PEOPLE
v.
COATES
Docket No. 6160.
Michigan Court of Appeals.
Decided March 29, 1971.Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Thomas G. Plunkett, Prosecuting Attorney, Dennis Donohue, Chief Appellate Counsel, and Bruce T. Leitman, Assistant Prosecuting Attorney, for the people.
Milton R. Henry, for defendant on appeal.
Before: LEVIN, P.J., and T.M. BURNS and DANHOF, JJ.
DANHOF, J.
Defendant was charged with armed robbery, CLS 1961, § 750.529 (Stat Ann 1969 Cum Supp § 28.797). A plea of guilty to the charge was accepted by the trial court and defendant was sentenced to a term of 4 to 16 years in prison. Defendant *55 has appealed as of right praying for a new trial on two grounds:
(1) That the trial judge did not comply with the requirements of CL 1948, § 768.35 (Stat Ann 1954 Rev § 28.1058), and GCR 1963, 785.3 in that, before accepting the defendant's guilty plea and sentencing, he did not, by direct questioning of the defendant, ascertain the truth of the plea by establishing the crime and the defendant's participation in its commission as required by People v. Barrows (1959), 358 Mich 267, and People v. Perine (1967), 7 Mich App 292;
(2) That the defendant was denied his right to be represented by counsel at the time of his sentencing.
The record shows that an armed robbery occurred on October 16, 1967, for which defendant and a man named Greenblatt were subsequently arrested. On November 9, 1967, a preliminary examination was held at which the victim, night clerk in a motel, unequivocally identified the defendant as one of the two men who robbed him and as the one who shot him with a small gun that looked like a Beretta. The victim testified that the two robbers were in the office area two or three minutes and that he took a good look at both of them. On cross-examination by defendant's counsel, the victim testified that he also worked as a full-time animal keeper at the Detroit zoo, that guns were a hobby of his, and that he was quite positive that one of the weapons used was a Beretta.
On November 22, 1967, defendant was arraigned. The information was read to him. It stated in part:
"Marshall Coates late of the city of Ferndale in said county, heretofore to-wit, on or about the 17th day of October A.D. 1967 at the said city of Ferndale in said county, while armed with dangerous *56 weapons or articles used or fashioned in a manner to lead the person so assaulted to reasonably believe them to be dangerous weapons, to wit: a .32-caliber automatic and a .22-caliber revolver, did assault one Thomas J. Watson and did feloniously rob, steal and take from the person of Thomas J. Watson or in the presence of said Thomas J. Watson certain property which may be the subject of larceny, to-wit: United States currency in the amount of $60, contrary to Section 750.529, of the Compiled Laws of 1948 as amended: M.S.A. section 28.797 as amended. (Maximum penalty Life)"
The following colloquy then occurred:
"The Court: How do you plead?
"Mr. Coates: I stand mute.
"And I would like to ask for an adjournment because my lawyer is not here.
"The Court: Who is your lawyer?
"Mr. Coates: Arnold Fink.
"The Court: Is his appearance in the file?
"Mr. Pantel (Assistant Prosecuting Attorney): No.
"Your Honor, it is my understanding that he did represent the defendant at the examination level, but we do not have an appearance at the circuit court level.
"The Court: The court must direct the plea of not guilty, under the law, for you."
On January 16, 1968, defendant with his attorney present pleaded guilty to armed robbery. The transcript reads in part:
"Mr. Fink: Your Honor, at this time, we wish to change our plea the plea being standing mute, or not guilty at the arraignment on the information we wish to plead guilty as charged.
"The Court: Is Mr. Arnold Fink your lawyer?
"Mr. Coates: Yes, he is, your Honor.
*57 "The Court: And did you hear what he said, that you wished to plead guilty to this charge of robbery armed?
"Mr. Coates: Yes, I did.
"The Court: Has he explained to you that if I accept this plea, that it is possible that I could send you to state prison for any number of years up to life? Has he explained that to you?
"Mr. Coates: Yes, he has.
"The Court: Now, has anybody hurt you or harmed you in any way since you have been taken into custody and then released on bond, and been charged, to induce you to make this plea?
"Mr. Coates: No, they haven't.
"The Court: Did anybody tell you that if you plead guilty that you might get off easy in some way or get a reward?
"Mr. Coates: No, they haven't.
"The Court: Now, do you plead guilty, then, because you are guilty of the charge of armed robbery? Is that correct?
"Mr. Coates: Yes, I do, your Honor.
"The Court: Do you understand that you do not have to plead guilty, that you can have a trial by jury and that Mr. Arnold Fink stands ready to represent you? And if you do not wish a jury trial, you can be tried by the court alone? Do you understand that?
"Mr. Coates: Yes, I do.
"The Court: You understand that if I accept the plea of guilty, there will be no trial?
"Mr. Coates: Yes, I do.
"The Court: Have you fully advised him of all his constitutional rights, Mr. Fink?
"Mr. Fink: Yes, I have, your Honor.
"I would also like to state for the record, I have conferred with Mr. Coates last night, this morning, and this afternoon. I believe I have fully advised him of all his constitutional rights and may state emphatically that Mr. Coates is pleading guilty as *58 charged for the sole reason that he is in fact guilty, so being advised of all his constitutional rights.
"The Court: Well, of course, Mr. Coates, if a person is charged with crime and if the person knows in their mind and heart that they are guilty of that crime, the first step in the right direction then, after having conferred with your counsel, is to plead guilty. I emphasize that the first step in the right direction is to do what you are trying to do at this time.
"I am going to accept your plea of guilty.
"And I am going to refer your case to the presentence investigating department called the Probation Department, for sentence February 26, at 2 o'clock in the afternoon.
"Do you understand that?
"Mr. Coates: Yes, sir."
On February 26, 1968, the defendant failed to appear for sentencing and his bond was forfeited and a bench warrant issued. He was arrested on June 13, 1968, in Detroit, Michigan.
On July 3, 1968, defendant was sentenced. He was apparently in the process of changing lawyers and neither his trial counsel nor his appellate counsel was present.
Defendant admits in his brief to this Court that the trial judge "made every effort to establish the free and voluntary nature of appellant's plea below". Defendant does not even now claim that he was innocent of the charge to which he pleaded guilty. Nor is this a case of plea bargaining where defendant pleaded guilty to a lesser crime than that with which he was charged. Rather, defendant seeks a new trial based on omissions in the trial judge's questioning of him which defendant thinks the appellate courts of this state require. Specifically, defendant contends that the trial judge did not establish a factual basis in support of the truth *59 of the guilty plea by direct questioning of the defendant.
The major case relied on in support of the position that a trial judge must question the defendant regarding the acts constituting the crime before accepting the guilty plea is People v. Barrows, supra. However, it is doubtful that that is what the Barrows case actually held. In that case the defendant was young, only 19, it was his first experience with a criminal court, his guilty plea was entered by his attorney, and the defendant was not directly questioned with regard to it by the judge. Further, he protested his innocence at every point when given an opportunity to do so and also protested his innocence on appeal.
On the authority of the Barrows decision, more is required than that the defendant agree with his attorney that it is expedient to plead guilty. There must be a reasonable ascertainment of the truth of the guilty plea. This is accomplished by the direct questioning of the defendant by the trial judge. The purpose of this direct questioning is to establish the crime and the participation therein of the defendant as a precaution against involuntary or induced false pleas of guilty and against subsequent false claims of innocence.
However, it is arguable that a trial judge has met the requirement of the Barrows case concerning direct questioning of a defendant for the purpose of establishing his participation in the crime when the trial court asks the defendant if he is pleading guilty because he is in fact guilty of the crime with which he is charged and the defendant answers yes. A decision on the merit of that argument is not essential to the disposition of the appeal before us.
Certainly the recent trilogy of Michigan Supreme Court cases, People v. Dunn (1968), 380 Mich 693, *60 People v. Stearns (1968), 380 Mich 704, and People v. Winegar (1968), 380 Mich 719, make it clear that reviewing courts should be concerned with substance, not form, and the fundamental inquiry is whether there has been a miscarriage of justice. Specifically, we note that in the Stearns case use was made of the information which was read to defendant and the presentence investigation at which defendant cooperated to establish a factual basis in support of the truth of the guilty plea. Similarly, in the Winegar case, the Court held that there was no miscarriage of justice where the record showed that the court had conferred with the defendant in chambers and was convinced that he committed the crime, but there was no verbatim transcript of the colloquy between the court and the defendant regarding the circumstances of the crime.
The Perine case, supra, relied on by defendant was decided before the Dunn, Stearns, and Winegar cases. Additionally, it may be distinguishable factually since the opinion states that defendant's attorney waived a reading of the information.
Since Perine, this Court has held that the absence of a recital on the record of the events in the defendant's own words is not always fatal. People v. Seifert (1969), 17 Mich App 187. It has also held that we may properly look at the preliminary examination testimony in considering a claim that there was not a factual basis justifying acceptance of a plea of guilty. People v. Bartlett (1969), 17 Mich App 205.
In the case before us, after considering the eyewitness testimony at the preliminary examination, the specific wording of the information which was read to defendant at his arraignment, the essentially uncomplicated elements of the crime of armed robbery, and the direct questioning of the defendant by *61 the court at the time defendant entered his plea of guilty, it is our opinion that the trial court had a substantial factual basis for accepting the proffered plea of guilty, and that defendant might well have been convicted upon a trial. Therefore, defendant is not entitled to a new trial.
Regarding defendant's second issue, the right to counsel at the time of sentencing, this is grounds only for remanding for resentencing with counsel present, People v. Dye (1967), 6 Mich App 217, People v. Jones (1967), 6 Mich App 221. Therefore, we remand this case for resentencing with counsel for defendant present.
T.M. BURNS, J., concurred.
LEVIN, P.J. (dissenting).
I dissent because the trial judge made no effort whatsoever to comply with the Barrows rule requiring a judge, before accepting a plea of guilty, to establish by "direct questioning" of the defendant "the crime and the participation therein of the person pleading guilty."[1]
Our Court has repeatedly and consistently recognized that the Barrows rule is still viable.[2] In many cases decided after Dunn, Stearns, and Winegar,[3] we have reversed convictions because a plea of guilty was accepted without complying with the Barrows rule.[4]
*62 Moreover, the trial judge in the present case could not have relied on Dunn, Stearns, and Winegar, because those cases were decided after he accepted Coates' plea of guilty.
Stearns and Winegar were convicted and sentenced in 1961, Dunn in 1962 six and seven years before their cases were decided by the Michigan Supreme Court. In the present case, Coates was convicted in 1968. There is a natural reluctance which I share to set aside old guilty pleas. Belated reversal imposes considerable burdens on the prosecution, without any necessary current benefit in raising standards in the administration of justice.[5]
Stearns, Winegar, and Dunn were delayed appeals. This case comes to us on direct appeal.
I.
It will be an unusual prosecution that does not have some tenable factual basis, and a rare case where an accused person is willing to plead guilty to an offense he did not commit, unless, of course, he is guilty of a more serious offense. The majority and I are, I think, nevertheless, in agreement that even though an accused person is willing to plead guilty, neither the fact of prosecution nor his willingness to plead guilty will support a conviction unless a factual basis is independently established.
My colleagues are willing, in those cases where there is a preliminary examination, that the factual basis be established by the testimony of those of *63 the people's witnesses who testify at the preliminary examination. In such a case they would not require that the judge examine the defendant concerning the facts even though there is no showing that the judge himself read the preliminary examination transcript.
In my opinion, the Barrows requirement that the judge directly question the defendant concerning the facts and ascertain the truth of the plea should be enforced. It should not be enough that there was a preliminary examination and, if the defendant appeals, a transcript of that examination can be produced for the edification of the appellate courts; that is not an adequate substitute for the trial judge informing himself of the facts by directly questioning the defendant.
II.
In cases of long-delayed appeal or where the judge makes a conscientious effort to comply with the Barrows requirement and overlooks establishing an element of the crime before accepting the guilty plea, we have countenanced the resort to other information, not a part of the plea-taking proceeding, to establish the necessary factual basis for the plea.
In People v. Seifert (1969), 17 Mich App 187, a pre-Barrows case, the facts of the defendant's commission of the offense were fully set forth on the record at the time of sentencing.[6]
In People v. Bartlett (1969), 17 Mich App 205, 214, 215, the judge accepted a plea of guilty to the offense of unarmed robbery. He questioned the defendant thoroughly and it was established that the defendant had committed a larceny. The judge omitted to establish through the testimony of the *64 defendant that the larceny had been accomplished by an assault upon the victim, constituting the offense of robbery. We relied on the preliminary examination to supply this ingredient. There was a reason for Bartlett to hold back in his responses. He had bargained for a reduction of a charge of armed robbery to unarmed robbery. If he had responded to the judge's questions with a statement of the facts related by the witnesses at the preliminary examination he would have established that he was guilty of the more aggravated offense. Recognizing the reluctance of guilty-pleading defendants to state all the facts in those circumstances, we concluded that we could properly rely on the preliminary examination record in affirming Bartlett's conviction of unarmed robbery.[7] We said, pp 214, 215:
"To reverse automatically for any and every failure to comply with such court rule imposed requirements might well in the long run prove self-defeating. If reversal were automatic, then in order to protect convictions based upon guilty pleas, trial judge examination of guilty pleaders would tend to become stereotyped, and technical compliance would appear to some to be more important than the substance of the matter. A trial judge can justifiably be expected to comply with the court rules but if he makes a good-faith effort to do so and the purpose sought to be attained by the examination of the accused has been achieved as is clearly true in this case it would be more destructive than preservative of the judicial process to reverse as a matter of course for noncompliance with the court rule."
Subsequently, in People v. Williams (1970), 23 Mich App 459, we pointed out that Barrows was *65 the first modern case[8] clearly reiterating and reaffirming the requirement that the judge directly question a guilty-pleading defendant for the purpose of establishing that a crime had been committed and that he participated in its commission. We declared, relying on Seifert and People v. Combs (1968), 15 Mich App 450, that in a case where a plea of guilty was accepted before November 25, 1959, the date on which Barrows was decided, we may properly rely on preliminary examination testimony to show the necessary factual basis and that a failure in such a case of the trial judge to have questioned the defendant regarding his participation in the commission of the crime does not require that his plea of guilty be set aside.
I recognize that there is apparent inconsistency in requiring direct questioning by the judge and yet allowing resort to a preliminary examination transcript to establish a factual basis in pre-Barrows cases and in cases where there has been an effort by the judge to learn the facts by questioning the defendant but the factual basis established upon such questioning is incomplete and does not make out all the elements of the crime.
Efforts to improve the quality and raise standards in the administration of justice are, however, sometimes impeded by an insistence on applying a newly-established or newly-enforced standard in cases where the judgments of conviction have long ago become final.[9] Those efforts are also sometimes *66 impeded by a rigid and inflexible application of the improved standard in current cases. Unless the Barrows direct-questioning requirement is enforced with sufficient flexibility to make allowances for inadvertent oversight by a conscientious judge and for those cases where guilty pleas were taken before Barrows was decided, the likelihood is that pressure from the trial bench and the reality of the number of convictions that would be reversed and cases retried, adding to the backlog of our overburdened trial courts, would erode the direct questioning requirement altogether. A pragmatic philosopher cautioned us that "the best is the enemy of the good."[10]
The exigencies which justify our resort to a preliminary examination transcript and other information in a case of delayed appeal or in a case where the judge has made a conscientious effort to question the accused person and the recital is incomplete do not obtain in the present case. Here there was no direct questioning whatsoever of the accused as to his participation in the crime; here the appeal is direct, not delayed and on leave granted. If we do not remand this case because of the judge's failure to comply with the Barrows rule, then we might as well announce that the Barrows rule will not be enforced compliance by the trial judge is optional in cases where the defendant is bound over after a preliminary examination.[11]
*67 III.
A preliminary examination transcript is not an adequate substitute for direct questioning. In many cases it will not be typed before the plea is taken and, even if it is typed, it is most unlikely that the judge will read it. A judge who is not willing to devote a few minutes (usually less than three minutes will suffice) to direct questioning of an accused person concerning the facts is not likely to find time to read a transcript which, however short, will usually take at least ten minutes and sometimes an hour or more to read.
The purpose of direct questioning by the judge was cogently expressed in Barrows (p 272):
"This is a precaution against involuntary or induced false pleas of guilty, and against subsequent false claims of innocence."
Similar considerations were recently expressed by the United States Supreme Court in McCarthy v. United States (1969), 394 US 459, fn 4, 462, 463, 467, 468, 472 (89 S Ct 1166, 1169, 1171, 1174, 22 L Ed 2d 418, 423, 426, 428). There the Court considered F R Crim P, 11, which requires that before accepting a guilty plea the court address "the defendant personally and determin[e] that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea" and that, "The court shall not enter a judgment upon a plea of guilty unless it is satisfied that there is a factual basis for the plea." The Court observed:
"Requiring this examination of the relation between the law and the acts the defendant admits having committed is designed to `protect a defendant who is in the position of pleading voluntarily with an understanding of the nature of the charge *68 but without realizing that his conduct does not actually fall within the charge.'
"To the extent that the district judge thus exposes the defendant's state of mind on the record through personal interrogation, he not only facilitates his own determination of a guilty plea's voluntariness, but he also facilitates that determination in any subsequent post-conviction proceeding based upon a claim that the plea was involuntary. Both of these goals are undermined in proportion to the degree the district judge resorts to `assumptions' not based upon recorded responses to his inquiries."
The Court concluded that noncompliance was reversible error entitling the defendant to plead anew, saying that this would not only "insure that every accused is afforded those procedural safeguards, but also will help reduce the great waste of judicial resources required to process the frivolous attacks on guilty plea convictions that are encouraged, and are more difficult to dispose of, when the original record is inadequate."
Although McCarthy is based on a construction of a Federal rule and the United States Supreme Court expressly said that it did not reach any of the constitutional arguments advanced in that case, Barrows, which anticipated the McCarthy reasoning, is binding on us.
In People v. Gerald Jackson (1971), 30 Mich App 173, the interrogation was conducted by the defendant's attorneys in the presence of the judge. In reversing the guilty-plea-based convictions, we declared:
"This court rule states that `the court shall examine the accused' in regard to the matter set out above. The written form[12] and the interrogation by *69 the attorney cannot be substituted for the examination by the judge himself because such a practice leaves itself too easily open to perpetuation of the evil which GCR 785.3 was designed to prevent that is, contrived, rehearsed and, hence, involuntary or false pleas, in that a defendant may agree to go along with his attorney on matters which he might hesitate to affirm if answering to a judge.
"This examination should and must be conducted by the judge. People v. Barrows (1959), 358 Mich 267." (Emphasis by the Court.)[13]
IV.
The law of Michigan requires, before a judgment of conviction based on a plea of guilty may be entered, that the judge must determine whether he has "reason to doubt the truth of such a plea of guilty."[14] If he does, it then becomes his "duty" to set aside the plea.
"Michigan's rule on acceptance of pleas requires that the court ascertain more about the plea than that the defendant agrees that it is expedient to so plead. The rule is designed to require reasonable ascertainment of the truth of the plea." People v. Barrows (1959), 358 Mich 267, 272.
We look for a factual basis for the plea in the plea-taking record in part to satisfy ourselves that, before causing judgment to be entered on a defendant's plea of guilty, the judge did in fact ascertain its truth as the law requires. It is illusory to rely on a transcript of a preliminary examination as *70 evidence that the judge did in fact ascertain the truth of the plea when it is apparent that he never looked at the transcript.[15]
V.
Direct questioning enables the judge to determine how the defendant views the facts. By the defendant's answers to the judge's questions, the judge, a trained observer, can himself appraise whether the plea is, indeed, a truthful plea. It permits the judge, who will be sentencing the defendant, to get the feel of the situation.
Direct questioning of the defendant is informative; it permits the judge to satisfy himself as to the substantiality and justification for the prosecution and that it is consistent with the sound administration of justice to permit the defendant to plead guilty. This does not mean that the judge must decide that the defendant is guilty before he agrees to accept the plea. Indeed, a plea of guilty may be accepted even though the defendant is unsure of his guilt and even where he denies his guilt if after careful inquiry the judge satisfies himself that there is a substantial factual basis for the plea and that the plea represents a well-considered and well-advised choice by the defendant.[16]
*71 To whittle away at the Barrows rule is unwise. It tends to reduce standards in Michigan at a time when an effort is being made nationally to raise standards in the taking of guilty pleas in recognition of the importance of the guilty plea as the means by which most criminal cases are disposed of and most convictions are obtained.[17]
*72 We should set aside this guilty plea and thereby demonstrate that there is a proper minimum standard which the appellate courts of this state will insist upon both for the protection of accused persons and also in the hope that we may thereby reduce the large number of appeals from guilty pleas, many of which could be avoided or more easily disposed of if all trial judges would comply with the simple requirements which have long been established in this state and which most trial judges, to their credit, routinely observe.
I recognize that we can, as was carefully done by my colleagues in this case, examine the entire record in every defective plea case and by inference and extrapolation make an ad hoc, ad hominem determination whether a particular defective guilty plea should stand.[18] The preliminary examination testimony, the sincerity of the judge, the lack of plea bargaining, are all factors which support the decision of my colleagues. I do not, however, think that we should have to so struggle with these cases. Highly subjective case-by-case analysis and judgment can be avoided and our time better employed if all trial judges were required to obey the rules.
I would reverse the conviction and remand for trial.
NOTES
[1] People v. Barrows (1959), 358 Mich 267, 272.
[2] People v. Perine (1967), 7 Mich App 292; People v. Richard E. Johnson (1967), 8 Mich App 204; People v. Stewart (1968), 10 Mich App 553; People v. Mason (1968), 13 Mich App 277; People v. Combs (1968), 15 Mich App 450; and cases cited in fn 4, infra.
[3] People v. Dunn (1968), 380 Mich 693; People v. Stearns (1968), 380 Mich 704; People v. Winegar (1968), 380 Mich 719.
[4] People v. Gerald Jackson (1971), 30 Mich App 173; People v. Beverly Haywood (1970), 27 Mich App 365; People v. Lokatys (1970), 23 Mich App 633; People v. Thouin (1970), 24 Mich App 483; People v. Shell (1970), 23 Mich App 593; People v. Stoner (1970), 23 Mich App 598; People v. Porchia (1970), 21 Mich App 222; People v. Moore (1970), 21 Mich App 126; People v. Hooper (1969), 20 Mich App 560.
Cases recognizing the Barrows rule to be in force where the conviction was affirmed include People v. Anderson (1970), 28 Mich App 604; People v. Herbert Sanders (1970), 28 Mich App 274; People v. Webb (1970), 27 Mich App 339; People v. Sylvester Johnson (1970), 25 Mich App 258; People v. Wade (1970), 24 Mich App 518.
[5] But see People v. Shell, supra, People v. Lokatys, supra fn 4, decided in 1970, and People v. Combs, supra fn 2, decided in 1968, reversing 1958 (pre-Barrows) guilty-plea-based convictions.
[6] See, also, People v. Watson (1970), 22 Mich App 703; People v. Dickerson (1970), 23 Mich 621.
[7] Similarly, see People v. Sylvester Johnson (1970), 25 Mich App 258.
[8] Although I have referred to the direct questioning requirement as the Barrows requirement, actually its origin is an old statute still in force. See Edwards v. People (1878), 39 Mich 760; MCLA § 768.35 (Stat Ann 1954 Rev § 28.1058); People v. Rufus Williams (1970), 23 Mich App 459, 465, fns 7 and 8 and accompanying text.
[9] Whether a particular new or rejuvenated standard should be applied to old cases is a matter of judgment. Having in mind the difficulty of now prosecuting a case where the plea of guilty was accepted before Barrows was decided (i.e., a plea accepted before November 25, 1959), it would be disproportionate in those pre-Barrows cases where a preliminary examination transcript discloses a factual basis for the plea of guilty to now set aside the conviction because of a failure to question the defendant directly concerning the facts.
[10] Voltaire, Dictionnaire Philosophique, Art Dramatique (The Oxford Dictionary of Quotations [2d ed], p 557).
[11] Unfortunately this case of Coates is not the only case where the Combs-Bartlett (preliminary examination transcript) exception has been extended to justify affirmances of recent guilty pleas even though, in contrast with Combs and Bartlett, there was a total failure to comply with the Barrows requirement. See People v. Seales (1970), 26 Mich App 364; People v. Donald T. Moore (1970), 21 Mich App 150.
[12] In the cited case, before pleading, the defendants and their attorneys completed and presented to the court a printed form, furnished by the court, stating the defendants' responses to a number of inquiries by the court concerning their prospective pleas of guilty.
[13] Similarly, McCarthy v. United States (1969), 394 US 459, 467 (89 S Ct 1166, 1171, 22 L Ed 2d 418, 426), where the United States Supreme Court declared: "we reject the Government's contention that Rule 11 can be complied with although the district judge does not personally inquire whether the defendant understood the nature of the charge."
[14] MCLA § 768.35 (Stat Ann 1954 Rev § 28.1058).
[15] Reliance on the preliminary examination transcript in pre-Barrows cases and in cases where there is some factual basis in the record, albeit incomplete, is subject to the same objection. However, for reasons already stated, in pre-Barrows cases we may properly make allowances for the fact that Barrows was the first modern case reaffirming the direct-questioning requirement. Similarly, as to the incomplete record cases; we can properly distinguish between (i) a case where a judge makes a conscientious effort to ascertain the truth of the plea and the omission may have been inadvertent or because a plea-bargaining defendant was holding back in his account and (ii) a case where the judge makes no inquiry at all.
[16] See People v. Stoner (1970), 23 Mich App 598, 607; Griffin v. United States (1968), 132 App DC 108 (405 F2d 1378); North Carolina v. Alford (1970), 400 US 25 (91 S Ct 160, 27 L Ed 2d 162). Contrast People v. Blewett (1969), 18 Mich App 327, reversed (1969), 382 Mich 793, without opinion, apparently for noncompliance with MCLA § 768.35 (Stat Ann 1954 Rev § 28.1058) (see text accompanying fn 14, supra), where the defendant equivocated and the record did not show a careful inquiry by the judge either as to whether the defendant did in fact wish to plead guilty or that his plea was a well-considered and well-advised choice.
In Stoner, we said that a guilty plea may be accepted in a case where the defendant is unsure of his guilt. There the defendant claimed he was intoxicated at the time the offense was committed. we said that a plea of guilty to a lesser offense might be a sound choice in a case where intoxication is not a defense (it is a defense only to specific intent crimes; see People v. Kelley [1970], 21 Mich App 612) or in a case where there is substantial evidence of guilt and as well that the defendant was not intoxicated.
In Griffin the defendant claimed self-defense but was willing to plead guilty to manslaughter rather than face possible conviction of second-degree murder. The United States Court of Appeals for the District of Columbia held that it was error to refuse to accept Griffin's tendered plea of guilty (offered with the government's approval) and reversed his conviction of second-degree murder.
In Alford the United States Supreme Court held that a plea of guilty to second-degree murder may be accepted from a defendant charged with first-degree murder even though he protests his innocence. The Court said that "the record before the judge contains strong evidence of actual guilt." The Court declared that the Constitution does not bar acceptance of a guilty plea from an accused person "who, faced with grim alternatives, is willing to waive his trial and accept the sentence" for a lesser charge. The dissenters did not disagree; they would have reversed because "the decision to plead guilty was not voluntary but was `the product of duress.'" The dissenters are obviously correct; in North Carolina first-degree murder is punishable by death.
However, as long as we permit plea bargaining and prosecutors, although willing to accept a plea of guilty to a lesser charge, refuse to reduce the charge to the lesser charge unless the defendant pleads guilty (for my views see People v. Byrd [1968], 12 Mich App 186, 194), it would be sanctimonious to prevent a defendant from making a well-advised choice to plead guilty to a lesser charge unless he is also willing to stultify himself.
[17] In this connection, it is relevant that the proposed American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Pleas of Guilty, § 1.6, p 30, would require a judge who accepts a guilty plea to establish a factual basis for the plea. The President's Task Force Report: The Courts, makes a similar suggestion, p 13. See, also, Newman, Conviction, The Determination of Guilt or Innocence Without Trial (1966); Muzzi v. State (Del, 1970), 265 A2d 31; Ernst v. State (1969), 43 Wis 2d 661 (170 NW2d 713).
[18] My colleagues mention as a factor defendant Coates' failure to claim that he is innocent of the charge to which he pled guilty. To require such an allegation would simply add a formal element to the papers filed by a guilty-pleading defendant who appeals his conviction. Moreover, it is difficult to visualize how the allegation of innocence should be required to be made whether by the defendant from prison by letter to our Court or to his attorney; or in the brief filed by the defendant's attorney who ordinarily has no personal knowledge of the defendant's guilt or innocence.
It is noteworthy that in the cases decided by our Court cited in fns 2 and 4, reversing convictions based on guilty pleas for failure of the trial court to comply with the Barrows requirement, no reference was made in the opinions to any allegation of innocence. The no-claim-of-innocence argument is a makeweight.