Opinion
Docket No. 783.
Decided March 29, 1968. Application for leave to appeal filed April 17, 1968. Decided December 2, 1968.
Appeal from Ingham, Salmon (Marvin J.), J. Submitted Division 2 December 7, 1966, at Lansing. (Docket No. 783.) Decided March 29, 1968. Application for leave to appeal filed April 17, 1968. Submitted on remand to Court of Appeals July 24, 1968. Decided December 2, 1968.
Benjamin F. Berry was convicted on plea of guilty of breaking and entering in the night time. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Donald L. Reisig, Prosecuting Attorney, and James R. Ramsey, Assistant Prosecuting Attorney, for the people.
Abood, Abood Abood, for defendant.
OPINION OF THE COURT
In response to the Supreme Court's remand order dated July 24, 1968, this Court has reconsidered on the merits the lower court's acceptance of defendant's guilty plea and our previous determination setting aside that plea, as reported in 10 Mich. App. 469. By its recent decisions, the Supreme Court has held that guilty-plea procedure is not to be judged by an inflexible schedule of requirements, but rather by a determination of whether essential justice prevailed. See People v. Hobdy (1968), 380 Mich. 686; People v. Dunn (1968), 380 Mich. 693; People v. Stearns (1968), 380 Mich. 704; and People v. Winegar (1968), 380 Mich. 719. Defendant was aware of his right to counsel, and the absence of an express waiver of that right is not reversible error. Accordingly, we set aside our earlier decision reversing the trial court and affirm the conviction.
J.H. GILLIS, J., concurred with McGREGOR, J.
In light of the determination of the United States Supreme Court in Johnson v. Zerbst (1938), 304 U.S. 458 ( 58 S Ct 1019, 82 L Ed 1461) as reiterated in Moore v. Michigan (1957), 355 U.S. 155 ( 78 S Ct 191, 2 L Ed 2d 167) and Carnley v. Cochran (1962), 369 U.S. 506 ( 82 S Ct 884, 8 L Ed 2d 70) a mere showing that the accused knew of his right to counsel is not, in itself, sufficient to show an intelligent and understanding waiver of counsel. In Carnley, supra, the court said:
"Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver." (Emphasis added p 516.)
I cannot read People v. Hobdy (1968), 380 Mich. 686; People v. Dunn (1968), 380 Mich. 693; People v. Stearns (1968), 380 Mich. 704; and People v. Winegar (1968), 380 Mich. 719 to permit finding an "affirmative acquiescence", and "affirmative waiver" of counsel as discussed in Carnley, supra, through a mere showing that the accused knew his right.
The trial court here interrupted defendant's question, "if I pleaded guilty * * *" by insisting on his plea. I find in this record no intelligent, understanding rejection of an offer of counsel as was required in Moore, supra and Carnley, supra.
Justice would be better served to let Benjamin F. Berry stand trial than read into this record a waiver of his constitutional right to counsel.