Opinion
Docket No. 10851.
Decided May 20, 1971.
Appeal from Genesee, Donald R. Freeman, J. Submitted Division 3 May 4, 1971, at Grand Rapids. (Docket No. 10851.) Decided May 20, 1971.
Havit Fisher, Jr., was convicted, on his plea of guilty, of assault with intent to commit robbery being armed. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert F. Leonard, Prosecuting Attorney, and Donald A. Kuebler, Chief Assistant Prosecuting Attorney, for the people. William A. Shaheen, Jr., for defendant on appeal.
Before: R.B. BURNS, P.J., and HOLBROOK and LEVIN, JJ.
On June 29, 1970, defendant, Havit Fisher, Jr., pled guilty in the Genesee County Circuit Court to the crime of assault with intent to commit armed robbery. MCLA § 750.89 (Stat Ann 1962 Rev § 28.284). Appearing with counsel, defendant admitted robbing, at gun point, a cleaning establishment in Fenton, Michigan, on April 16, 1970. On July 30, 1970, after choosing not to withdraw his plea of guilty, defendant was sentenced to 10 to 20 years in prison.
Defendant raises two issues on appeal:
1. Did the trial court err in accepting the defendant's guilty plea in the absence of a specific waiver of defendant's rights?
2. Do allegations of promises of leniency require reversal?
I
Did the trial court err in accepting the defendant's guilty plea in the absence of a specific waiver of defendant's rights?
Defendant contends that the trial court failed to meet the standards required of states by the United States Supreme Court in Boykin v. Alabama (1969), 395 U.S. 238 ( 89 S Ct 1709, 23 L Ed 2d 274) by failure to advise defendant of his right to confront his accusers, his right to call witnesses in his defense, and his privilege to choose to testify in his own behalf or to remain silent.
Boykin holds at 395 U.S. 243 ( 89 S Ct 1712, 23 L Ed 2d 279, 280):
"Several Federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First, is the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment and applicable to the States by reason of the Fourteenth. Malloy v. Hogan (1964), 378 U.S. 1 ( 84 S Ct 1489, 12 L Ed 2d 653). Second, is the right to trial by jury. Duncan v. Louisiana (1968), 391 U.S. 145 ( 88 S Ct 1444, 20 L Ed 2d 491). Third, is the right to confront one's accusers. Pointer v. Texas (1965), 380 U.S. 400 ( 85 S Ct 1065, 13 L Ed 2d 923). We cannot presume a waiver of these three important Federal rights from a silent record."
In People v. Jaworski (1970), 25 Mich. App. 540 ( leave to appeal granted on October 15, 1970, 384 Mich. 766) this Court held that where the record was not silent there need be no specific waiver of the three mentioned rights. The test was whether the defendant did voluntarily and understandingly enter his guilty plea. The majority in Jaworski held that the defendant need not waive each of the rights mentioned in Boykin in order to enter a voluntary and understanding plea.
The following cases follow Jaworski: People v. Sepulvado (1970), 27 Mich. App. 66; People v. Martin (1970), 29 Mich. App. 295; People v. Brewer (1971), 31 Mich. App. 177. The case of Brewer holds (at 178):
"There is no requirement compelling the trial judge to inform defendant that he is waiving certain constitutional rights. People v. Jaworski (1970), 25 Mich. App. 540. Basically, the only requirement prescribed by statute (MCLA § 768.35 [Stat Ann 1954 Rev § 28.1058]), court rule (GCR 1963, 785.3), and by long-established case authority ( Kercheval v. United States, 274 U.S. 220 [ 47 S Ct 582, 71 L Ed 1009]; Chambers v. Florida, 309 U.S. 227 [ 60 S Ct 472, 84 L Ed 716]) is that the guilty plea be voluntarily and intelligently made by the defendant. Boykin v. Alabama (1969), 395 U.S. 238 ( 89 S Ct 1709, 23 L Ed 2d 274)."
II
Do allegations of promises of leniency require reversal?
Defendant contends that a letter written by an attorney who did not represent the defendant in any of the proceedings is a sufficient showing to require a hearing to determine whether promises of leniency were made. The letter states that defendant was offered immunity at the preliminary examination by the judge and the prosecutor in exchange for his testimony. After testifying, the offer was withdrawn. No affidavits are attached. No identification of the judge or prosecutor is made. It is not even clear what case the letter refers to.
This allegation must first be made in the trial court. It will not be heard in this Court for the first time. People v. Horvath (1970), 25 Mich. App. 649; People v. Minson (1970), 24 Mich. App. 692, 701; People v. Dorner (1970), 24 Mich. App. 306; People v. Barron (1970), 27 Mich. App. 379.
Affirmed, but without prejudice to defendant to file a delayed motion in the trial court for a new trial based on the claim set forth in issue II herein.
All concurred.