296 N.W.2d 183 | Mich. Ct. App. | 1980
PEOPLE
v.
SMITH
Michigan Court of Appeals.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, L. Brooks Patterson, *59 Prosecuting Attorney, and Robert C. Williams, Chief Appellate Counsel, for the people.
John C. Polasky, for defendant.
Before: D.F. WALSH, P.J., and BASHARA and K.B. GLASER,[*] JJ.
PER CURIAM.
Defendant appeals his plea-based conviction of assault with intent to commit criminal sexual conduct in the second degree, MCL 750.520g(2); MSA 28.788(7)(2).
Defendant's only claim on appeal is that he was not informed that he was waiving his right to remain silent and that no adverse inference could be drawn from his refusal to testify. It is true that the record does not reveal an explicit query from the trial judge as to whether the defendant expressly waived his right to remain silent at trial.
The record also reveals that defendant admitted having been advised of all of his rights by his attorney. He admitted filling out the plea-taking form and going over each item with his attorney as shown by the following colloquy:
"THE COURT: All right, with regards to your rights, Mr. Smith, have you been advised of all of your rights?
"MR. SMITH: Yes.
* * *
"THE COURT: Did you go over this form, this plea of guilty with your attorney?
"MR. SMITH: Yes, I did.
"THE COURT: Did you go over each and every item?
"MR. SMITH: Yes.
"THE COURT: Did you understand it all?
"MR. SMITH: Yes, I do."
*60 Question 11 of the guilty plea form to which defendant referred states the following:
"11. Do you understand you have the right to testify at the trial if you want to testify or you have the right to remain silent and need not incriminate yourself, and do not have to take the witness stand in your own defense, and that the prosecution cannot comment upon your failure to do so and that no inferences adverse to you may be drawn if you choose not to testify?"
The defendant wrote the answer "Yes" in his own handwriting.
In Guilty Plea Cases, 395 Mich. 96; 235 NW2d 132 (1975), in effect the textbook on guilty plea proceedings, our Supreme Court stated it is mandatory that the defendant be advised of the so-called Boykin-Jaworski[1] rights, one of which is the right to remain silent. However, the Court amplifies:
"The primary purpose of subsection (d) is to impress on the accused that by his plea of guilty he waives his right to a trial. If it appears on the record that this purpose has been achieved, the omission of one or another of these rights, other than a Jaworski right, or the imprecise recital of any such right, including a Jaworski right, does not necessarily require reversal.
"On appeal the issue is whether it appears on the record that the defendant was informed of such constitutional rights and incidents of a trial as reasonably to warrant the conclusion that he understood what a trial is and that by pleading guilty he was knowingly and voluntarily giving up his right to a trial and such rights and incidents." 395 Mich. 96, 122.
We also refer to the case of People v Killingbeck, *61 49 Mich. App. 380; 212 NW2d 256 (1973). Judge, now Justice, FITZGERALD, writing for a unanimous Court stated:
"The prearraignment questionnaire, acknowledged by defendant at the plea-taking and later at the postconviction review, constitutes a part of the record of equal dignity and effect as that transcribed in a verbal proceeding. In fact, the Supreme Court considered the written statements of defendants taken in connection with their guilty pleas as part of the record in Jaworski, supra, and People v Butler, 387 Mich. 1, 12-13; 195 NW2d 268, 273-274 (1972). Reference to the prearraignment questionnaire indicates that defendant was substantially advised of his constitutional right against self-incrimination and his right to confrontation." 49 Mich. App. 380, 386.
We conclude that defendant was adequately advised of his constitutional rights so as to create a valid, knowing and voluntary plea of guilty.
Affirmed.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
[1] Boykin v Alabama, 395 U.S. 238; 89 S. Ct. 1709; 23 L. Ed. 2d 274 (1969), and People v Jaworski, 387 Mich. 21; 194 NW2d 868 (1972).