*1 13 350. Oрinion op the Court. prosecutor of the names of additional witnesses to call. the defendant intends opinion filed The earlier in this case is withdrawn. and remanded for Reversed a new trial. Quinn, P. Kavanagh, and T. G. J., J., concurrеd.
PEOPLE FERGUSON. of Court. Guilty 1. Criminal Law —Plea —Words Phrases —“Conse- quence of His Plea”. “consequence plea” Phrase of his governing used in court rule bears no relation to advice as to maximum or minimum charged for offense sentenсes but consequences refers instead to the of waiver of constitutional right to (GCR 1963, trial and all incidents [2]). thereof op Guilty Understanding—Sentence. 2. Same —Plea — Failure of trial inform an accused of maximum sentence may be one, minimum if there is does not guilty, may invalidate a but determining considered understandingly whether a Guilty. Understanding.—Sentence. 3. Same —Plea — 22-year-old charge robbery Plea improperly accepted armed was where failed to understandingly determine that it was made in that he failed inquire as whether defendant ex- [1-4] [5] Court’s ALR2d 5 Am 21 Am Jur duty to Jur 549. guilty, References 2d, advise or admonish 2d, Appeal or to determine that he is advised Criminal Law 487 et and Error Points for in Headnotes seq. as to consequences thereof. imposed, and defendant who which could of sentence tent believed, because of the faet intelligence of low relatively other states had been pаst convictions far would be less than sentences, penalty faced short *2 empowered judge to years) (life any term impose. Guilty Error. —Harmless 4. Same —Plea guilty from uneducated judge of Acceptance have been not shown to beyond held, a harmless error years term of of life or doubt. reasonable
Dissenting Opinion.
Quinn, Miscarriage Appeal of Justice. and Error — Law — 5. Criminal predicate error on tech- reversible cannot A criminal defendant non-compliance non-compliance rule where such with court nical right nor shown to a was neither a denial constitutional 529.1). 1968, miscarriage justice (CL 1948, 769.26; GCM a J. Sub- Genesee, (Philip), from Elliott Appeal Lansing. at Divisiоn December mitted 1968. September 25, Decided No. (Docket 2,623.) 12, 1968. 381 December appeal granted Leave Mich 793. CQnvieted robbery armed
Leonard new trial granted. on Reversed and guilty. Kelley, General,
Frank J. Robert A. Attorney Kuebler, A. Derengoski, General, Solicitor Donald Miller, Jr., Prosecuting Paul G. Attorney, Prosecuting Assistant Attorney, people.
Gadola, Gadola, for Gadola & defendant. Leonard defendant, Ferguson, J. The Levin, to armed pleaded guilty and was sentenced robbery1 CL Ann 1954 Rev 362. App Mich Opinion op the Court.
years in 30 to 50 State to serve June appeals, claiming judge He erred
failing to advise him before of his
plea guilty may of the minimum sentence the trial
obliged impose have been max
might impose.2 imum sentence he
judge a trial should advise the Whether defend
years of the maximum number of ant
upon sentenced to serve the has been
many opinions subject Recently of our Court.
People App A. v. Charles White
phrase ‘consequence 220,it held that “the of his
plea’ [GCR 785.3]3 bears no relation to advice
by respect defendant with
punishment” consequence pleading- and that the
guilty “to waive the constitutional to trial
all the incidents thereof.” In the Court
People dismissed as dictum the reference in v. Atkins
(1966), “consequence plea” of his
support holding in of Atkins’ that the trial in
case that should have the defendant, advised who
just 16, of the maximum sentence for the crime charged. However, there to observe the White Court went on
(р 223): controlling-questions supra, Atkins, in were youthful understandingly whether a defendant understandingly waived to counsel and pleaded guilty.” (Emphasis supplied.) robbery may put probation. One convicted of armed not be OL Ann 771.1 1954 Bev pleads guilty, “If рlea the accused after such and before the court shall inform the accused of the nature of the aeeusation and consequences plea; regardless the of repre Ms and of accusеd, sented counsel the shall court examine the not oath, accepting guilty under and as a plea condition to the and imposing ingly, plea freely, sentence shall assert that the understand voluntarily made, influence, compulsion, without undue or duress, promise leniency. and without Unless the court determines plea made, accepted.” that 1963, 785.3(2). the was so it shall not be GOB People v. the Coukt. judges signed opinion the White of the 3 Two People Taylor (1968), signed App also 333
(leave appeal granted 754), 380 Mich [1968],
addressed itself to where the Court in
question presented general in
particular supra, (p 335): in
judge “At no time did the advise punishment of the follow his convic by plea guilty. tion in Our recent decision v. White 220, holds that such phrase ‘consequence advice no relation to bears the plea’ such btit advice is involved deter the required by supra, plea 785.3(2) mination that the ‘freely, standingly voluntarily made, was without undue under compulsion, influence, duress, ” promise leniency.’ (Emphasis supp without lied.)4 4 Similarly, (CA 8, 1965), in Kotz v. United States 353 F2d рrocess, validity as the eourt observed: “Due related to the requires plea guilty, plea voluntarily that the and understand ingly practice, made. 18 ITSCA directs In Rule Federal Rules of Proce Criminal dure, accept plea eourt that the not such unless it understanding satisfied that these elements exist. Such as nec essary give validity knowledge to the compre includes hension, only as charge, not nature of the hut also as to the imposed. lаnguage which can he In Supreme Court, of the understanding must made full consequences’.” be ‘with of the (Emphasis supplied.) ruled, however, The eourt that advice as to length given by judge, sentence need if de regard fendant faсt had attorney, obtained advice that from his and, attorney gave since defendant’s asserted he such advice defendant, evidentiary hearing question ordered on the defendant had in fact offering attorney reсeived sueh advice from his before plead guilty. Harper (CA 10, 1966), v. United States 55, interprets 368 F2d rule 11 of (providing the Federal Rules Criminal Procedure before the the eourt shall “that first determine voluntarily understanding made nature chargе” requiring inquiry whether the defend- ant has advised of imposed). *4 (CA 9, Munich v. 1964), 356, Accord: United States 337 F2d 361 (stating that the defendant should been that he told could not eligible probation considered for because of the nature of of- plеd guilty fense to which he footnote and that [see where rule has government court followed “the has the burden of proving i.e., harmless, that the error was the defendant made 13 Mich 366 Court. ti-ie obligation to determine whether
The voluntarily standingly freely, made” under “was 785.3(2) imposed upon 1963, GrCR courts is “regardless repre defendant] [the of whether ”5 by counsel. sented
People recently Supreme in declared The Court
(1968), previously men that the 693, Dunn
requiring provision tioned person court
pled guilty of the “con has be advised
oblige sequence plea”, does not
favorably inform him of the maximum
pre citing People supra. No issue was
plea Dunn’s was “un sented in Dunn derstandingly” to whether as
prior Dunn had
charged conviction; he with criminal escape
felony, a second for which offense the as
years.6 do not maximum sentence was "We 4-1/2 reliеving Dunn read rule court
“regardless imposed obligation * * * represented [the defendant] counsel
plea freely, [to] ascertain that the understand
(Emphasis ingly, voluntarily supplied.) made.”
nothing majority opinion find in Dunn’s incon We following pertinent sistent observation in with opinion separate dissenting Mr. Justice Adams’ (p 702): thаt case satisfy pat “No rule or formula can the constitu- requirement intelligent understanding
tional guilty voluntarily understanding tlie nature of charge.”) (p 360.) Compare (68 708, Von Moltke v. Gillies S Ct US 309). 92 L Ed supra. 785.3(2) quoted footnote Compare Apр 89, 92, v. Gill where observed, presence of counsel does not all eases warrant lodged apprised charge against inference that him.” penalty prison eseape, (Stat As to the see CL 750.193 28.390), subsequently Ann 1962 As to the increased amended PA Rev No 103. offense, for second see CLS Ann 1954 Rev § *5 op Opinion the Court. depends xipon capacities wliicli the of a waiver de- explanation given in a as well as case fendant judge.”
Merhige also, See, 612, where, 35A
prior adoption Rule No
(1945) (thе predecessor present 785.1), in a case where the defendant had been sentenced imprisonment to life his to armed
robbery, Supreme among our Court declared that
appraising the factors to be considered in the volun-
plea of a tariness lias been “advised of the punishment is whether the defendant
or
extent nature of the
might bo inflicted.”
that, We conclude while the failure inform an
person of the maximum sentence will not
necessarily guilty plea, his invalidate the failure of
the any show that the
may
minimum sentence
determining still be considered in whether such a
plea “understandingly”
persuaded areWe from our examination of the
judge record in this erred in fail- ing inquire upon
he was aware of the fact that conviction of robbery might armed he be sentenced to State any years. for life term of There is indicating in the record the defendant was aware he lengthy upon acceptance such a faced guilty. Although the defendant had a prior prior conviction each of his record, convictions Michigan was in than State other and the sen- imposed relatively tences were short. doWe priоr experience think the defendant’s criminal
necessarily would have informed him that in Mich-
igan penalty robbery for armed is .life or
years. prior expe- term Indeed, defendant’s
may rience have led him to believe the Mick the Court. magnitude of a far faced was was within which less than in fact it
judge’s power impose
actually in this case.
years convicted, When the defendant was old.
judge The trial observed of the defendant
average codefendant: “Neither of these men have
intelligence scarcely any nor education.” That
by *6 judge weighs heavily observation the trial us in our review. challenging do not mean
We to be understood as heavy
imposed the wisdom of the in this
saying case, but rather as that under the circum-
judge inquired stances the trial should have of the
possible defendant whether he was aware of the
possible minimum and of sentence as
part obligation imposed upon judge by
“regardless [the defendant]
represented by counsel”, to determine that the
plea understanding^
beyond are not
We convinced a reasonable doubt
that the error was harmless.7 Liggett 706, 716; Munich v. United States, supra, 4, supra. Compare discussed footnote Harrison v. (88 2008, 2011; United States 20 L US suggests S Ct 1047, 1052), Ed 2d error that where has com proving im mitted the burden of posed it was not harmless should not bе person. on the accused indicating attorney We find that defendant’s gave sentence. possible minimum the defendant advice as to the and maximum accepted Before defendant’s he was asked judge question your attorney”, had “talked this over with to which he responded, “Yes.” hearing petition plea same At the on defendant’s the the to vacate attorney represented by and the the defendant was representеd pled guilty. attorney him at the time was not The asked, given state, opportunity nor to whether he had informed the defendant of the minimum and maximum sentences. This appears following colloquy transcript in the this attor- betweеn ney (not sentencing judge) : who heard the motion May approach “Mr. Gadola: “The Court: Yes. I the bench? him That is on the Court asked record. The you. he discussed it with if “Mr. Gadola: Yes. the Coukt. n conviction based tbereon arе set Tbe
granted. a new aside J., concurred with Levin,
T. Gr. J. Kavanagh, (dissenting). place In order Quinn, this
posture, appellate proper in its it should be
appeal is noted that this from tbe trial court’s de-
plea nial defendant’s motion to withdraw
vacate sentence. Such motion tbe is addressed to you. All Court: about the He and what have not get said how much time he can but will un- it prisoner lawyer, inexperienced lаwyer, usual for not to tiling Mr. Gadola. or even even get tell his client what he could a case. That is the first they usually you it, I do and doubt whether did do saying I “All am discussing is that there is no sense in it fur- Now, you, go any I if you ther. feel there is a on that bаsis have denied it. want to further and interest, you then, conflict will have file a motion you if Now, feel that about the I know affidavit. do not you you testify you what swear to. heard that will be able or what can —(cid:127)my “Mr. Gadola: That’s — n (cid:127) I appear “The Court: don’t know but it would I me do not gained what it. know will be Was there a for Mr. Keel? other [the defendant] *7 pleaded guilty, your “Mr. Gadola: Both Honor. preliminary “The Court: examination, though. There a “Mr. Gadola: Yes. imagine “The Court: quite And I it thorough a one. “Mr. Gadola: Mr. did attorney. not have an Mr. Keel did. just “The Court: I assuming cannot even if the see— Appeals grant right would him the vacate that, I going gained by see except possibly— don’t what to bе it certainly I know I I won’t reduce it. even I increase it. know; depending don’t on what be the outcome. complaining “Mr. Gadola: Yes. The witness still available. right preliminary “The Court: That and the examination eould used if he werе not even right, available and if I remember pistol unmercifully. was used to beat him hammer, “Mr. HenneTce: And a I understand. “The Court: I gain Or a hammer. do not know what can by doing it. only My get “Mr. in, Gadola: I concern was how can it by an affidavit— “Thе Court: You him him him write and tell I denied it to why Then, bridge tell him I denied we we it. will eross when get to it.” Mica Apr Dissenting Opinion by Quinn, People Vasquez of the trial court. v. discretion
(1942),
review the
by court, of that cise discretion
by appellate grant or denial relief is controlled
or discretion our determination of whether not the has been abusеd. by
The standard which we determine abuse of
by statute, 1948, 769.26 discretion is established CL
by 28.1096) rule, Ann 1954 Eev GrCE
finding 529.1. A of discretion re 1963, quires abuse
finding violation or denial of constitu
People
miscarriage
justice.
or of
tional
Winegar (1968),
Defendant makes no claim that a constitutional right was violated or denied nor that there has been miscarriage justice, probably because such
by supported would not claim the record. His
argument alleged sole tech relief is based
noncompliance (1945), nical presently with Court Rule No 35A
1963, 785.3.
authority On the v. White
App v. Collins
People Winegar (1968),
131, and
to I vote affirm.