*1 209 APRIL TERM,
PEOPLE v TAYLOR op op Guilty Record—Appeal and Error. — Criminal Law —Plea 1. arising pleas guilty from type request for review One record; logically matters not the on facts contained relies trial court because type must be reviewed the of this testimony prior record. not a matter requires fresh Guilty Record—Appeal — Error. Criminal Law —Plea 2. already showing on reeord matters not the All involve cases that involunary claiming pleas of based such as cases brought in the alleged beatings or first be inducements must trial for review. court Appeal op Guilty Court — —Trial Criminal Law —Plea
3. Error. Commencing pleas in trial court post plea review of by motion has the preferable such policy review con- advantage judge opportunity to giving trial prior complained of action or sider whether steps not, necessary to correct not, and, if take or correct similar the ease it, appellate would receive court excep- specific had on a ruled trial case after the trial court necessary, review adversary arguments if and such tion with the additional would have by motion court level at the trial original with- being brought court before benefit procedures. appellate expense initiating delay and out Guilty Appeal and Error. — 4. Criminal Law —Plea commencing post review procedure Proper requires cases where exception obvious of certain trial court with the ex- for where doing non-productive; so futile and would be Headnotes Points References 2d, Law 495. Am Jur Criminal § 1-9] 2d, Appeal 5 5 Am Jur and Error 901. Am Jur § 10] 11] 2d, Appeal and Error 912. § ample already brought has been the basis review to adversely ruled attention of the trial he has on it *2 or has on refused to it. the record consider op Guilty op 5. Criminal Law —Plea —Withdrawal Plea —Con- Appeal Vacating stitutional Law — and Error — Plea. taking Motion in trial to court review the of the plea is a for appeal not substitute defendant’s constitutional as a right; matter of if the trial court denies the motion to vacate, or appeal right review then the as a matter of lies taken; if proper steps a such motion should often necessity obviate the an right as of because the many in trial court instances will be able to correct the alleged plea (Const 1963, error or vacate the §20). art op Guilty Appeal 6. Criminal Law —Plea — and Error —Sua Sponte Review. Michigan Supreme Court will exercise its inherent to sponte sua acceptance review plea of a although properly the review begun more should have in the trial court argued courts, where the case previously had been since two opinion there had been no Michigan definitive from the Supreme proper practice, Court on the and since it would injustice work an on the to be defendant remanded to the trial court without consideration of the merits. op Guilty Criminal 7. Law —Plea —Voluntariness—Court Rule. Trial court accepting made a reasonable plea * * * effort a guilty in plea freely 1960 to “ascertain that the was voluntarily and made, influence, without compulsion, undue duress, or promise leniency” and without where defend- ant, response questions by court, to confirmed that the plea voluntary, promised was any- free and no one had him thing, no one plead guilty, had him induced he was pleading guilty guilty, plea he because was and his was of (Court [1945]). own free will Rule No 35A op Guilty op 8. Criminal Law —Plea —Examination Accused— Understanding Plea. Provision in a court rule shall examine that “the court' * * * * * * accused shall ascertain that was * * * * * * understanding^ requires made” conduct such an examination toas show that what the defendant actually did was a indeed crime not or otherwise could understandingly plead guilty, if he did what it, pled guilty to it would crime, if he a then actually not [1945]). (Court 35A understanding plea Rule No an be op Guilty Pacts —Pre- —Examination Law —Plea 9. Criminal Appeal liminary and Error —Remand. Examination — ' guilty, accepting duty, before Trial court’s convince the facts which would by examination its ascertain by the defend- had been committed a crime court that indeed legal equivalent ant; not the examination sueh had fulfilled objectively the court indicate it must but appear in that such facts obligation; is not sufficient where the preliminary examination the record examination, necessary show the presented does not record remanded and the ease guilty should be vacated plea of appropriate proceedings. court to the trial Dissenting E. JJ. and T. Brennan, Black por Appeal Reasons Error —Dissent Justice —Written 10. *3 op Negative Summary Reason —Constitu- Statement Dissent — Law. tional writing “give required in dissents, Justice, when he A dissent”; however, advent and since reasons for Michigan Michigan Supreme constitution, Court present authorizing language applied quoted has construed and 196S, 6, (Const art summary negative reason a statement of §6). Appeal Merit.
11. Criminal Law — and Error —Lack merit lack be conviction should affirmed for Defendant’s appeal submitted grounds has presented where the been in the trifling Michigan Supreme nature and to the Court thereof fully exposed. 2, Quinn, Division Appeals, from Court Appeal Bronson, JJ., denying ap- and P. and J., McGregor from Becorder’s Court for plication leave May 6, J. Submitted Detroit, Murphy, George Docket No. 52,920.) 24 Term (No. April 1971. Decided April 6, 1972. on convicted,
Bobert bis guilty, in the Defend- entering and breaking daytime. Mich Opinion op the Court superin- Appeals for motion to ant’s the Court of tending application an control, treated as de- layed appeals. appeal, denied. Defendant Reversed and remanded. Attorney Kelley, Robert General, A.
Frank J. Derengoski, William L. Gahalan, General, Solicitor Attorney, Prosecuting Dominick Gamovale, R. Bishop, Appellate Department, N. Arthur Chief, and Prosecuting Attorney, people. for the Assistant Appellate Arthur Tarnovo, Defender, J. State Burgess, Defender, Jane Assistant defendant on appeal. dispositive J. Two issues are in this Williams,
case. plea first issue is whether review of a begin being must in the trial court before heard appellate courts. The second issue is whether the trial in this case met the standards of (1945), Court Rule No 35A Barrows, (1959) taking guilty plea.1 a 1960 charged originally The facts of the break- offense, ing entering place nighttime business larceny, significance with intent to commit a have no appeal. pled guilty this case Defendant specially Detroit Recorder’s Court to added count breaking entering daytime, in March 1960. *4 1 If retried, this case should be then the second issue raised people appellate brief, namely their probation was the five-year revocation statutory taken within period would become
pertinent.
specific
issue is to what extent
is the statute tolled
since
years
begin
the revocation action did not
eight
until more than
original
Browning
after
probation.
sentence
See
Michigan Department
Corrections,
On defendant 1960, was on one year’s probation plus costs and $100 restitution. $100 April probation year’s On after the 4, 1961, was probation year over, defendant’s was extended one practically nothing March 1962, 28, because had paid been on the account. July probation a warrant for 6,1961,
On violation probation was presented after a notice of violation issued, warrant for with arrest because defendant probation had violated his conditions in two re- spects. notifying Defendant had moved without Department. Probation had Defendant been named robbery charge. as a defendant in a armed Defend- probation ant going stated the told him “I officer am you you to violate the next time come down with here money. no again. ISo never came back This was year in the 3-29-1961.”
By his own admission defendant absconded to in 1963. 2, California On December he was prison robbery sentenced to there for armed and was July not released until 23,1968. jumped parole
Defendant in California and re- Michigan. picked up, turned to He was soon charged probation probation with re- violation, voked and on November 14,1968, sentenced to 4-1/2 years prison. to 5 pro assigned
Defendant se and defendant’s coun- separate pleadings. sel pleadings filed Defendant’s pro may quickly disposed se be of. On December pro corpus 1968, defendant se filed habeas Appeals prison. Court of from Jackson At the same requested indigent, time he counsel anas which was granted February February 3,1969. On 26,1969, requested appeal. July, leave to 1969,the habeas corpus delayed appeal, writ, treated as a was denied prejudice without pleadings by duly ap- favor of pointed counsel. *5 Opinion op the Court attempted file a claim of counsel to
Defendant’s by appeal, May returned but was 1969, 23, Appeals May with a 1969, Court of Clerk letter 29, advising application pendency of an for de- by propia persona layed appeal in defendant judgment probation ap- “a of that pealable violation is not right”, citing
as a matter of Galhotm v Judge, County App Macomb (See 5.) footnote The a court file shows letter dated June 30, from defense counsel an intention supplemental corpus, to a file writ habeas but the actual writ seems not to have been filed. pleadings begin with definitive defense coun-
The Appeals in motion March 31, sel’s filed Court superintending It is two control. based on 1970, grounds, plea-taking
the failure the court in the participation to defendant’s ascertain the facts of (1945), Rule 35A the crime—Court No the lack legal jury. people by waiver The moved “superintending to dismiss on the first that basis (mandamus) control be used in lieu cannot probation appellate matters which do courts flagrant not interfere in the absence of violation of rights” incarceratory constitutional and second “an sentence cannot be used as collateral attack anon long delayed original probation unchoate or- people reply day der”. filed a brief same arguments. May with the same On 5, 1970, people supplemental support filed a brief in of their proposition motion to dismiss addressed to the may probation a trial any amend a order at statutory years plus time within the five the time the absconding probationer. statute is tolled an On May argumen- 15, 1970, defendant’s counsel filed an tative answer to motion dismiss.
On June Appeals, 5,1970, treating the Court of complaint superintending appli- “as an control appeal pursuant delayed GCR
cation for application 711.4(2)”, “denied for lack ordered such presented” consequently grounds of merit Sep- as moot. On the motion dismiss denied *6 granted appeal. this tember Court leave 22,1970, — Begin Guilty I. Review Pleas the Should of
Trial Court? question guilty pleas of The whether of review begin appears should in the trial court to be of one impression in first this Court. types requests
There several of for review pleas guilty. type which from arise of One such not relies facts contained in the record. Often allegations contradicting involved are the voluntari- plea. Logically ness of type the matters of this must be reviewed in the requires trial court because it testimony prior fresh not a matter of record. specifies order There is of this one Court which plea guilty that where the voluntariness of of is requiring involved evidence not on the record, that begin case should in the trial court. The of order this Court in v Kenneth Carlton, Jr., Su preme No Court as follows: 51,240, “The Michigan,
State of
Plaintiff,
vs.
Kenneth Carlton Jr.
Defendant. “In application this cause an is filed defendant appeal leave to from order of the court of appeals denying delayed appeal, leave to take a and- an filed having answer in the nature of affidavits been by plaintiff, applica- On Order of Court, tion appeals for leave to from the court is of Opinion op the Court DENIED for considered is same reason justification presented. no therefor Bay- is REMANDED to the circuit court cause of county jurisdiction and to assume to make a deter- upon separate mination record of voluntari- plea ness the written and of confession by petitioner made on December At 20,1960. hearing, prosecuting after due notice to the attorney, may the defendant Carlton take the stand testify purpose making for the limited record his version the facts and circumstances under which the confession was obtained and the By doing, so made. the defendant not waive his does on trial in decline to take the stand if chief, of retrial ordered, nor does any rights stemming’ waive the other from his testify. choice judge, hearing
“If the trial on the basis of the record made before determines that him, *7 guilty involuntarily was made, he shall enter an vacating plea guilty order the sentence and the rearraigned required and the defendant shall be plead anew to the information. The said order judgment purposes shall constitute a final July review.” 1965. 15, commenting People In on this order in Carlton, v App (1966), Appeals 5 Mich 23 the Court of said: Supreme “The Court remanded the case to the trial court to determine the of defend- voluntariness plea guilty. ant’s confession and his The lower court of plea was instructed to vacate the sentence and
guilty, hearing, after if, he determined that the plea involuntarily pro- was made. The order also vided that the order of the lower court would consti- judgment purposes a final tute of review.”,. People App See also v Horvath, 25 Mich 649-650 *“ * * (1970): proper forum for entertain- 217 People v Opinion op the Court ing post-plea allegation involuntariness supported by People the record is the trial court.” App (1970); People Dorner, v 24 Mich 308 v Kenny App (1969). Smith, 20 Mich 307-308 involving the modern cases review
There are other
guilty
with
facts out
of the voluntariness
begun
review was
the record
which
side
though the issue of
such review
court,
where
People
begin was not raised. See
v
should
Rufus
Roger
People
(1971);
v
Williams, 386
277
People
(1971);
Goldman,
Mich 305
v
Johnson, 386
(1929); People Williams,
v
225 Mich
*8 There little was to pleas Supreme error review writ of to the “voluntary” even in the cases. Court, Edwards v People, Henning (1878); People, 39 Mich (1879); People, Mich 733 Clark v Mich 308 (1880); People Ferguson, (1882); Mich 41 Peo- to the trial court. under which direct [364] for habeas [3] [2] motion In The course of review Mich 471 corpus the trial court then Chief (1961) with this which the defendant Justice not might Court, to the altogether T. E. be with an appeal proper. Brennan clear. He filed ancillary court and commencement followed discusses conditions writ of certiorari in In re a petition Valle, Mich 209 387 218 People Coveyou, (1882); Lepper, ple 48 353 v v Mich People (1883); 68 Ellsworth, v Mich 196 plus statutory (1888) construc —voluntariness Bayliss People, (1881) tion. esting v inter question of because on the a voluntariness, writ of certiorari was issued to and he investigation made a return on the extent showing might begun that the case well made, have assigned there. There were other errors. The re considering cent order Carlton instead of appeal, merits on these cases do, as remanded the merits to trial court. showing
We hold all that cases involve matters already claiming not voluntary on the record such as cases in-
pleas alleged beating's based on or induce- brought ments must first be to the trial court re- authority view. Carlton is for this and overrules, if following silentio, sub the earlier cases different practice.4 involving testimony
In addition to these cases strong practice bringing on the record there is guilty plea cases for review of decisions first although trial court, there are some that have been brought Appeals. first to the Court of group
Bumpus suggests
another
where
cases
in the trial court.
the review was started
There are
question
several
raise the constitutional
along
question
to counsel
with the
of whether
given. People
“understandingly”
(1968) right
Dunn,
There least three other where the cases appear issue should on the record. Edwards, Henning, Ferguson, supra. See Ciarle and *9 219 People v op Opinion the Court question (1968)
Lang,
393
381 Mich
the
was one of
interpretation
right
parole
statutory
of the
of a
“flop” the defendant
an indeterminate
hoard to
in
parole
Palmer,
In re
revocation.
In
after
sentence
People Parshay,
(1963) and
v
379Mich
Upon consideration of all of these we cases, find App 416 (1968) was Defender’s Office Detroit, Michigan 48226 mitted pending in pealable We are filed Judges, JOD/jl” “Mr. Carl Levin under the “Be: “ce: Samuel Torina “Dear Mr. Levin: the One of Penobscot by Beeorder’s Court #A101483 Court of returning as a matter of [sic] “May 29, 1969 decision of this the above cause. We these defendant vs. Bobert #4400, a Appeals concerning Building Court an cases, herewith referred right. Taylor Calhoun v Macomb in judgment Court pro application a claim to in a per. “James O. “Yours truly, Memory advise In addition, letter instant probation you Calhoun v. Macomb delayed appeal from the Assistant Clerk Devereaux, County case: that which violation we advise there Judge, you Jr. which was have sub- presently you not County that ap- Opinion op the Court post commencing pleas review preferable policy. trial court is advantage by giv- motion has the review
Such judge opportunity ing consider complained prior his whether or not of action steps necessary if not, was correct or to take not, and, steps probably it. correct would be vacate Such permit the sentence and the withdrawal proceed only afresh. Not the trial would opportunity to consider or have whether ruling action was as would a trial correct, when objected appellate to, but the court would receive the case to a similar trial case after the trial court specific exception adversary had on a ruled with arguments necessary. if
Such review motion at the trial court level being brought would have the additional benefit of original delay before the trial court without expense initiating appellate procedures.
Beneficial as commencement review in the trial *11 may court there are certain where be, obvious cases doing non-productive. so would be futile and Where example already the for review basis has been brought judge to the attention the trial of has adversely ruled on it or has on the record refused to patent consider it, it would abe of waste time and require bring act to useless the defendant to again. matter to the attention of trial court exception With the of such cases as the foremen- proper procedure requires tioned we hold that com- mencing post plea review in the trial court.
This returns consideration
correction of error,
appropriate,
guilty
if that
or
is
the withdrawal of the
plea after
to the sound
sentence,
discretion of the
People Vasquez,
trial court.
v
should have been
the trial court. However,
already
argued
it has
since
been
in two
since
courts,
opinion
heretofore there
been
has
no definitive
from
proper practice,
this Court on the
since would
injustice
work an
on the defendant to be remanded
point
to the trial
at
court
without consideration
we will
our
merits,
exercise
inherent
sponte. People
review sua
Dorrikas,
II.—Did the Trial Meet the Standards Barrows? language The critical Barrows, (1959) Mich 267, is as follows: questioning “The direct of a defendant required by the rule purpose for participation establishing the crime and the person pleading guilty.” therein of the *12 transcript pertinent The whole to defendant Taylor Robert is set out below: Taylor Opinion op the Court Sylvester “The Court: vs. Harris, breaking’ and Harold Robert and Jenkins, place entering night in tbe business time with in- larceny. commit tent to Flanigan prosecutor] [assistant “Mr. : I move to breaking entering daytime. add a count in tbe granted. “The Court: Motion or, “Mr. Gillis I have discussed this matter [attorney # # defendant]: [*] with Mr. Taylor, Your Hon- ad- right by jury vised him of to or bis tbe tbe I Court if be have him of wishes. also advised penalties charge maximum involved on tbe of break- ing entering daytime in tbe full after dis- cussion be advised me that be has wishes with- plea guilty plea guilty draw of not and enter a to tbe added count. prosecutor?
“The Court: that all with Is tbe Flanigan: your Honor. Yes, “Mr. Taylor, you plead Court: “The Robert want place
guilty breaking entering a business larceny? daytime tbe with tbe intent to commit “The Yes. Defendant: “The Court: Your free and vol- untary? “The Yes. Defendant: promised you anything?
“The Court: one No has “The “The Court: No. Defendant: you plead one No induced has guilty? “The No. Defendant: pleading guilty “The you Court: are You because guilty? “The Yes. Defendant: your
“The Court: Your own free will? “The Yes. Defendant:
“The Court: What? “The Yes. Defendant: *13 209 224 op Opinion the Court plea guilty accept the I will of “The Court: entering place day- breaking a business larceny. commit Refer to time with intent to Clinic Department. Probation two weeks Sentence, today.” from plea-taking apposite language in the
The most hearing presents are with: “The Court: You us pleading guilty you guilty? because are transcript a
The trial court as
shows made
according
reasonable effort
to the
standards of
* * *
day
plea
freely,
to “ascertain that the
was
voluntarily
without undue
com-
made,
influence,
pulsion,
promise
or
leni-
duress,
without
ency”.6
question
“understandingly”7
On the
procedure
satisfactory.
is less
provision
“the court
examine
that
shall
The
* * *
* * # and
shall ascertain that
accused
*
* *
*
*
*
understandingly
was
requires
an exam
made”8
to conduct such
actually
as to
ination
show that what the defendant
did was indeed
crime or otherwise he could not
understandingly plead guilty.
If what he did was
actually
pled guilty
not a
then if
crime,
it,
understanding plea.
would not be an
judge’s examination
far
In
case the
so
the instant
plead
was to ascertain
are
the record
“You
shows
guilty?”
puts
ing guilty
you are
This
because
know whether indeed he
burden on the defendant to
might
legally guilty,
and of
and he
well
what,9
judge,
accept your plea,
decided
stance,
“The Cowrt: All
7 Id.
“Let me see if
8 Bid.
Court Rule No 35A §
the record
by
necessity
evident
this Court:
I
from the
of such
you
right.
have to know whether
are
examination
(1945).
really guilty
surprises
proceeding
it often turns
you
the defendant
anything.
another
up. See,
Before
case
by
anything,
the trial
recently
I can
in-
Merhige,
not understand. a recent newspaper also assertions See plead guilty that defendants article, example, believe are in- they although they Wayne County jungle Wayne nocent out just get (Detroit Free October jail. Press, County 1971.) to ascertain duty it is the court’s event any *14 the court would which convince facts examination
its
committed
the de-
by
had been
a crime
indeed
the equivalent
is not
Such examination
fendant.10
day
you actually
you
and
did
on this
where
tell me where were
so
Volkswagon?
take a
your Honor,
four o’clock
Well,
it was about
“The
Yes.
Defendant:
Edwards,
Avenue.
morning
close to Home
in
and it was on
City
in
Elint?
“The Court: That’s
“The
Yes.
Defendant:
right.
“The
All
Go ahead.
Court:
I
I
and
drove
I
started it
And went
“The Defendant:
away.
key in
you,
ear?
“The Court: Let me ask
was the
No, your
“The
“The Court:
Honor.
Defendant:
you get
did
it started?
How
ignition.
“The
a different
With
Defendant:
you
ignition?
“The
a different
How
Court: What do
mean with
put
motor
you
you
out and
another
could
mean
took one motor
—You
in?
ignition
on
No,
“The
“The Court:
“The
switch
the switch—
Defendant:
Well,
you
how did
do that?
Volkswagon,
I
I
a—I
Well,
had
have a
Defendant:
prongs
up
put
three
on it and started it.
lifted
the hood and
Oh, you
Volkswagon yourself?
“The Court:
own a
Yes, your
“The
Honor.
Defendant:
you
“The
and then what
Court:
I
And
drove this around
see.
you
did
do?
changed
plates
it, and I
“The
I
license
towed—
Defendant:
—
away?
“The Court: Towed? T-o-w the car
“The
mine out into Clio to a farm.
Towed
Defendant:
switching
you
“The
Court:
other words
were
automobiles?
your
Yes,
“The
Honor.
Defendant:
higher offense,
Actually,
really
you
“The Court:
Now,
your plea
accept
to the lesser offense.
but
the Court will
young
you have ever been
court
man, has
first
this been the
time
Genesee Circuit
adult,
Prosecutor v
as an
Genesee
Circuit Court?”
Judge,
(1972).
the court bad fulfilled this presented Since the record as does show the necessary guil- examination, defendant’s ty is vacated and case is remanded to the trial appropriate proceedings.11 court appropriate proceed- Reversed and remanded for ings.
T. M. Kavanagh, C. and T. GL J., Kavanagh concurred JJ., with Williams, J. Swainson, concurred in J., the result. Adams, opinion, (dissenting). The Court’s J. Black, standing days typical these for reversal an- application denying other order another belated professional original another felon review of his (March 1960), conviction was delivered to the 9,1971. writer December required “give dissents,
When Justice writing (Const the reasons for his dissent”. *15 6.)§ regularly having I art do so with detail, progressively necessary years; found in recent certainly year most this about-to-end How- 1971. present and since advent of ever, constitution, applied quoted we have language construed and authorizing summary as nega- for cases at bar a tive statement of reason. That is what Division (Court Appeals has done here order of June language is): 1970, of which application ap- delayed “It ordered that the is peal hereby be and for lack of the same is denied grounds presented;”. merit in the passing, this matter of whether worth Court not satisfied that considering jury defendant waived on the merits. J. Black, Dissenting Opinion been submitted has instant Now pro exposed, fully I trifling thereof nature and the mercifully from our eliminate
pose time to lengthy futil exercise pages printed another majority still pants literally to vote ity. a clear When appeals hearings criminal round new prosecution years ago,* originating more than precedent setting up for more like-de another thus layed quite frivolity, to write it would be bootless appeal any statement of reasons over for this Appeals Judges which Court of above that Qtjinn, McGregor recorded. have Bronson, I to affirm and therefore dissent. vote E. T. J. J., Black, concurred with Brennan, * enough Dor of defendant’s the details adventures and mis- majority opinion, ante law, with the see 213. adventures at