314 N.W.2d 640 | Mich. Ct. App. | 1981
PEOPLE
v.
LOCKETT.
Michigan Court of Appeals.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief Appellate Counsel, and James A. Cherry, Assistant Prosecuting Attorney, for the people.
Bruce J. Thorburn, for defendant on appeal.
Before: DANHOF, C.J., and BRONSON and M.J. KELLY, JJ.
M.J. KELLY, J.
The question presented in this case is to what extent a pre-designed form will satisfy the requirement that a trial judge inform a defendant at a plea-taking proceeding of his right to confront and cross-examine witnesses in accordance with GCR 1963, 785.7(1)(g)(v) and (vi).
Defendant pled guilty to one count of armed robbery, MCL 750.529; MSA 28.797, and one count of felony-firearm, MCL 750.227b; MSA 28.424(2). He was sentenced to two years imprisonment on the felony-firearm count and from 5 to 15 years imprisonment on the armed robbery count, said sentences to run consecutively. The sole issue *407 raised on appeal is whether his guilty plea must be set aside because the trial court failed to advise defendant of his right to question witnesses against him.
We note at the outset that a defendant's right to question witnesses against him, along with the right to a trial by jury and the right to remain silent, comprise the three so-called Jaworski rights. People v Jaworski, 387 Mich. 21; 194 NW2d 868 (1972). These rights may not be omitted from the plea proceedings. Guilty Plea Cases, 395 Mich. 96, 121-122; 235 NW2d 132 (1975).
The people concede that the defendant is correct in asserting that the record does not indicate an explicit query from the trial judge as to whether defendant expressly waived his right to confront and question the witnesses against him. However, the record does indicate that defendant admitted being advised of all his rights by his attorney. Defendant also acknowledged signing a plea-taking form and that everything contained in the form was true. Question 10 of the plea-taking form asked defendant if he understood that by pleading guilty he gave up his right "[t]o have the witnesses against you appear, at trial, and to question those witnesses". The word "yes" was penned in next to question 10.
The people cite the case of People v Smith, 98 Mich. App. 58; 296 NW2d 183 (1980), in support of the argument that substantial compliance is all that is necessary to a meaningful plea and specific ritualistic advice from the mouth of the judge to the ear of the defendant is not mandated even as to a waiver of Jaworski rights. We are unable to interpret the court rule and the cases decided by the Supreme Court in Guilty Plea Cases and thereafter as expressing or implying such a holding. We *408 are forced to disagree with the conclusion reached by the panel in People v Smith, supra. We would readily salute a return to the former practice which relied on the integrity of the attorney to advise an accused of the rights he was waiving in tendering a guilty plea, but until the Supreme Court dismantles the rigid construction of court Rule 785 we are left to count trees and not see forests.
In Guilty Plea Cases, supra, the Court stated that a failure to "inform" a defendant of his Jaworski rights required reversal of defendant's guilty plea. The question presented by this case is whether a trial court can rely on a plea-taking form to "inform" a defendant of his right to confront his accusers. We think the Supreme Court intended it could not.
GCR 1963, 785.7(1)(g)(vi) requires that the trial court, speaking directly to the defendant, tell him that by pleading guilty he is waiving his right to confront his accusers. The requirement that the judge personally address defendant has a two-fold purpose. First, it allows the judge to observe defendant's demeanor and the manner in which he replies to the court's questions. Second, it reinforces the fact that pleading guilty is a serious occasion at which defendant sheds his presumption of innocence and assumes the onus of a convicted felon. Guilty Plea Cases, supra, 122, People v Napier, 69 Mich. App. 46, 48; 244 NW2d 359 (1976). On previous occasions, we have reversed a guilty plea where the trial judge relied on a plea form rather than speaking directly to the defendant as required by GCR 1963, 785.7(1). Napier, supra, 49, People v Atkins, 60 Mich. App. 380, 381; 230 NW2d 443 (1975), People v Jones, 58 Mich. App. 231, 232; 227 NW2d 297 (1975).
*409 In this case, defendant was orally informed on the record of all his Jaworski rights except his right to confront his accusers. The prosecution argues that a plea form, signed the same day defendant pled guilty, contained a waiver of his right and demonstrated that defendant knew he was waiving his right to confront his accusers. We have no doubt that the people are correct. However, the argument ignores the wording of GCR 1963, 785.7(1), which clearly mandates that the trial judge speak directly to defendant telling him that he is waiving his right to confront his accusers. The court rule intends the procedure be vested with a solemnity that is missing if a plea form is allowed to take the place of the formal recital of rights by the trial judge. As we read the rule and the authorities, reversal is mandated for failure of the trial court to personally inform defendant that he was waiving a Jaworski right, in this case, the right to confront his accusers. Substantial compliance there was, satisfaction of the Supreme Court mandate there was not.
Reversed.
BRONSON, J., concurred.
DANHOF, C.J. (dissenting).
I respectfully dissent. On the authority of People v Smith, 98 Mich. App. 58; 296 NW2d 183 (1980), I would hold, under the facts of this case, defendant was adequately informed of his right to question witnesses against him.
