People v. Jackson

On Remand

V. J. Brennan, P. J.

Defendant, Darryl Kennard Jackson, was convicted upon his plea of guilty of the offense of assault with intent to rob being armed. MCLA 750.89; MSA 28.284. He was sentenced to a term of from 7 to 20 years in prison and now appeals.

In October, 1973, the defendant herein was faced with two charges of armed robbery, each arising out of a separate criminal transaction. On Thursday, October 4, 1973, defendant appeared in court and, with respect to the first charge of armed robbery, pled guilty to the lesser charge of assault with intent to rob being armed. At this time defendant was properly advised of each of the *470rights specified in GCR 1963, 785.7(1)(d)(ii), and his plea was accepted by the trial court. On Friday, October 5, 1973, defendant appeared in court on the other armed robbery charge, represented by a different attorney, and again pled guilty to assault with intent to rob being armed. It is from this second plea of guilty that defendant now appeals.

Defendant contends that his guilty plea to this second charge must be reversed because he was not advised of his right "to be presumed innocent until proven guilty beyond a reasonable doubt”. GCR 1963, 785.7(1)(d)(ii).

Pursuant to GCR 1963, 785.7(1)(d)(ii), the defendant is to be informed that his plea of guilty waives "the right to be presumed innocent until proven guilty beyond a reasonable doubt”.

As to subsection (d) of the above rule, Guilty Plea Cases, 395 Mich 96, 122; 235 NW2d 132 (1975), states:

"The primary purpose of subsection (d) is to impress on the accused that by his plea of guilty he waives his right to a trial. If it appears on the record that this purpose has been achieved, the omission of one or another of these rights, other than a Jaworski [People v Jaworski, 387 Mich 21; 194 NW2d 868 (1972)] right, or the imprecise recital of any such right, including a Jaworski right, does not necessarily require reversal.”

The Court in Guilty Plea Cases, supra, at 121, indicates the Jaworski rights to be the right to a jury trial, the right to confront one’s accusers, and the right to remain silent. Thus, the omission of the right to be presumed innocent, a non-Ja worski right, does not necessarily require reversal.

Given the above analysis, it would appear that the example of the Burkett case cited in Guilty Plea Cases, supra, at 125, is applicable to the *471present case. In Burkett, the defendant had pled three times before the same judge on the same day. The Supreme Court remanded the case back to see if the defendant had been advised of his rights by the same judge on another charge albeit on the same day. The right involved in this case is a non-Jaworski right. We know from the transcript that here he was given the presumption of innocence warning in the first plea case the day before.

Conviction affirmed.

Danhof, J., concurred.