to you one? Reporter. 1 2 xxxix, 318 Mieh xl. — See 28.394).— 1961, (Stat Supp Cum CLS 750.197 Ann 1968 Reporter. v. DuNN. “The Yes, sir. Defendant: “The Court: You understand that? * * * “The Yes, sir. Defendant: “The charged Court: You understand that are escaping prison, charged felony? as a second “The Yes, sir. Defendant: “The Court: You understand that?
“The sir.” Yes, Defendant:
The first
appellee
raised is whether
right
waived his
appearance
to counsel. On his first
clearly
before the court
right.
he was
advised of this
requested
He
brought
that he be
before the court
again.
requesting
His
in so
was determined
by question
necessity
and answer. There was no
again
that the court
right
ap
inform him of his
pointed counsel.
he
When
stated to the court that
plead guilty,
being
he desired to
after
informed of
right
appointed
his
intelligently
counsel, waived
competently.
require
There is no
express
ment that
this waiver be in
form. See
People Hobdy (1968),
v.
The nature of thе examination of the accused re- quired by the Court Rule before the any stereotyped need be in form. “The form and manner of this examination prescribed has not been but is left to the dis- judge, cretion of the to be exercised him in the parties manner best suited to the and the offense.” People Bumpus (1959), v. 355 Mich argued appellee It on behalf of that United Supreme precedent States Court case mandates holding to counsel was not waived Principal placed upon in this case. reliance is Carn ley Wainwright4 Cochran,3 Gideon v. and Johnson
3 (1962),
4 (1963),
698 380 693. Mich op Opinion the Coukt. of these that none v. Zerbst.5 It should bе noted guilty. a cases involved the No case is research reveal nor does our us, cited Supreme in which one States United passed on the a waiver of what constitutes Hobdy, upon plea supra). guilty (see counsel a Supreme foregoing trilogy The of United States obviously distinguishable from the Court casеs is case at bar. requested ap- specifically
In Gideon the accused pointed request and his counsel with was aside. was refused. His conviction set young in which 2 Johnson a case marines was felony without for a convicted leave were tried the They, pleaded not too, aid of counsel. Garnley, a case of trial without assistance was too, of counsel. arguendo precedential accepting lan-
But applicable guage by analogy, appellee is set in the brief of forth they principle hold as follows: we find impermissible from a is silent counsel Waiver agree. A cannot be wаived where record. We showing no aware of the accused was there right. explained must be when thereafter intelligently competently,
understandingly, waived. imper- “Presuming a record waiver silent
missible; must or there must be show, The record allegation show, an ac- and evidence which an intelligently counsel but and un- wаs offered cused derstandingly rejected Anything the offer. less Carnleyv. supra, p Cochran, not waiver.” protecting duty [referring responsi- to the “This bility judge has no where defendant coun- 357). [5] (1938), . US (58 S Ct 82 L ed ALR v. DtiNN. Opinion serious and weighty responsibility imposes sel] determining whether there the trial competent waiver- ac- Zerbst, Johnson v. (Emphasis supplied.) cused.” supra, p *6 Amendment ‘In all criminal provides, “The Sixth shall the prosecutions, right the accused enjoy * * * to for his have the assistance counsel defence.’ have construed this to mean that We Federal counsel must be for defend- provided courts to and counsel unless the is right ants unable employ competently intelligently (Emphasis waived.” Wainwright, supplied.) supra, Gideon v. pp as here hold that when a trial did judge says, We * * Judge here, “You understand Simpson are entitled to an own you your choice and if are unable to furnish one you one,” State the assistance of counsel has an offer of counsel explained, been made. further hold that after or explanation,
We such one of asks, here, like and the court as substance, a question that want fairly imports “What do to do?” “I substance, and the accused replies, plead guilty”, or “I plead desire to guilty”, law.', within all statute, constitutional case rule, requiremеnt, and under-: competently, intelligently, counsel. standingly waived The next issue .reason' of presented by is whether requirement the accused ad- the rule be vised of the of his trial court “consequence plea” is inform him of the maximum sentence obliged to which could be imposed.
There is no prior holding such requirement, any notwith- by to the contrary of Appeals the Court Mich standing.6 by Such is not mandated the Constitution States, United Constitu- binding tion of this State, statute, rule of precedent, require case State or Federal. toSo is purpose to misconstrue the of the examination of the holding accused the trial court. The effect of so guilty, to make the test of valid not whether freely, understanding^, voluntarily it made, punishment prescribed but whether the accords subject willing notion accused’s of what he is purpose himself to The prescribed by court’s examination as rule expect determine what the accused can may by way disposition. dо is to pleading guilty find out if the accused is because guilty, inhe fact is and that his freely In made. the words of the to deter- statute, plea.”7 mine the “truth of such This State has tra- separated ditionally guilt or inno- *7 punishment. from the of cence Even in improper, the trial of criminal is case it unless provoked, argue jury to to а what the accused’s People Singer (1913), could sentence be. See v. 174 Mich 361. “consequence plea” do not that
We find of his precisely any prior been in defined has decision of phrase this as that in is used GrCR 785.3. meaning “consequence” here hold that the the We guilty, wording a within the the rule, by pleading, that an aсcused, is so waives his by jury, jury by to or trial without a the additionally subjects and that the accused himself prescribed penalty by including to whatever is law, Appeals already The Court of addressed itself to this errone People ous contention in (1967), v. A. White Charles Mich App 220. 768,33 CL 28,1058). (Stat Ann 1954 Rev § DcjNN. People v. Opinion penal pоssible in a institution. confinement Under minimally of the accused must be advised rule, Any foregoing. additional information the trial the judge disposed give rests to to accused according the circum- exercised to discretion to be stances. parties have noted the reference
We Relating Pleas Draft on “Tеntative Standards (1967), Prepared by Advisory Guilty Com- Trial of the American Bar on the Criminal mittee Association Project Minimum Standards a final draft has been Justice.” When Criminal inappropriate approved not consider it would be possible rule amendment. with We it connection write the it advisable to do not consider рresent rule inter- the tentative draft into pretation. again rule
In
we cite
the court
and stat-
conclusion,
Winegar (1968),
380 Mich
719:
ute cited
(Stat
§ 769.26
Ann
529.1 and CL
GCR
28.1096).
import
of both the rule
1954 Rev
on review courts should be
the statute
with
substance,
form,
concerned
inquiry
has been a
is whether there
fundamental
miscarriage
applicatiоns
justice.
In the flood of
proceedings
the ac-
have attended
which
to review
accepted
pleas
ceptance
and those
of recent
any,
surprising
long
themselves
direct
few,
since,
proposition
simple
“I
fundamental
recurringly
guilty”. The thrust
in fact
am not
an error in the
that there was
form
plea.
many
the difference
instances,
In
even
in form a matter of semantic nuance. We find
in the
at bar.
error of substance
case
no
*8
Appeals vacating
the
The order
the Court
judgment
guilty
on the
re-
of conviction
affirmed,
conviction
versed.
JJ., concurred (concurring). agree, I reasons Adams, J., opinion People Hobdy my concurring in in stated v. (1968), 380Mich in 686, 690, the facts this case the to counsel was waived. ; Simpson Judge agree I do not that what did here adequate invariably proper constitute a ex- planation to counsel and an offer of (See my opinions People (1968), same. 380Mich v. Stearns People Winegar (1968), v.
704,706, 735.) pat satisfy Mich No rule or formula can the constitutional understanding depends upon
waiver which the ca- pacities given of a defendant in a case as well as the explanation judge. the trial opinion agree Justice O’Haea’s as to I plea” “сonsequence of his and that issue the examination “is to find out if the purpose of pleading because he in accused fact (Emphasis added.)
guilty.” Appeals I to reverse the Court and affirm vote conviction. (dissenting). For the reasons dis J., People (1968), opinion Hobdy my v. cussed Ap I affirm Mich would the Court of peаls’ of the defendant’s conviction on his vacation of the case to and its remand the cir óf Parshay See, also, for trial. cuit court (1967), Mich 7. applicable requirement of then
Furthermore, (1945) [318 xxxix, xl], 35A Mich Rule No 785.3(2), currently that defendant be see BOB consequences guilty plea means, of a advised very least, at the mаximum be advised *9 DuNN. Opinion by J. Dissenting Sotjrts, which, exposes upon pleading he himself sentence to dispute elementary for It to me too seems made cannot be that knowledge possible of im- sentence without suppose thereby imposed. prisonment I can that be quarrel if we had that, no one would with notion seeking capital punishment a defendant State, in this plead apprised he risks reason, be that should penalty imprisonment. instead of death “consequences” knowing of of one course, is might guilty plea might a defendant death, be right to to demand his constitutional instead, wish, jury. I be- or see no trial before tween а defendant knowledge difference plead being without allowed to imprison- than he death rather risks plead without allowed to a defendant ment and knowledge im- a maximum sentence of that he risks prisonment than for a term of 10 for life rather imprisonment years risks as in this that, case, years instead of 2. for a maximum 4-1/2 concurred J., T. M. KavaNagh,