Opinion
Docket No. 9087.
Decided December 8, 1970.
Appeal from Oakland, Robert L. Templin, J. Submitted Division 2 November 9, 1970, at Lansing. (Docket No. 9087.) Decided December 8, 1970.
Paul W. Geving was convicted, on his plea of guilty, of attempted possession of marijuana. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Thomas G. Plunkett, Prosecuting Attorney, and Dennis Donohue, Chief Appellate Counsel, for the people.
Frances R. Avadenka, for defendant on appeal.
Defendant was originally charged with the sale of marijuana. After negotiation with the prosecutor the people moved to add the additional count of attempted possession of marijuana. He pled guilty to the second charge and was sentenced pursuant thereto.
MCLA § 335.152 (Stat Ann 1957 Rev § 18.1122).
MCLA § 750.92 (Stat Ann 1962 Rev § 28.287).
MCLA § 335.153 (Stat Ann 1957 Rev § 18.1123).
On November 29, 1968 the people's expert witness testified that he had first come into contact with the substance in the packet on December 23, 1968. Defendant claims that this conclusively shows that all testimony from this witness was incompetent and that therefore his motion to suppress the evidence (properly a motion to quash the information) should have been granted. This was obviously a misstatement of the date by the people's expert witness and the court correctly denied the motion.
The main contention of defendant is that his guilty plea was not properly accepted. An examination of the record in this case shows that the requirements of MCLA § 768.35 (Stat Ann 1954 Rev § 28.1058) and GCR 1963, 785.3 were met. There would be no merit in defendant's argument were it not for the recent case of Boykin v. Alabama (1969), 395 U.S. 238 ( 89 S Ct 1709, 23 L Ed 2d 274). Boykin, it is argued, renders this otherwise valid plea invalid.
This was a bargained plea. It is not invalid for that reason. People v. Jackson (1969), 20 Mich. App. 414. Defendant and his counsel were present when the plea was accepted. Counsel stated in open court that defendant wished to plead guilty, was in fact guilty, had been advised of his constitutional right to trial by the court or by a jury, that he must be proven guilty beyond a reasonable doubt and stated that he made his decision "freely and voluntarily, without coercion or threats". Defendant stated that he agreed with what his attorney said, that he understood the maximum sentence, and that he had in fact attempted to sell narcotics.
Boykin, supra, as interpreted by the United States Supreme Court in Brady v. United States (1970), 397 U.S. 742 ( 90 S Ct 1463, 25 L Ed 2d 747) and this Court in People v. Jaworski (1970), 25 Mich. App. 540, does not hold that there must be an on-the-record waiver of each of the enumerated constitutional rights before a guilty plea can be accepted. The United States Supreme Court, rather, emphasized that a waiver could not be presumed from a silent record devoid of any affirmative showing that the defendant voluntarily and understandingly entered his plea.
The record of the guilty plea in this case is not a silent one. While brief, it shows that the entry of the plea of guilty fully complied with all the requirements of the Michigan statutes and court rules and with all the Federal constitutional requirements.
The people do not oppose defendant's contention that he is entitled to receive credit for an additional 209 days spent in the county jail. He should be allowed same.
There being no error, the decision of the lower court is affirmed and defendant is awarded his jail time.
Affirmed.