Opinion
Docket No. 19702.
Decided February 25, 1975.
Appeal from Recorder's Court of Detroit, John R. Murphy, J. Submitted Division 1 January 16, 1975, at Detroit. (Docket No. 19702.) Decided February 25, 1975.
Dennis M. Marshall was convicted, on his plea of guilty, of assault with intent to rob being armed. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Patricia J. Boyle, Principal Attorney, Research, Training and Appeals, and Arthur N. Bishop, Assistant Prosecuting Attorney, for the people.
Jay N. Siefman, for defendant on appeal.
Before: R.B. BURNS, P.J., and BRONSON and M.F. CAVANAGH, JJ.
Originally charged with armed robbery, MCLA 750.529; MSA 28.797, defendant-appellant, Dennis M. Marshall, pled guilty on April 10, 1972 to an added count of assault with intent to rob being armed, MCLA 750.89; MSA 28.284. He was sentenced on April 24, 1972 to a term of from 10 to 15 years in prison and appeals by leave granted, arguing that the plea proceeding below was infected in several instances with reversible error.
His claim that the trial judge erred in failing to grant him access to the presentence report prepared in his case was very recently considered in People v Martin, 393 Mich. 145; 224 N.W.2d 36 (1974). In Martin the Supreme Court held that, People v McFarlin, 389 Mich. 557; 208 N.W.2d 504 (1973), to the contrary notwithstanding, prior to the September 1, 1973 effective date of GCR 1963, 785.12, neither the defendant nor his lawyer have an absolute right to study the contents of a presentence report. Under the circumstances here, absent a request below by defendant for access to the report and absent any indication that the trial judge abused his discretion in failing sua sponte to divulge the contents of the report, we cannot say that reversible error occurred.
Marshall also claims that it was error for the trial judge to have failed to inform him of the elements of the offense to which he was pleading guilty. Neither the then applicable court rule, GCR 1963, 785.3(2), nor contemporary case law required that the record affirmatively show that a defendant was made aware of the elements of the crime. People v Rufus Williams, 386 Mich. 277; 192 N.W.2d 466 (1971), is often misread in this regard; that case merely outlined "SUGGESTED GUILTY PLEA TAKING GUIDELINES", Williams, supra, at 296, which foreshadowed the now mandatory amendments to GCR 1963, 785. Nothing in Williams was ever meant to require that certain procedures be followed in cases arising prior to the effective date of the amendments to GCR 1963, 785. Indeed, not even present law, GCR 1963, 785.7(1)(a), requires that the elements of the offense be disclosed: " * * * [T]he court is not obliged to, but may explain the elements of the offense * * *". GCR 1963, 785.7(1)(a). (Emphasis supplied.)
See, e.g., People v Morgan, 28 Mich. App. 594; 184 N.W.2d 471 (1970); People v Horace, 36 Mich. App. 666, 670; 194 N.W.2d 128, 130 (1971).
Next, the following advice concerning Marshall's right of confrontation is said to have been insufficient:
"The Court: If you had a trial you wouldn't have to be alone at that trial. You can have your lawyer with you throughout the trial. He can do a lot of things for you and he can question the witnesses for you. He can subpoena witnesses on your behalf and make legal arguments for you and give you advice and help you in a lot of other ways. Do you understand that?
"Mr. Marshall: Yes, sir." (Emphasis added.)
Language very similar to that underscored above was upheld as sufficient to inform a defendant of his right to confrontation in People v Mathis, 52 Mich. App. 140; 216 N.W.2d 467 (1974), and People v Sanders, 54 Mich. App. 541; 221 N.W.2d 243 (1974). The following quotation from Mathis, supra, at 142, states our view of the matter:
We acknowledge, but decline to follow, a contrary line of case law on this question. See People v D'Argis, 44 Mich. App. 186; 205 N.W.2d 19 (1972); People v Purdy, 46 Mich. App. 630, 632; 208 N.W.2d 581, 582 (1973); People v Thomas Mathis, 55 Mich. App. 699; 223 N.W.2d 312 (1974).
"The plain meaning of this advice to the accused that on trial he would be entitled to the services of an attorney `to examine witnesses' certainly cannot be read to exclude witnesses against him. Such common ordinary everyday language conveys much more understandable meaning than the pronouncement of the right to `confront your accusers'."
Marshall's final claim of error is prematurely raised. He urges that the prohibition against conditioning guilty pleas on the waiver of the right to appeal, established in People v Butler, 43 Mich. App. 270 ; 204 N.W.2d 325 (1972), and reaffirmed in People v Ledrow, 53 Mich. App. 511; 220 N.W.2d 336 (1974), was ignored in this case. The record before us does not sufficiently support the error asserted. A copy of a letter addressed to Marshall and apparently written by a lawyer appointed to represent him in another, unrelated, case in a different jurisdiction suggests that this other case was to be dismissed in the event that Marshall did not seek appeal by right in the instant case. It appears that this other charge was in fact dismissed after the statutory appeal period in the present case expired.
However, Marshall has not sought, either by motion for new trial or otherwise, to raise this issue in the trial court. We have no way of knowing whether in fact the dismissal in the other case was conditioned on Marshall's foregoing his right to appeal or whether, instead, the decision to dismiss was not made, or even considered, until after the appeal period in this case expired. In other words, there is nothing in the record which indicates to what extent the two cases are related for Butler purposes. We accordingly express no opinion on the applicability of Butler to these facts. We further reserve judgment on whether Butler is to be applied retroactively. See People v Ledrow, supra, at 514. Marshall must first seek to have these questions answered in the trial court:
"A defendant who wishes to advance claims that depend on matters not of record can properly be required to seek at the trial court level an evidentiary hearing for the purpose of establishing his claims with evidence as a precondition to invoking the processes of the appellate courts * * *." People v Ginther, 390 Mich. 436, 443-444; 212 N.W.2d 922, 925 (1973). See also, People v Taylor, 387 Mich. 209, 218; 195 N.W.2d 856, 861 (1972).
Affirmed.