293 N.W.2d 646 | Mich. Ct. App. | 1980
PEOPLE
v.
HICKS
Michigan Court of Appeals.
Frank J. Kelley, Attorney General, Robert A. *611 Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Michael R. Mueller, Director, Prosecutors Repeat Offenders Bureau, and Larry L. Roberts, Assistant Prosecuting Attorney, for the people.
Douglas D. Elliard (Carl Ziemba, of counsel), for defendant.
Before: N.J. KAUFMAN, P.J., and D.E. HOLBROOK, JR. and R.M. MAHER, JJ.
PER CURIAM.
Defendant was charged, along with a codefendant, with felony-murder, contrary to MCL 750.316; MSA 28.548. He pled guilty but mentally ill to second-degree murder, MCL 750.317; MSA 28.549, before the Wayne County Circuit Court. Sentenced to imprisonment for 10 to 30 years, defendant now appeals as of right under GCR 1963, 806.1.
Defendant contends the plea-taking court did not take adequate measures to insure the voluntariness of his plea in that the court did not apprise him of the elements of the offense charged, felony-murder, or of the offense to which he was pleading, second-degree murder. Moreover, defendant argues, the court failed to ascertain an adequate factual basis for his plea, especially with regard to the element of intent, as required by GCR 1963, 785.7(3)(a).
We have reviewed the guilty plea transcript and found that defendant is correct in his assertion that he was not apprised of the elements of the offenses. In most instances, this would not be considered error as neither the court rule nor Michigan case law requires a plea-taking court to explain the elements of an offense. GCR 1963, 785.7(1)(a), Guilty Plea Cases, 395 Mich. 96, 116; *612 235 NW2d 132 (1975), People v Walker, 84 Mich. App. 700, 704; 270 NW2d 498 (1978). In the instant case, however, one of the elements defendant asserts that the court neither apprised him of, nor ascertained a factual basis upon, is the element of intent.
A similar situation presented itself in Henderson v Morgan, 426 U.S. 637; 96 S. Ct. 2253; 49 L. Ed. 2d 108 (1976). In that case, the defendant was also charged with first-degree murder and eventually pled guilty to second-degree murder. He also argued that this plea was involuntary since the plea-taking court did not discuss the elements of the offense of second-degree murder or refer to the requirement of intent to cause the death of the victim. The United States Supreme Court agreed that the plea was not voluntary because the defendant never received real notice of the charge against him. The Henderson Court noted at 647, fn 18:
"There is no need in this case to decide whether notice of the true nature, or substance, of a charge always requires a description of every element of the offense; we assume it does not. Nevertheless, intent is such a critical element of the offense of second-degree murder that notice of that element is required."
The Henderson Court further stated at 647:
"Normally the record contains either an explanation of the charge by the trial judge, or at least a representation by defense counsel that the nature of the offense has been explained to the accused. Moreover, even without such an express representation, it may be appropriate to presume that in most cases defense counsel routinely explain the nature of the offense in *613 sufficient detail to give the accused notice of what he is being asked to admit."
In determining that defendant was not effectively apprised of the nature of the charge against him, the Henderson Court considered the following factors important: defendant was of below average intelligence; the charge of second-degree murder was never formally read; defendant did not stipulate to the existence of the requisite intent; and defendant had made no factual statement or admission necessarily implying that he had such intent. See Henderson, supra, 645-649.
These factors exist in the case at bar as well. The defendant was diagnosed as a schizophrenic who had periods during which he was unable to recognize reality. The charge of second-degree murder was never formally read to the defendant because he, like the defendant in Henderson, was originally charged with first-degree murder. There was no stipulation by defense counsel that the requisite intent was present at that time of the alleged crime. Finally, defendant's statement of a factual basis for his plea would not necessarily support a finding of intent. The defendant merely admitted to having agreed with his codefendant that the victim should be hit or struck. This does not constitute a sufficient factual basis for a finding of malice. The natural tendency of the defendant's behavior, in aiding and abetting in the hitting of the victim, would not cause death or great bodily harm.
Therefore, we find the instant case to be controlled by the Henderson decision. Accordingly, we reverse defendant's guilty plea and remand for a trial upon the charge of second-degree murder.
