PEOPLE
v.
CARLISLE
Docket No. 5,931.
Michigan Court of Appeals.
Decided October 29, 1969. Rehearing denied December 12, 1969. Application for leave to appeal filed January 2, 1970.*683 Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Samuel J. Torina, Chief Appellate Lawyer, and Luvenia D. Dockett, Assistant Prosecuting Attorney, for the people.
Charles Burke, for defendant.
Before: LESINSKI, C.J., and FITZGERALD and V.J. BRENNAN, JJ.
FITZGERALD, J.
In 1965, when defendant-appellant was 22 years of age, she pled guilty to the offense of assault with intent to rob, being armed.[1] She was placed on probation, but she allegedly violated its terms and was sentenced to serve 2 to 20 years in prison. In 1968, she filed a motion to withdraw her plea of guilty alleging failure of the trial court to inquire into the underlying facts and circumstances of the charge before accepting her plea which was heard by the successor to the trial judge. The motion was denied on the grounds that GCR 1963, 785.3, was substantially complied with in that statements made by her to the investigating detective showed that she was informed of a plan to commit a robbery; that she was a "lookout"; that she drove off with the money; and that she drove her accomplice, who was shot, to the hospital. In other words, the court considered this confession to provide a substantial basis for the acceptance of her plea.
The trial court exhaustively questioned the defendant as to her unequivocal desire to plead guilty. It did not pursue the apparent intention and willingness of the defendant to discuss the circumstances *684 behind her plea.[2] The court did comply minimally with GCR 1963, 785.3(2), as to the plea being freely made, but did not meet the additional requirement that a defendant be carefully examined as to the nature of the accusation which must contain the elements of the crime charged. It is desirable that a defendant not plead guilty to a crime which she well may not have committed despite her willingness to believe to the contrary. People v. Perine (1967), 7 Mich App 292; People v. Barrows (1959), 358 Mich 267.
The recent case of People v. Bartlett (1969), 17 Mich App 205, is support for this holding that a guilty plea is properly taken when the court carefully inquires into the facts. However, even where there are elements of the crime charged which are not apparent in those facts revealed by the defendant during this careful questioning, they may be properly provided by reference to the preliminary examination. So if the court, reviewing all available facts, is satisfied that if there were a trial, the defendant might well be convicted, then the acceptance of the plea was correct. Such a factual basis is essential.
At the preliminary examination here, a confession by the defendant was read into the record. The confession was given to a detective without counsel present after she had stated to the assistant prosecuting attorney, a few hours previously, that she did not wish to talk, and asked, "If I want a lawyer what do I do?"
She now says she did not question the confession at the taking of the plea because evidence of the prior statement to the assistant prosecuting attorney was not in the court file and she could not know that the confession would be used to provide a factual *685 basis for the unquestioned acceptance of her plea. The fact that the reviewing court which heard her motion to withdraw the plea apparently relied heavily on the confession in denying the motion prompts us to remand this case for a "Walker hearing" (People v. Walker [On Rehearing, 1965], 374 Mich 331) to determine the legality of the obtaining of the confession upon which the tender and acceptance of the plea was based. People v. Daniels (1966), 2 Mich App 395.
The only other evidence offered at the preliminary examination was provided by a patrolman who testified that, based on a description and address of a girl who drove the wounded man to the hospital, he went to defendant's house. She there stated that she did drive the man to the hospital after he came to her house and asked her to do so.
If the Walker hearing reveals that the confession was involuntary and thus improperly taken at the preliminary examination, the trial court should further inquire into the facts of the case before again accepting this plea as was done in Daniels, supra. If the confession was proper, taken together with the testimony of the patrolman, then a sufficient factual basis appears to exist, despite the absence of the desirable examination of the defendant.
Remanded for a hearing on the voluntariness of the confession based on People v. Walker, supra. If the confession is found to have been involuntarily made, then a new trial shall be had, otherwise the cause is affirmed.
LESINSKI, C.J., concurred.
V.J. BRENNAN, J. (dissenting).
The defendant contends that her plea of guilty is invalid because (1) the trial court failed to inquire into her conduct *686 before accepting her plea, as required by GCR 1963, 785.3, and (2) an allegedly invalid confession was used as an inducement to the plea. Neither of these claims, on the present record, supports a ruling that her plea is invalid.
As to the first claim, I cannot accept the majority's view that without some evidence on the record indicating the truth of the defendant's plea, the plea cannot stand. Although past decisions of both this Court and the Supreme Court adhere to this view,[*] the Supreme Court has recently held that noncompliance with the prophylactic standards of GCR 1963, 785.3, does not alone warrant the withdrawal of a plea. People v. Dunn (1968), 380 Mich 693; People v. Stearns (1968), 380 Mich 704; People v. Winegar (1968), 380 Mich 719. Before the withdrawal of a plea is justified, it must appear that the procedural fault affected the outcome:
"[A convicted defendant] has the burden of showing something more than technical noncompliance with a rule. Absent a showing of violation or denial of constitutional rights, he has the obligation of alleging in a motion to withdraw plea such facts as would, if true, substantiate a finding that there was noncompliance which resulted in a miscarriage of justice." People v. Winegar, supra, 733.
Without attempting to define the limits of this requirement, it seems that the reason accompanying a request to withdraw a plea must relate to the defendant's innocence in fact. See People v. Dunn, supra, 701. In this respect, the present defendant has failed to sustain her burden: the trial court asked her several times whether she was guilty of the crime charged, and she answered without hesitation *687 that she was; defendant was represented by counsel; and, most significantly, she does not assert that she is, in fact, innocent. I am unable to say that the trial court's failure to inquire into her conduct resulted in a "miscarriage of justice."
Defendant's second claim, that her plea is invalid because it was induced by an invalid confession, is founded on People v. Daniels (1966), 2 Mich App 395. Whatever the merit of that case, defendant has not shown that she is entitled to relief under it. Although she asserts in conclusory fashion that her plea was induced by an invalid confession, she does not state why the confession is invalid or how it was used to induce a plea of guilty. Failing to specify the facts underlying her claim, defendant has not established the need for an evidentiary hearing to determine its truth. People v. Scruggs (1968), 14 Mich App 47; People v. Dickerson (1969), 17 Mich App 201.
Neither People v. Daniels, supra, nor the majority of this panel has convinced me that a trial judge need go any further in accepting a plea than to be satisfied that it is tendered voluntarily and understandingly, that it was not induced by threats or promises, and that it reflects the defendant's guilt in fact. To require a trial judge to conduct an evidentiary hearing on the admissibility of a confession is to destroy the utility of the guilty plea. If that is to be the criterion, then it only follows that a hearing should be conducted on the admissibility of any evidence acquired before the plea. We might as well then forget pleas and have a full hearing on the merits.
We must accept the fact that guilty pleas and plea bargaining are an important part of criminal proceedings, and, because they are important, we should not restrict them unrealistically. We should not *688 allow review to replace the discretion of the trial judge, who has the ability to observe through confrontation whether a defendant is pleading voluntarily and knowingly. Nor should we minimize or forget the presence of his counsel, who has discussed the case with his client and has reviewed the entire file so as to advise him properly. Each case must be reviewed on its individual merits without requiring that a procedural checklist be carefully followed. To require a checklist is to open the door for procedural error while we should be more concerned, I think, with the spirit of the law than with the letter of the law.
The record in this case clearly indicates that defendant voluntarily tendered her plea, that she knew what she was doing, and that she was pleading guilty because she said she was guilty. I would affirm the denial of defendant's motion to withdraw her plea of guilty.
NOTES
[1] CL 1948, § 750.89 (Stat Ann 1962 Rev § 28.284).
[2] CL 1948, § 768.35 (Stat Ann 1954 Rev § 28.1058).
[*] People v. Barrows (1959), 358 Mich 267; People v. Stewart (1968), 10 Mich App 553; People v. Perine (1967), 7 Mich App 292; People v. Goldfarb (1967), 6 Mich App 7.