43 Mich. App. 551 | Mich. Ct. App. | 1972
Defendant was convicted on his plea of guilty on August 26, 1971 of the
"The Court: All right. Thank you, counsel. . Mr. Sanderson?
"Mr. Sanderson: Your Honor, I have discussed this matter with my client, and we have talked over this at some length the other day in the state prison. And, I have advised him that, of course we could go through a jury trial, or have a trial before this court without a jury, and that they would have to bring in the witnesses to testify against him; and after discussing all the possibilities here, he advises me that he wishes to tender a plea of guilty to the court.
"The Court: Thank you. How old are you, Mr. Washington?
* * *
"The Court: All right. Do you understand during the trial, as your counsel has mentioned that you are presumed to be innocent, and the presumption continues throughout the course of the trial until the trier of the facts, that is the judge or the jury, have arrived at the conclusion that the people have proven your guilt beyond a reasonable doubt? And, a reasonable doubt is usually defined as a fair doubt. Do you understand that?
"A. Yes, sir.
"The Court: Do you understand that you, yourself, may remain silent during the trial without prejudice or take the stand in your own behalf, and you have the right to call witnesses in your own behalf?
"A. Yes, sir.”
The transcript of defendant’s arraignment discloses he was informed of his rights to trial and to confrontation by the court in the following manner:
*553 "The Court: You are also entitled to have a trial either by judge or by jury and to be confronted by those persons who have accused you of this offense, do you understand that?
"Mr. WashingtomYes, sir.”
On appeal defendant claims he was not informed of his constitutional rights to trial and to confront the witnesses against him prescribed in Boykin v Alabama, 395 US 238; 89 S Ct 1709; 23 L Ed 2d 274 (1969), and People v Jaworski, 387 Mich 21 (1972). We disagree.
The question before us is thus whether an "on the record” informing of defendant of his right to a trial by judge or jury and his right to confront his accusers at his arraignment will satisfy the Boykin and Jaworski requirements. Stated in more pragmatic terms: Is a guilty plea properly accepted where a review of the record reveals that defendant was informed of his rights at a prior hearing?
A review of the language used by the Supreme Court in the recent opinions regarding guilty pleas convinces us that the lower court record can be combed to ascertain whether the defendant was informed of his rights at any time prior to the acceptance of his plea. The Court in People v Johnson, 386 Mich 305, 316 (1971), in discussing the failure of the trial judge to inform defendant of his right to confront witnesses and of the presumption of innocence, noted:
"Though the plea proceeding transcript is improperly silent as to the above points, it is possible that the proper instructions to the defendant took place at an earlier stage of the proceedings. Therefore, on remand, the trial court should determine whether the defendant was properly informed on the record at any time prior to the acceptance of his guilty plea. * * * If the evidentiary hearing does not disclose that the defendant was*554 substantially informed of each of his rights, then his motion to vacate his plea of guilty must be granted.” (Emphasis supplied.)
Again in People v Butler, 387 Mich 1, 8 (1972), the Court noted:
"The cases hold that a defendant must be substantially advised of each of his rights. People v Winegar, supra, People v Dunn, supra, and People v Jaworski, 387 Mich 21 (1972). As noted previously, a thorough review of the record of the lower court proceedings in the instant case fails to disclose that the defendant was ever advised concerning his constitutional right against self-incrimination. Therefore we must vacate the defendant’s conviction and remand to the circuit court for further proceedings consonant with this opinion.”
The language in People v Jaworski, supra, 31, also implies that review of the records of all lower court proceedings can be referred to in order to determine if defendant has been properly informed:
"Review of the records of all lower court proceedings reveals nothing which supplies this deficiency in the plea proceedings. Therefore, we must vacate the defendant’s conviction and remand to the circuit court for further proceedings consonant with this opinion.”
Our reading of the above cited cases convinces us that any "on the record” informing of defendant of his rights, no matter at what stage of the proceedings and no matter by whom it is done, is sufficient to satisfy the requirements laid down in Boykin and Jaworski.
Both Boykin and Jaworski require only that waiver of the enumerated rights cannot be presumed when the record is silent as to whether defendant was made aware of those rights. Here defendant was clearly informed of his right to confront his accusers and to his right to a trial either by judge or jury not only at his arraignment but by his counsel at the time of the plea. This was all that was required.
Affirmed.
We would hasten to add that we are here speaking only of those guilty pleas entered prior to the issuance of the guidelines which accompanied People v Rufus Williams, 386 Mich 277, 299-304 (1971). These guidelines and the proposed amendments to GCR 1963, 785 require that the trial judge who accepts the guilty plea must personally inform defendant of the enumerated rights.
See People v Taylor, 387 Mich 209, 225, fn 10 (1972); and People v Zaleaki, 375 Mich 71, 81-84 (1965).