Opinion
Docket No. 3,592.
Decided May 27, 1968.
Appeal from Recorder's Court of Detroit, Schemanske (Frank G.), J. Submitted Division 1 February 8, 1968, at Detroit. (Docket No. 3,592.) Decided May 27, 1968.
Eugene Harris was convicted of larceny from the person on plea of guilty. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Samuel J. Torina, Chief Appellate Lawyer, and Thomas P. Smith, Assistant Prosecuting Attorney, for the people.
Paul R. Jackman, for defendant on appeal.
Appellant, charged with armed robbery, stood mute and was released on bond. On the date set for trial, he appeared with counsel who advised the Court that his client wished to enter a plea of guilty to the lesser included offense of larceny from the person. Counsel told the Court that he had consulted with his client and that he had advised his client of his right to trial by jury or trial by the Court, and of the possible consequences of a plea of guilty.
CLS 1961, § 750.529 (Stat Ann 1968 Cum Supp § 28.797).
CL 1948, § 750.357 (Stat Ann 1954 Rev § 28.589).
The prosecuting attorney consented to the plea to the included offense, and the trial judge then interrogated one of the investigating officers in defendant's presence. The officer related the essential facts of the complaint, the report of a robbery at knife-point and complainant's description of the offenders, the complainant's identification of defendant on the street and again in a show-up at the police station, the arrest of defendant and the confiscation of a knife dropped by the defendant.
The trial judge then addressed defendant as follows:
"Q. Your name is Eugene Harris?
"A. (Nods head affirmatively.)
"Q. You heard your attorney state that you wish to withdraw your plea of not guilty and plead guilty to the included offense of larceny from the person, is that correct?
"A. Yes, sir.
"Q. Has anyone threatened you or promised you anything to plead guilty?
"A. No, sir.
"Q. Are you pleading guilty of your own free will?
"A. I am pleading guilty because I am guilty of larceny from a person.
"Q. You understand once you plead guilty you cannot withdraw the plea of guilty, do you understand that?
"A. Yes, sir.
"The Court: All right, the court will accept the plea of guilty of larceny from the person.
"Mr. Bell (counsel): Thank you very much, your Honor."
Appellate contends that the arraignment failed to meet the requirements of GCR 1963, 785.3(2), in that he was not informed of "the nature of the accusation."
GCR 1963, 785.3(2): "Imposing sentence. If the accused pleads guilty, after such plea and before sentence the court shall inform the accused of the nature of the accusation and the consequence of his plea; and regardless of whether he is represented by counsel, the court shall examine the accused, not necessarily under oath, and as a condition of accepting the plea of guilty and imposing sentence shall ascertain that the plea was freely, understandingly, and voluntarily made, without undue influence, compulsion, or duress, and without promise of leniency. Unless the court determines that the plea of guilty was so made, it shall not be accepted."
While the arraignment occurred in 1964, counsel for appellant argues that the provisions of a later amendment to the rule should be applied to test the adequacy of the arraignment procedure. He specifically refers to subsections (1)(e) and (1)(f) (added in 1966 and since withdrawn [see 378 Mich xxxix, xliii]), requiring the court to interrogate the accused as to the facts of the alleged offense. This, however, is not the same as the requirement that the court "shall inform the accused of the nature of the accusation." Neither does it appear essential as a matter of due process.
In People v. Goldfarb, 6 Mich. App. 7, this requirement was considered (p 15):
"Under the court rule and the cases herein cited, it is mandatory on arraigment on the information that the court inform the accused of the nature of the accusation and investigate by direct questioning the accuracy of the charge for the purpose of establishing the crime and the defendant's participation therein. In referring to the offense to which the defendant offered a plea of guilty, the court in questioning the defendant on arraignment only used the words `possession of burglary tools.' This alone was not sufficient to establish the crime and the defendant's participation therein.
"The fact that defendant was not a stranger to the criminal courts of our State or that he was represented by competent counsel does not relieve the trial court of fulfilling the mandatory requirements of the court rule." People v. Barrows (1959), 358 Mich. 267; People v. Winegar (1966), 4 Mich. App. 547.
In Goldfarb, the court used the general term "possession of burglary tools" in asking the defendant about his plea, and no other reference was made to the charge or his participation. As noted at pages 15, 16:
"Common sense compels recognition of the fact that certain offenses involve more elements and are of greater complexity than others. The instant case is an example of the former, and People v. Steele (1966), 4 Mich. App. 352, of the latter. The language of the court rule dealing with acceptance of pleas implicitly recognizes this fact, and we have recognized this self-evident principle in applying the rule to the offenses charged and the fact situations presented by the cases cited above. Although the requirement does not change, the extent of explanation it demands of the trial court prior to acceptance of a plea cannot be set by predetermined, mechanical rules and must necessarily vary to cover the offense charged and the facts of each case."
In the instant case no such complex crime is involved, but only the relatively simple concept of larceny from the person. In People v. Kearns, 2 Mich. App. 60, the defendant, as here, was charged with armed robbery, arraigned, and entered a plea of not guilty. As in the instant case he subsequently appeared and entered a plea of guilty to a lesser included offense. At page 63 the following appears:
"The first question raised by the appellant inquires into the necessity of amending the information when the judge takes a plea to a lesser included offense. The basic reason for an information is to apprise the defendant of the charges against him. If the information fulfills this requirement, then it is a good and proper information. As early as People v. Calvin (1886), 60 Mich. 113, the Michigan Supreme Court laid down the guidelines as to what is necessary to inform the defendant. In the Calvin Case our Supreme Court said at page 122:
"`If the information or indictment, although defective in its averments as to a higher crime, contains a full description of a lesser offense of the same nature, the respondent cannot complain that he has not had full and sufficient notice of the crime for which he is tried and convicted.'" (Emphasis supplied.)
See, also, In re Kovacivich (1948), 323 Mich. 310, 314, 315.
In the case at bar, the defendant was fully informed by the information of the included offense of assault with intent to rob being armed. CL 1948, § 750.89 (Stat Ann 1962 Rev § 28.284). We therefore find no merit to the contention that the trial court was required to amend the information, as it initially informed the defendant of the charge against him.
As in Kearns, the accused here heard the information and entered his plea thereto. In the conversation with the court noted above, he used the language of the statute, but the words have relatively commonplace and unsophisticated meanings and indicate his knowledge of the accusation. His plea and his statement following the officer's narrative leave no doubt as to the "accuracy of the charge for the purpose of establishing the crime and the defendant's participation therein."
CL 1948, § 750.357 (Stat Ann 1954 Rev § 28.589).
In People v. Gill, 8 Mich. App. 89, 93, 94, the court says:
"It is settled law that before a judge accepts a plea of guilty, he must satisfy himself that the plea was made freely and understandingly with knowledge of its consequences and without undue influence or promise of leniency. The form and manner of the examination is left to the discretion of the judge to be exercised in the manner best suited to the parties and the offense. CL 1948, § 768.35 (Stat Ann 1954 Rev § 28.1058). See, also, People v. Bumpus (1959), 355 Mich. 374; People v. Coates (1953) 337 Mich. 56; People v. Wurtz (1965), 1 Mich. App. 190; People v. Reed (1965), 1 Mich. App. 60; People v. Steele (1966), 4 Mich. App. 352. * * *
"Where a defendant, with the benefit of competent counsel, has chosen to waive his constitutional right to trial on the merits by freely, voluntarily, and understandingly pleading guilty, after having been fully informed of the nature of the accusation and the consequence thereof, he is conclusively bound by such waiver."
The trial judge determined in the instant case that the plea tendered was voluntarily and understandingly made. That determination is supported by the record and will not be disturbed. The acceptance of the plea and sentence are affirmed.
BURNS, P.J., and HOLBROOK, J., concurred.