*1 App 48 SPANN PEOPLE Opinion the Court of Setting Aside Plea Contendere — of Nolo Law —Plea 1. Criminal —Discretion. in an case plea contendere assault nolo of Refusal to set aside a acceptance plea defendant, subsequent his the of to the because sentencing, for the first time immediately prior claimed to only complainant and was the to assault did not intend he totally proper was acting where self-defense was in self-defense appears transcript, it defendant was inconsistent with impending severity mitigate of an attempting to more plea, with the express a true dissatisfaction to sentence than challenges governing to rules within the refusal was precedent. case laid down contendere nolo Proceedings Correcting Plea-Taking Defi- — 2. Criminal Law — Plea. ciencies in operate may to correct proceeding plea-taking A second formal action proceeding, in the absence of of a first deficiencies setting proceeding the second where the initial aside oversight prior was an but of a to correction not confined during of proceeding defendant was advised entirely which new accepted. rights and his his Interroga- 3. Criminal Nolo Contendere — Law —Courts—Plea Interest. Interest —Public tion —Defendant’s nolo interrogate offers a may defendant who a never A court accept plea of nolo never and the court contendere unless, interrogating it de- without contendere public interest and defendant’s that both the termines (GCR 1963, [d]). protected 785.7[3] remain interest will Accepting of Nolo Contendere — Law —Courts—Plea 4. Criminal to Give Reasons —Adminis- Plea —Failure Contendere Nolo Interrogation—Error to Detrimental tration People of Justice — Pro Tunc Correction. —Nunc contendere, state, accepting nolo in failure A court’s [1, [2] [5] 3, 4, 6, 21 Am 21 Am Jur 7] Jur 21 Am Jur 2d, 2d, References Criminal Criminal 2d, Law 460. Law 464. Criminal Law §§ for Points § § Headnotes 497-502. op Opinion the Court believing its reasons administration require interrogation did of the defendant crime is not error reversible where the people failure inures the detriment and does not *2 prejudice defendant; the court’s failure to state its reasons pro type may of error which corrected nunc tunc at a (GCR 1963, subsequent [d]). proceeding 785.7[3] Plea-Taking 5. Criminal Law —Courts—Court Rules — Errors— Rights Statutory Rights Policy Constitutional — —Public Matters —Post Hoc Corrections. plea-taking process concerning
Errors in the of failure trial court of to inform the defendant all the constitutional and statutory rights by waived cannot be corrected subsequent process proceeding; plea-taking errors in the relat- ing public policy, guard of to matters such as the desire to against involuntary pleas falsely guilty or of induced and innocence, subsequent false claims of or the desire to avoid repetitive hearings appeals, subject, and are error that he (GCR cases, 785.7). appropriate post 1963, to correction hoc Guilty— 6. Criminal Law —Plea of Nolo Contendere —Plea of Appellate Review. differently guilty pleas Nolo contendere are treated than for appellate purposes.
Concurrence J. O’Hara, Interrogation 7. Law —Plea of Criminal Nolo of Contendere — Defendant —Nunc Pro Tunc Correction —Court Rules. Remanding pro permissible a case for nunc tunc correction is a procedure precedent court, under case where the ac- cepting contendere, of nolo failed state its reasons for believing that interests of the defendant and the require interrogation administration did not (GCR in the crime 785.7[3][d]). Appeal Muskegon, from John H. J. Piercey, 15, 1975, Submitted Division January at Grand (Docket 19947.) Rapids. No. Decided March 1975. Opinion of the Court convicted, Eugene on his A. great intent do contendere, of assault nolo appeals.
bodily Defendant murder. less than harm Remanded. Attorney Kelley, General, A. Robert
Frank J. Derengoski, General, David F. Fol- Solicitor Attorney, people. Prosecuting kert, for Balgooyen, Balgooyen, C,P. de- & Daniels appeal. fendant on J., and N. J. Kaufman Before: P. Allen, JJ.
O’Hara,* right appeals as of from Defendant P. J. Allen, plea-based conviction assault a nolo contendere bodily great than harm less with intent to do *3 He was sen- MSA murder. MCLA 750.84; 28.279. years. prison to ten to a term five tenced Atypically, in two sessions the was taken validity judges. It is the before different trial challenged appeal. plea-taking this which is on the September cousin, and his 1973, defendant 9, On proceeded Harris, to Charles Hackett’s Willie Muskegon, Michigan. purpose apartment Their in allegedly owed Hackett to collect a debt which was pro- Entering apartment, Harris defendant. gun, announcing he had come to blow duced a argument An then ensued out. Hackett’s brains as to whether between defendant Hackett by or followed a scuffle between debt was $50 $25, gun. scuffle, In and Hackett over defendant nearby time couch at which Hackett fell onto a gun, possession shot of Harris’ now in * by Justice, Appeals sitting Supreme on the Court Court Former 1963, 6, pursuant in 1968. assignment to as amended § Const art People Opinion op the Court
Hackett once in in the arm and twice the back. Defendant charged was with assault with intent to 750.83; commit murder. MCLA MSA 28.278. Pre- held, liminary was defendant being examination counsel, represented by and defendant was bound over for arraignment. 5, 1974,
On February appeared with counsel pled nolo contendere to the lesser charge of great assault with to intent do bodily which, harm less than murder to a pursuant nego- tiated agreement, was added as count two of the information. Count one was dismissed. Both parties appeal agree this February proceedings were defective reason of mini- only mal compliance 1963, 785. GCR Recognizing the shortcomings February proceedings, parties returned to March court "rein- state” and plea. "reinstitute” defendant’s Proceed- ings commenced anew. The preliminary examina- tion transcript was again introduced evidence to supply the factual basis for the Defendant length of his advised rights, constitutional and his of nolo contendere was again made and accepted. Count one was dismissed.
Defendant five errors assigns the plea-taking proceedings. Two of alleged errors rejected are by us as noted below.1 The remaining issues are discussed as follows. 1(1) upon claimed in the Error trial court’s reliance defendant’s
preliminary to establish the factual examination basis of the nolo plea. People Conville, contendere 222 NW2d subsequent brief, decided to submission of defendant’s judge may "rely holds a tion solely upon preliminary examina- *4 transcript to plea. establish the factual basis” for a nolo (2) Error is fully in that claimed defendant was not advised of his rights hearing. However, at the March 15 brief is directed defendant’s at sions in hearing. February hearing deficiencies in the 5 and not discuss omis- does explanation rights the trial court’s waived at the March 15 point Further opinion discussion of this occurs in our on issue II. App 52 48 60 Mich Opinion the Court I.
Subsequent plea of his nolo acceptance to the at proceedings, immediately March 15 and prior to sentencing proceedings, same those defend ant, time, for the first claimed he did not intend to shoot complainant only and was acting self- defense when grabbed wrist complainant over Howard, Citing gun. 38 Mich App 217; (1972), People Primeau, v 195 NW2d 925 and 235; (1970), Mich NW2d counsel contends protestations where of innocence accompany plea may not be accepted. Howard, We find the su inapplicable. cases cited pra, plea. involved motion to withdraw a In the case, instant no motion to withdraw was made. In Primeau, supra, lack specific intent to a plea of breaking and entering with intent to commit appeared larceny when court took the and not after acceptance prior of the and to sentencing. to Peo present analogous The case is Davis, ple 402; (1964), Lewandowski, and 58 Mich App NW2d 843 where dissatisfaction with the plea was first expressed acceptance after during Lewandow proceedings. sentence ski, supra, is particularly apposite. It sets forth governing challenges rules pleas to nolo contendere given
and the discretion court set plea. aside such a principles Within the laid down Davis, in Lewandowski we find no error. Self- defense is totally inconsistent transcript. with the opinion In our the brief colloquy with the trial judge prior sentencing appears more effort as an to mitigate severity of an impending sentence than a true dissatisfaction the
II. Defendant does not the ade- directly challenge *5 People 53 Opinion of the Court advice to defendant of the trial court’s quacy Instead, defendant hearing. 15 zeroes in the March by plain- admitted multiple on the deficiencies —all Citing proceedings. tiff —in earlier Snyder, App proceeding a second argues
defendant then proceed- in the earlier rectify not be used to error argument, on this claim- ing. expands Defendant not ing hearing may operate 15 March hearing correct the deficiencies of first setting aside the absence of formal action initial plea. Snyder, supra, might applicable had court 5 as accepted February final upon proceeding and relied the March merely oversight hearing. to correct at the former an The not confined to correction of hearing second was an prior oversight, entirely but rather was new proceeding during which defendant was advised of rights accepted. By and his was its use of "rearraignment”, the words "reinstitute” and "re- instate”, judge the trial manifested his intent procedure though treat as defendant had never supra, before. This makes Snyder, pled obviously distinguishable. To conclude that the second hear- ing remains invalid no matter how it perfectly held, because a merely paper sheet was not filed formally setting aside the hearing, earlier is to elevate form over Except substance. for the diffi- III, culty discussed issue has not raised objections to the trial court’s compliance with GCR 785. Accordingly, we find no error in issue II.
III. charges Defendant as error failure the trial Opinion of the Court court at hearing March to fully comply 785.7(3)(d). with GCR This section reads: "Where a of nolo contendere is made the court shall interrogate the defendant his or her in the crime. However, the court may not *6 accept of nolo contendere unless there has been judge or the thereupon hearing conducts a establishing support substantial finding for a that the defendant is in fact guilty charged of the offense or the offense to which he offering is of nolo contendere and judge unless the ffrst states believing reasons for the interests of the defendant and adminis- require interrogation tration of do not of the defendant in the crime.” (Emphasis supplied.) the trial state,
Since court never did much less [state]”, "first reasons for not its interrogating reversible error is charged. The rule as worded is admittedly confusing and this may ex- plain why the court never took the action required under the rule. There appears to be a patent inconsistency the rule whose first sentence phrase last first blush appear contradictory. Perhaps the trial judge deliberately omitted stat- ing his reasons for not interrogating because he believed the first sentence of the rule prohibited him from doing. so Perhaps the court felt the preliminary which, examination under Conville, App 251; 222 NW2d was properly admitted into evidence to supply factual basis of the plea, was so clear decisive, interrogation of defendant was not But necessary. reasons, whatever it is clear the court did not comply with the rule. The question, therefore, is whether this automatically reversal, requires or whether the error in some other corrected posed manner. The issue Opinion Court first blush contradic- impression one first —the 7(3)(d) having tions of never been called subsection to this Court’s attention. it will be answering question helpful
Before this rule and to discuss hopefully the intent designed its The rule is resolve contradictions. assuring that nolo conten- protect public by ongoing used to thwart dere will not be investigations. This litigation criminal or civil where, happen example, high gov- could easily charged ernment officials serious crimes against al- public automatically trust were If plead they lowed to nolo contendere. did so telling investigators partici- without ever who else offense, pated might in the the full truth never be example charges uncovered. Another would be brought criminals. If against professional they plead qualification, could nolo contendere without offense, especially to a lesser included their mas- ters, crime, organized might escape the leaders of *7 if, unpunished. undetected and the other On hand above, given person in the examples charged the had everything investigators, revealed he knew to the justice administration would not be hampered by interrogating person offering not the the A example recent is the case of a former high plea Federal official whose of nolo contendere was properly accepted public investigators because had already gained full information of the offense from the other participants. "kick-back” Neither will the administration be prejudiced the ordinary run-of-the-mill criminal offense where, case, knowledge as in the instant full of all participants’ and defendant’s actions contained is in the preliminary examination or can testified to by police designed officials. The rule is also protect pleading defendant. a The fact 60 Opinion of the Court plea bargain is made itself shows the defendant advantaged usually and is sufficient reason for not interrogating. there are Sometimes additional rea sons, as for example, charge a of indecent liberties minor, with a require where to to recite the details of the offense on the record would not only be demeaning but could interfere with reha bilitative background efforts. This explanation helps to dispel the impression first inconsistency of effect, the rule. In awkward, the rule in its back (1) ward way says the court shall never interrogate (2) the defendant in a nolo contendere court shall accept plea never of nolo contendere unless, without interrogating defendant, it determines that both the defendant’s interest and public interest will remain protected. The inconsistency is cured if rule is read as sepa rated into two parts, with words added (already there implication) as indicated the footnote below.2 For the purpose of clarity, the added words are italicized.
With this impression first explanation of the rule, we now return to the question. main Obvi- ously, judge the trial did not state the reasons as called for by the rule and obviously the omission is 785.7(5). error. GCR But is it necessarily reversible error? The failure to state finding as to the proper administration of justice is the type of error which inures to the detriment of the 2(d) made, Where a of nolo contendere is the court shall not interrogate the defendant his or her in the However, accept crime. the court of nolo contendere: (i) been, judge thereupon interrogat- unless there has or the without ing hearing establishing support conducts a substantial finding guilty charged for a that the defendant is in fact offense offering contendere, or the offense to which he is of nolo *8 (ii) unless, prior acceptance judge to the of such the first states believing reasons for proper the interests of the defendant and the require interrogation administration of do not of the defendant in the crime. 57 Opinion of the Court it
people. prejudice In no way pleading does against Being people accused. an error and not only it of which the people is one may complain. miscarriage justice,
"If
any
there is
of
under these
only
people
circumstances it can
be one in which the
of
Michigan
of
have
an
the State
penalty. Putting
exacted
insufficient
way,
been,
it
if there
another
has
circumstances,
justice,
miscarriage
under these
a
of
it is
miscarriage
to the
of
which ran
benefit
the defend-
detriment
people.
ants and to the
miscarriage
of the
Of such a
justice, only
can
people
complain.”
of
Collins,
People
135;
v
380 Mich
The errors category relating second includes public policy, matters such as desire to guard against falsely or induced involuntary pleas (as of guilty subsequent well as false claims of innocence), that a factual by requiring basis for be established on record at the plea- Carlisle, People v taking proceedings; see 387 Mich 269, 274; 195 851 NW2d or such as the avoidance of repetitive hearings appeals and by requiring plea bargains that all be set forth in the record affirmatively acknowledged by defend- ant, counsel, Giglio prosecutor; defense and the see States, v United 150; 763; 405 US 92 S Ct 31 L Ed (1972). 2d 104 in category Errors this may be cases, subject, correction post appropriate hoc. Examples are: the failure to establish on the record a sufficient factual People plea, basis for the Bratton, v 1, 3; 46 App (1973); Mich prosecutor present court, failure of the to be Leonard, People v 368; 51 Mich App 214 NW2d (1974); 888 plea bargain not affirmatively ac- prosecutor, People knowledged by v Otha Lee Edwards, App 196; 58 Mich 227 (1975); NW2d 290 inadequacy factual basis for a nolo plea, contendere (1974). Dailey, 757 Mich instance, In each the remedy ordered trial, not reversal and a new but remand to the for nunc pro tunc correction. Signifi- lower court Shekoski, Edwards cantly, was decided after Dailey, a nolo contendere case, Sheko- though ski, was an order of the Supreme Court. do not We that Supreme believe Court hold itself would Shekoski, the iron mandates a guilty case, govern appellate action on a nolo Nolo pleas are contendere treated than differently People O’Hara, J. Concurrence People v Con purposes. appellate for guilty (1974). See ville, 222 NW2d App 545, 550; 210 Curry, also a technical (1973), where, finding after NW2d did not this Court in a nolo contendere defect pro nunc remanded new but order tunc hearing. because specifically
For the
reasons and
above
*10
has
that an
ruled
highest
of this state
court
nolo contendere
for a
inadequate factual basis
remanding to
the trial
give
be
may
by
corrected
by
the record
perfect
an
opportunity
court
support
guilt,
for
we
required
establishing
the case now before us should
conclude that
a
of its
the trial court for
statement
remanded to
(if
exist)
believing
the defend-
reasons
any
and the
administration
ant’s interests
interrogation
require
do not
defendant’s
in the crime.
in
with
to the trial court
accordance
Remanded
this
rea-
opinion. Upon
this
return to
Court with
If
stated,
sons
defendant’s
conviction is affirmed.
exist,
stated,
reasons
not be
or do
defend-
a
and remanded for
ant’s conviction
reversed
jurisdiction.
new trial. This court retains
J.,
Kaufman,
N. J.
concurs in the result.
result).
(concurring
in
O’Hara,
I
in the
J.
concur
because,
by Judge
result
reached
largely
Allen
cannot,
mind,
I
honesty,
my
all
own
satisfacto-
1963,
rily
seeming
reconcile
command of GCR
Shekoski,
785.7,
as
interpreted
by
disposi-
I have sought
faithfully
comply with the
directions of
highest
this state’s
court with respect
to cases arising under GCR
785.7 and have
with recorded reluctance written to set
aside
which the court
rule and Shekoski apparently
mandated. See People King,
In finality, I concur remand espoused in my colleague’s opinion as reflecting permissi- procedure ble under the authority of Dailey.