People v. Jaworski

*38T. E. Brennan, J.

(dissenting). This case sets the Boykin controversy in the clearest possible light.

Boykinism can be divided into three varieties.

(1) Pure Boykinism holds that the record of a guilty plea, to pass constitutional muster, must contain:

(a) a statement of advice by the judge to the defendant, wherein the judge tells the defendant that he has three constitutional rights, (1) trial by jury, (2) to confront his accusers, and (3) not to be a witness against himself.

(b) a statement by the defendant, separate and apart from his guilty plea, by which the defendant, expressly waives each of these rights on the record.

Pure Boykinism waives the banner of Carnley v Cochran, “Presuming waiver from a silent record is impermissible.”

The error of Pure Boykinism, of course, is that it ignores the words of the United States Supreme Court in Boykin v Alabama, 395 US 238; 89 S Ct 1709; 23 L Ed 2d 274 (1969), “Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered * * * .”

The plea is the waiver. Boykin says so. No separate waiver is, or ever was required.

(2) Orthodox Boykinism recognizes that the guilty plea is itself the waiver, but insists upon the judicial statement of advice. By far the largest branch of the movement, this theory holds that no plea is valid upon its face unless the judge has told the defendant — whether represented by counsel or not — of each and every constitutional right he is about to waive by entry of his guilty plea. Orthodox Boykinism conclusively presumes that an accused person cannot know anything except what the judge has told him. It reasons thus:

*39A defendant can know nothing but what the judge tells him.

The judge failed to tell the defendant of a constitutional right.

ERGO: The defendant did not know of the constitutional right.

This process goes on to the logical conclusion that, since the defendant did not know of his constitutional right, his plea was not “understandingly and voluntarily” made.

It is obvious of course that a guilty plea is a waiver of many constitutional rights not enumerated in Boykin. The Sixth Amendment right to have compulsory process for obtaining witnesses in one’s favor is a good example. Orthodox Boykinism has not yet embraced the Sixth Amendment right to compulsory process. It seems to presume that since the United States Supreme Court failed to mention compulsory process, ignorance of that constitutional right has not yet risen to the dignity of involuntariness. The same can be said of speedy trial, double jeopardy and the like.

Common sense tells us that the major premise of this school of thought is less than axiomatic. Defendants indeed know many things which they have not heard from judicial lips.

If the defendant is a professor of constitutional law, or a veteran criminal and jail-house advocate, even Orthodox Boykmism will stumble red-faced to carve out exceptions to its own unyielding syllogism.

(3) Ecumenical Boykinism does not require the judge to play the role of the defense attorney. It merely requires a recitation of constitutional rights, either on the record, or on a piece of paper, duly signed in the defendant’s own hand.

*40It proceeds on the theory that defendant’s attorneys are presumed incompetent or dishonorable.

It holds out to appellate judges the false hope that a guilty plea can somehow be “buttoned down”, in a fashion so secure and final that those convicted upon guilty pleas will uniformly eschew the prison law library in favor of more rehabilitative pursuits.

But the argument falls on both logical and practical grounds. First, it ought to be assumed that a defendant represented by counsel, has been advised of his rights. Second, it ought to be abundantly clear that the more i-dotting and t-crossing is required of trial judges by appellate judges, the more fodder there will be for post-conviction applications.

Fortunately, there is another side to the Boykin story. It is simply that Boykin v Alabama does nothing more than accomplish the “bizarre” result ascribed to by Mr. Justice Harlan:

“The Court thus in effect fastens upon the States, as a matter of federal constitutional law, the rigid prophylactic requirements of Rule 11 of the Federal Rules of Criminal Procedure. It does so in circumstances where the Court itself has only very recently held application of Rule 11 to be unnecessary in the federal courts. See Halliday v. United States, 394 U.S. 831 [89 S Ct 1498; 23 L Ed 2d 16] (1969). Moreover, the Court does all this at the behest of á petitioner who has never at any time alleged that his guilty plea was involuntary or made without knowledge of the consequences. I cannot possibly subscribe to so bizarre a result.”

What Boykin prohibited to the states is a record silent on the question of voluntariness.

Boykin requires nothing more of state judges than Rule 11* requires of Federal judges.

*41The trial judge must inquire into voluntariness, because the trial judge must satisfy himself that the plea is voluntary. One cannot read the transcript of the plea in this case without being struck by the inordinate caution of the trial court.

The trial judge made all of the usual and necessary inquiries into threats, promises and the like. He obtained from the defendant’s own lips the admission that he attempted to break into a store on Northwestern and Orchard Lake Road, and he carried on such a dialogue with the defendant that any objective observer would have to conclude that the defendant understood the nature of the charge and the consequence of his plea.

Nothing more is required by Federal Rule 11, nothing more is required by Boykin, nothing more is required by OCR 1063, 785.3(2).

I vote to affirm the conviction.

ER Crim P, 11. — Reporter.