People v. Gamble

*231T. M. Burns, J.

{dissenting), I cannot agree with the majority opinion. When defendant appeared before the court and pleaded guilty to second-degree murder, there was no examination of the defendant by the court. GCR 1963, 785.3(2) provides:

“Arraignment and Sentencing. In every prosecution wherein the accused is charged with a felony, the trial court shall conform to the following practice :

“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 aware that under People v Winegar, 380 Mich 719, 731 (1968), a plea of guilty will not be set aside after sentence because of failure by the examining judge to comply in illis verbis with GCR 1963, 785.3(2), in the instant situation there was no attempt to comply with the rule at all. The trial judge, except for explaining the difference between manslaughter and second-degree murder, relied entirely upon his previous examination of the defendant at the prior arraignment when he had pleaded guilty to manslaughter. In my opinion this was error.

Defendant’s appearance before the court to plead guilty to second-degree murder constituted an entirely new proceeding. It was, therefore, necessary for the court to comply with the procedures set forth in the court rule before accepting the plea despite *232the fact that defendant had previously appeared before the court and pleaded guilty to an entirely different offense.

In People v Dunn, 380 Mich 693, 700-701 (1968), the Michigan Supreme Court stated:

“We do not find that ‘consequence of his plea’ has been precisely defined in any prior decision of this Court as that phrase is used in GrCR 1963, 785.3. We here hold that the meaning of the ‘consequence’ of a plea of guilty, within the wording of the rule, is that an accused, by so pleading, waives his right to trial by jury, or trial without a jury by the court, and that additionally the accused subjects himself to whatever penalty is prescribed by law, including possible confinement in a penal institution. Under the rule, the accused must be advised minimally of the foregoing.”

Defendant was not advised of his right to a trial by jury or a trial by the court. Therefore, since this was a proceeding separate and distinct from his appearance before the court when he pleaded guilty to manslaughter, and since the court did not meet the minimal requirements set forth in Dunn, supra, this cause should be reversed.

There is another and more important reason for reversing. Although it might be said that defendant knew the “consequence of his plea” because he had been informed at the earlier arraignment of his right to a trial by a jury or the court, it cannot be said that defendant’s plea was “freely, under standingly, and voluntarily made, without undue influence, compulsion or duress, and without promise of leniency”.

From a barren record it is impossible to determine why defendant chose to withdraw his plea of guilty to manslaug'hter with a maximum penalty of 15 years and enter a plea of guilty to second-degree *233murder which has a maximum penalty of life imprisonment. It would appear, therefore, that the procedure set forth in the rule would be more important in this situation than under more normal circumstances where the defendant is pleading to the crime charged or to a lesser included offense.

Since defendant’s appearance before the court to withdraw his plea of guilty to manslaughter and enter a plea of guilty to second-degree murder constitutes a separate distinct proceeding, it is my opinion that the trial judge was again under a duty to make a determination that the plea was freely, understandingly, and voluntarily made, as required by the cited rule.

Since the trial court made no examination of the defendant, there is no way of knowing from the record whether or not defendant’s plea of guilty was freely and voluntarily made. The trial court simply assumed that because defendant’s earlier plea of guilty to manslaughter was voluntary, so was his plea to second-degree murder. The court rule, however, mandates an examination of the defendant by the trial court, not assumptions. It is, therefore, my opinion that the trial court failed to comply with GCR 1963, 785.3, and its failure to do so constitutes reversible error.

I vote to reverse and remand.