*1 App 132 TALLIEU PEOPLE v 13, 1983, Lansing. 71307. October Docket No. Submitted Decided 21, February 1984. driving Stanley while under F. Tallieu was convicted a vehicle offense, intoxicating liquor, Lapeer Cir- the influence of third Court, appealed Baguley, The cuit Norman A. J. opinion Appeals unpublished per curiam the Court of in an 1983) (Docket 25, January remanded the No. decided evidentiary hearing deter- to the court for an to case circuit prior whether of the defendant’s convictions was mine one constitutionally guilty plea. The circuit based on a defective court, J., Baguley, prior conviction Norman A. held that constitutionally proper basis for the was not infirm and was a again third offender. The defendant defendant’s conviction as a appealed. Held: pleading prior The defendant’s conviction was based on his constitutionally guilty in district court. That conviction colloquy engaging any judge infirm. The erred in not district waiving. explaining rights Because that the defendant was prior was the basis of conviction which formed invalid, may for the the conviction not be used as a basis defendant’s conviction as a third offender.
Reversed and remanded. Danhof, C.J., dissented. He would not find that constitutionally that a dis- conviction was infirm. He believed explain required orally a defen- trict is not to waiving guilty. by pleading He the defen- dant is believed opportunity ample dant was advised of his question regarding any misunderstanding that he had. conviction. have He would affirm defendant’s [1-4] [5] Court’s Validity 21 Am plea ALR2d 21 Am Jur duty to Jur 549. guilty, guilt 2d, References 2d, Criminal Law 433§ advise or admonish accused as pleas Supreme Criminal Law or to determine — for Points §§ Court cases. 25 470-473. et that he seq. Headnotes is advised L Ed 2d 1025. consequences thereof. v Tallieu Opinion op the Court Guilty — — 1. Criminal Law Pleas Court Rules. judge, prior accepting guilty, A must waiving by inform the defendant of the he will be *2 making engage colloquy and a on the record waiver; explaining requiring to failure do so is error rever- (GCR 785.4). 1963, 785.7; sal Guilty— 2. Criminal Law Pleas. purpose requiring taking a a to concerning rights address defendant is he (1) waiving by pleading guilty gives plea- it twofold: taking opportunity court an to observe the defendant’s de- replies meanor and manner in he to the court’s (2) questions, pleading guilty and it the fact reinforces is a presumption serious occasion which the defendant sheds his being convicted; of innocence and assumes the burden of permit rights defendant waive recital of his lessens impact dignity judicial of the occasion and reduces the system. by Danhop, Guilty— — — 3. Criminal Law Pleas District Court Court Rules. judge, accepting plea guilty, A district court need orally explain rights waiving to the (DCR pleading guilty; writing indicating 785.3, so is sufficient 785.4[dj). Guilty Rights — — Appeal. — 4. Criminal Law Pleas Waiver of Appeals, reviewing The Court of when the issue of whether pled guilty properly rights, defendant who informed of his appears should not reverse the conviction where on record that the defendant was informed of such constitutional reasonably and incidents of a as trial to warrant conclusion that he understood what a trial is and that pleading guilty knowingly voluntarily giving up he was and his to a and trial to such and incidents. — — Arraignments 5. Criminal Law Court Rules. defendant, court, arraignment A at the time of his in district (1) must be informed of: the name of the for offense which he (2) charged; (3) permitted by law; the maximum sentence sentence, (4) mandatory any, minimum to the (5) trial, lawyer assistance aof to a and unless he App 132 op Opinion the Court correspond to a charged that does not an ordinance under sentence, jury jail to a trial criminal statute or (DCR 785.4[aj). J. Louis General, Kelley, Frank J. Attorney Holowka, Caruso, Nick O. General, Prose- Solicitor Rapp, Gary W. Assistant cuting Attorney, people. for the Attorney, Prosecuting Nowak, & Duckwall, Morgan (by Poniatowski Poniatowski), H. appeal. defendant on Donald for C.J., R. and W. Danhof, Before: Bronson JJ. Peterson,* jury aby Defendant was convicted
Per Curiam. the influence of driving while under a vehicle offense, 257.625; MCL third intoxicating liquor, appeal, the trial Following an initial MSA 9.2325. *3 hearing regarding the evidentiary held an court ap- conviction. Defendant now validity prior of a ad- from trial court’s order right as of the peals for proper a basis prior conviction judging third offender. conviction as a a vehicle pled guilty driving Defendant had at intoxicating liquor while under influence of coun- proceeding a district in without court At representing plea-taking proceed- him. that sel a form ing explaining he received engage did waiving, he was but trial court find the waiver. We any colloquy explaining improper colloquy that the omission of such a and that it renders for the plea-taking v People conviction infirm. See constitutionally (1979); Taylor, 238; 89 280 500 App Mich NW2d Lee, v 194; NW2d (1982).
* sitting Appeals by assignment. judge, Circuit on the Court People v Tallieu Opinion of the Court conclusion that colloquy contemplated Our language from the derives DCR 785.4. GCR 1963, 785.7, provides that "the specifically out” the carry imparting shall infor- plea-taking proceeding. mation at a ar- Plaintiff of this from DCR gues phrase absence 785.4 is not mandated colloquy indicates phrase Although ap- district court. this does not rule, pear in the district court language none- theless intent evinces an mandate colloquy plea-taking proceeding. district court provides:
DCR 785.3 writing permitted, "Unless a verbatim record proceedings before a under 785.4 subrules
785.6 must be made.”
DCR 785.4 provides:
"Arraignment, District Court Offenses.
"(a) arraigned Whenever a an on offense over which jurisdiction, the district court has he must be informed
"(1) charged; the name of the offense "(2) law; permitted by maximum sentence mandatory sentence, minimum any; "(A) to a lawyer assistance of to a (if "(B) applies) appointed subrule to an law- 785.4[b] yer; and
"(C) (unless charged under an ordinance that not correspond does to a criminal statute sentence) jail by jury. to a trial information be in a that is *4 file, part made a of the or the court on the record. "(b) indigent An right ap- defendant has a to an pointed lawyer whenever "(1) charged punishable the offense is more than days in jail; Opinion of the Court "(2) requires a charged on conviction the offense in jail; term or minimum
"(3) might him that sentence court determines the jail. to lawyer and is without a has indigent defendant "If an the appointed lawyer, right to an his
not waived jail. sentence him to may not "(c) lawyer, of a an the assistance The not jury trial is waived lawyer, or to a appointed unless the defendant
"(1) right; the been informed of has "(2) part writing a in that is made of has waived it orally on the record. file or "(d) plea of or nolo conten- accepting Prior dere, the court shall "(1) accepted, plea that is advise the defendant kind, up any gives have of so he not a trial he will rights he would at a have plea voluntary; determine that finding for a that defendant support establish charged to which offense guilty of offense pleading. accept unless it is con- "The court understanding, voluntary, that vinced added.) (Emphasis accurate.” only information which The rule states option imparting the district court has (other mail, plea by writing taking than when 785.4(a). A 785.4[e]) is that contained in DCR DCR made remainder of verbatim record must be 785.6, proceedings listed DCR 785.4 to one is the of a taking guilty plea. of which a "verbatim dissenting opinion interprets The spoken recording record” to mean either in the or the file. words inclusion of written forms interpretation spe- pointless Such an renders 785.4(a) rest of the exception cific from the option the information communicating rule. the file” is not part "in a is made *5 People v Tallieu 407 by Danhof, C.J. Dissent available to the district court it when advises of the consequences of pleading guilty; instead, the information must be "by on the record”. court 785.4(d)(1) of purpose
The DCR not different that of its counterpart, from circuit court GCR provide 785.7: to adequate advance notice of rights which are waived of plea. virtue purpose requiring to personally court address the defendant is two-fold.
"First,
gives
plea-taking
an opportunity
court
to observe the defendant’s demeanor
manner
replies
questions.
which he
to the court’s
"Second, it reinforces
fact
pleading
guilty is
a serious occasion at which the defendant sheds his
presumption of innocence and assumes the
burden
* *
being
waive the
*. To
the defendant
[convicted]
impact
recital
lessens the
occasion and reduces
dignity
judicial system.”
People Napier,
v
App
48-49;
Since which formed the basis of the prior invalid, conviction, conviction was turn, may not used as properly be here the basis for defendant’s as conviction a "third offender”. Accordingly, we reverse the trial court order ad- judging conviction to have been a proper basis for conviction as third offender.
Reversed and remanded. Danhof, (dissenting). I dissent from the 132 Mich by Danhof, C.J. third-offender majority’s of defendant’s reversal find the district I do not as conviction constitutionally infirm. The use of to be conviction plea-taking defen- invalidate form does my conviction, in view. dant’s 785.4(d) originally proposed The version *6 provided: Supreme by Court "(d) guilty or nolo conten- accepting plea Prior following: carry out the dere, the court shall defendant, directly to speaking will not accepted, he plea that if his is tell him shall gives up the any kind' so he have a trial would have at defendant, the court shall questioning by "(A) voluntary, and that the is determine "(B) finding that he is support for a establish charged. the offense plea unless it is con- accept not "The court shall voluntary, understanding, and that is
vinced accurate.” "per- providing language the court shall following”
sonally carry was deleted out 785.4(d) is thus of the rule. DCR to the enactment substantially 785.7, from GCR different personally carry requires: shall "the court 785.7(l)-(4).” in the two The difference out subrules "per- considering especially rules, that the the fact language sonally carry for considered out” 785.4(d) abandoned, leads me to conclude DCR require oral the district court rule does explanation by judge defendant waiving by pleading guilty. argu- upon 785.3 in his
Defendant relies required judge defen- to inform ment that 785.4(d). orally dant of his under subsection requires: 785.3 Subsection v Tallieu by Danhof, permitted, "Unless a verbatim record proceedings before under subrules 785.4 to 785.6 must be made.”
I interpret require subsection 785.3 to that a rec- ord be made of a defendant’s arraignment sentencing in district court.
For purposes arraignment review of an sentencing, complete record necessary, either recording spoken by words or including written forms file. DCR 785.3 was not violated here, as the written form received signed is included in the court file.
I am in agreement with
reasoning
expressed
Smith,
in this Court’s
People v
opinion
98 Mich
(1980).
Smith,
58; 296
NW2d 183
In
the Court
examined the purpose
1963, 785.7(d),
behind GCR
expressed
as
Supreme
in Guilty Plea
Court
Cases,
(1975):
96, 122;
395 Mich
" (d) primary 'The purpose of impress subsection is to *7 on the right purpose by accused that his of guilty he waives his to a appears trial. If it on the record that this achieved, has been or omission one another rights, of these right, other than Jaworski or imprecise of any right, recital including such Jaworski right, necessarily require does not reversal. " appeal 'On appears issue is whether on the record that the defendant was informed such consti- rights tutional and incidents reasonably of a trial as warrant the conclusion that he what understood a trial by pleading and that knowingly he was voluntarily giving up right his to trial and such ” Smith, supra, incidents.’ p 60. People Lockett, v See also 405, 409; 111 Mich App (1981), (1982) 640 rev’d NW2d (Danhof, C.J., dissenting). view, In my primary 785.4(d) purpose of DCR met was here. Defendant App 402 132 Mich by Danhof, C.J. form written clearly comprehensive, given was in the trial inherent all explained which by guilty. be waived would 1977 convic- defendant’s The circumstances was me that defendant persuade particularly tion pleading rights prior his informed of properly 1977, defen- hearing September on At a guilty. accepted, was guilty plea his arraigned, dant was the district court by pronounced and sentence 785.4(a) be that a defendant requires judge. of: arraignment informed "(1) charged; name of the offense law; "(2) permitted maximum sentence sentence, any; mandatory minimum "(A) lawyer and to a of a to the assistance "(B) (if appointed law- applies) to an subrule 785.4[b] yer; and "(C) (unless an ordinance that charged under he is or correspond a criminal statute does sentence) jury.” to a trial
jail (a) provides: final sentence of subsection The in a given be information file, on the part made a infor- the above Defendant here was record.” proceeding, in written form. At the same mation if he wished then asked declined. form to be read to him. Defendant then occurred: following colloquy maximum right. I indicated the "The Court: All As jail, and/or year penalty days is 90 is one —or right’s form? you Have read the fine. $1000.00 Yes, "Mr. sir. Tallieu: it, you’ve Sign it and date to show "The Court: *8 questions? you any it. Do have
read and understand No, "Mr. Tallieu: sir. v Tallieu by Danhof, Understanding things, you "The Court: these are
prepared plea, plea? your so, to enter a what is Guilty. "Mr. Tallieu: pleading guilty You’re fact, "The Court: because
you guilty? are Yes, sir. "Mr. Tallieu: promised you anything, No one has Court: or you any you get manner,
threatened you coerced plea? enter No, sir.” "Mr. Tallieu: then went on to establish a factual basis plea.
for defendant’s The record indicates that was defendant ample opportunity advised question regarding
any misunderstanding I have had. find no proceeding error in the district court and would affirm defendant’s third-offender conviction.