Opinion
Docket No. 2,757.
Decided February 1, 1968. Leave to appeal granted by Supreme Court February 9, 1968.
Appeal from Jackson; Dalton (John C.), J. Submitted Division 2 May 4, 1967, at Lansing. (Docket No. 2,757.) Decided February 1, 1968. Leave to appeal granted by Supreme Court February 9, 1968.
John Robert Taylor was convicted of breaking and entering with intent to commit a larceny. Defendant appeals. Reversed and remanded.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Bruce A. Barton, Prosecuting Attorney, and Vincent F. Stapley, Assistant Prosecuting Attorney, for the people.
L. Russell Heuman, for defendant on appeal.
On April 17, 1965, defendant was arrested without a warrant and was held by the police without a charge being placed against him; he was questioned at intervals until April 19, 1965, when he was charged with breaking and entering of a business establishment with intent to commit a larceny therein and arraigned the same day before a magistrate on such charge. He waived preliminary examination and was bound over to circuit court. On arraignment there April 20, 1965, he stood mute and a plea of not guilty was entered. On April 23, 1965, this plea was withdrawn and a guilty plea was accepted. On May 14, 1965, he was sentenced to prison for a minimum of 29 months and a maximum of 10 years. On January 11, 1966, acting in propria persona, defendant filed a petition to withdraw plea of guilty, set aside conviction and grant a new trial. That same day counsel was appointed for defendant, and this was the first time he had legal representation, although he waived appointment of counsel at arraignment in circuit court. Defendant's petition was denied May 24, 1966, and he appeals.
CL 1948, § 750.110, as amended by PA 1964, No 133 (Stat Ann 1965 Cum Supp § 28.305).
Although defendant raises and argues several issues on appeal, some of which raise questions as to the voluntariness of the plea, we believe one issue is dispositive thereof, and it questions the compliance in the trial court with the requirements of GCR 1963, 785.3(2). At no time did the trial judge advise defendant what punishment might follow his conviction by plea of guilty. Our recent decision in People v. Charles A. White (1967), 8 Mich. App. 220, holds that such advice bears no relation to the phrase "consequence of his plea," but such advice is involved in the determination required by 785.3(2), supra, that the plea was "freely, understandingly and voluntarily made, without undue influence, compulsion, or duress, and without promise of leniency." The record before us does not satisfactorily disclose that defendant's plea was so made, and we hold that it was an abuse of discretion to deny his petition to withdraw plea, set aside conviction and for a new trial.
"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."
Although we have statutory standards for accepting pleas of guilty, (CL 1948, § 768.35 [Stat Ann 1954 Rev § 28.1058]), and have had such standards since 1875, and although we have had more specific standards by rule since 1947, (Court Rule No 35A [1945]), and although much has been written by the Supreme Court and this Court with respect to what a trial court must do to satisfy these standards in accepting pleas of guilty, we have found no case which fully interprets all of such standards. In view of the many appeals reaching this Court because of alleged noncompliance by the trial courts with these requirements, we believe a specification by this Court of what it considers minimal compliance therewith and a suggested procedure for attaining such compliance will be a service to the trial bench and the bar.
See PA 1875, No 99.
See 318 Mich xxxix.
Pardee v. Smith (1873), 27 Mich. 33; People v. Banning (1950), 329 Mich. 1; People v. Mahler (1950), 329 Mich. 155; People v. Losinger (1951), 331 Mich. 490; In re Joslin (1952), 334 Mich. 627; People v. Coates (1953), 337 Mich. 56; People v. Hollingsworth (1953), 338 Mich. 161; People v. Case (1954), 340 Mich. 526; Attorney General v. Recorder's Court Judge (1954), 341 Mich. 461; People v. Henderson (1955), 343 Mich. 465; People v. Crane (1949), 323 Mich. 646; People v. Bumpus (1959), 355 Mich. 374; People v. Barrows (1959), 358 Mich. 267; People v. Whitsitt (1960), 359 Mich. 656; In re Valle (1961), 364 Mich. 471; People v. Whitsitt (1962), 366 Mich. 609; People v. Barmore (1962), 368 Mich. 26; In re Palmer (1963), 371 Mich. 656; People v. Davis (1964), 372 Mich. 402; People v. Zaleski (1965), 375 Mich. 71; People v. Morris (1966), 378 Mich. 515; People v. Parshay (1967), 379 Mich. 7; People v. Reed (1965), 1 Mich. App. 60; People v. Wurtz (1965), 1 Mich. App. 190; People v. Kearns (1965), 2 Mich. App. 60; People v. Johnson (1966), 2 Mich. App. 182; People v. Atkins (1966), 2 Mich. App. 199; People v. Curtis Lee Williams (1966), 2 Mich. App. 232; People v. Daniels (1966), 2 Mich. App. 395; People v. Leach (1966), 2 Mich. App. 713; People v. Wilkins (1966), 3 Mich. App. 56; People v. Walls (1966), 3 Mich. App. 279; People v. Hoerle (1966), 3 Mich. App. 693; People v. Shaffer (1966), 4 Mich. App. 192; People v. Steele (1966), 4 Mich. App. 352; People v. Winegar (1966), 4 Mich. App. 547; People v. Cairns (1966), 4 Mich. App. 633; People v. Fleming (1966), 4 Mich. App. 644; People v. Smith (1966), 5 Mich. App. 139; People v. Hilko (1966), 5 Mich. App. 166; People v. Hobdy (1966), 5 Mich. App. 275; People v. Catterson (1967), 5 Mich. App. 488; People v. Goldfarb (1967), 6 Mich. App. 7; People v. McKinley (1966), 5 Mich. App. 230; People v. Dye (1967), 6 Mich. App. 217; People v. Wiggins (1967) 6 Mich. App. 340; People v. Wolschon (1966), 2 Mich. App. 186; People v. Hoy (1966), 3 Mich. App. 666; People v. Shillings (1967), 6 Mich. App. 420.
It must be emphasized that before a plea of guilty can be accepted in any case where a defendant is charged with a felony, the defendant must be advised of his right to counsel, afforded an opportunity to request one, and must be provided with a lawyer, if he is indigent and desires to have counsel. While it is true that a defendant can knowingly and intelligently waive counsel and plead without counsel, unless the record is absolutely clear that the defendant waives counsel, it is incumbent upon the trial court to adjourn the matter and not accept a plea of guilty until counsel has had an opportunity to consult with his client.
Henceforth in all cases pending trial at the time of the handing down of this opinion, the following are minimum requirements for accepting a plea of guilty in felony cases whether or not defendant has counsel:
First, a verbatim record of the entire proceedings shall be made.
Second, the court must inform the defendant of the nature of the accusation. In doing so the court should avoid police jargon or catch titles and inform the defendant of the nature of the accusation in terms that a layman should comprehend under the circumstances. Additionally, the court shall determine whether the information has been read to the defendant and read or cause the same to be read to him unless he expressly waives the reading thereof.
Third, the court must advise the defendant of the consequence of a plea of guilty. This means the court must inform him that he waives the right to trial by jury or the judge without jury and all the incidents thereof.
Fourth, the court shall inquire as to whether the defendant has made any confession to the police prior to the time of his plea of guilty and ascertain if the confession is a reason for making the plea. If it appears that the confession is a basis for the plea, before accepting the plea the court shall advise the defendant that he is entitled to a Walker type evidentiary hearing to ascertain if the confession was freely, voluntarily and constitutionally made. In applicable cases this hearing shall be had unless expressly waived.
People v. Walker (On Rehearing, 1965), 374 Mich. 331.
Fifth, the court must ascertain before accepting the plea that the plea has been freely, understandingly and voluntarily made, without any undue influence, compulsion, duress or promise of leniency. This means that the court must determine whether or not any promises of any kind have been made by anyone as to the court's disposition of the case, and if such were made, refuse the plea. It must advise the defendant that no promises can be made as to the disposition. Further, the court must satisfy itself on the record that the defendant understands that he has no obligation to plead guilty and that he subjects himself to anything up to the maximum punishment by doing so. The court must advise defendant of the maximum sentence that can be imposed and the minimum sentence if there is a mandatory minimum. The court shall ascertain if the defendant is on probation or parole, and inform him of the possible consequence of probation or parole violation.
If at this point the court is satisfied that the defendant thoroughly understands the consequence of his plea, that he made the plea freely, understandingly and voluntarily and without any promise of leniency, or any undue influence, compulsion or duress, the court shall determine from a narration by the defendant or an interrogation of him that the defendant actually committed the crime to which he has pleaded guilty. In other words, the defendant should be asked to state on the record what he did and the court must satisfy itself from the defendant's narrative or responses that the defendant actually is guilty of all the elements of the crime with which he is charged. Then and only then can the court accept the plea of guilty.
The following is a suggested form of interrogation. It is emphasized that the narration is not mandatory but is merely a guide to the trial bench.
If the defendant is not represented by counsel the court must advise the defendant before he is required to plead that he is entitled to a trial by jury and that he is entitled to counsel. The court must advise the defendant that if he is financially unable to provide counsel that the court will provide counsel if he requests. If the defendant waives his right to trial by jury and states he does not want counsel, the court must make a clear determination that the defendant voluntarily and understandingly waives his right to counsel and trial by jury. At the time of the plea, whether counsel is present or not, the following is a suggested form:
1. Do you understand that you would have the right to have your attorney with you throughout the trial, and if you could not afford an attorney, the county will provide you with one at public expense?
2. Do you understand you have a right to trial by jury or by the court without a jury of this case, and at that trial you would be presumed innocent, until proved guilty beyond a reasonable doubt?
3. What is your name and age? How far did you go in school?
4. You are charged with (here state offense). Has the information been read to you? Do you wish to have it read or do you waive the reading thereof? How do you plead to this offense?
5. Do you understand you are pleading guilty to a felony, the maximum penalty for which is X years in the State prison? (If there is a mandatory minimum, inform defendant of that as well.)
6. Do you understand that no one can make any promises for me as to how I will dispose of this case; that is, no one can promise I will be easy on you or put you on probation?
7. Has anyone promised you I would be easy on you?
8. Have any promises or threats been made to induce you to plead guilty?
9. Do you realize that as of now I do not know how I will dispose of this case, and that I will not know until I have a full and complete presentence report?
10. Do you understand that at that trial the people would have to produce all the witnesses against you in open court, and you would have the right through your attorney to cross-examine all of them?
11. Do you understand you would not have to take the witness stand in your own defense unless you desired to do so, and if you did not take the witness stand, the prosecutor could not comment on your failure to do so?
12. Do you want a jury trial or trial by the court without jury in this matter?
13. Have you made any confessions or admissions to the police involving this matter?
14. If so, do they have anything to do with your present plea of guilty? If for any reason you feel that the confessions or admissions you made were not freely and voluntarily made, you are entitled to have an evidentiary hearing prior to trial to have the court determine if the confessions or admissions were freely and voluntarily made. Do you wish the court to conduct such a hearing? (Get a response from the defendant on the record.)
15. Are you on probation or parole?
16. If so, do you realize that in pleading guilty you are admitting violation of probation or parole, and you may be punished for that?
17. Reviewing all the things I have told you, do you still desire to plead guilty?
18. When did you decide to plead guilty?
19. Why did you decide to plead guilty?
20. Did you discuss pleading guilty with anyone? With whom? What was the discussion? (Have defendant, or his attorney, and the prosecuting attorney state on the record their discussion with each other concerning a reduction of charge where a reduced charge is involved.)
21. Tell me in your own language what you did in this case.
It is obvious that the form and manner of the examination of the defendant by the trial judge rests in the sound discretion of the trial judge, providing the court fully complies with the mandate of this opinion, the mandate of GCR 1963, 785.3, and the statute governing the taking of pleas of guilty, CL 1948, § 768.35. It is emphasized that the requirements set forth in this opinion are prospective only, in the acceptance of future pleas, and they will be applied to pleas taken subsequent to February 1, 1968.
For the reasons given, this case is reversed and remanded to the trial court for proceedings in conformity with this opinion.
LESINSKI, C.J., and QUINN, J., concurred.