PEOPLE
v.
FERGUSON.
Docket No. 2,623.
Michigan Court of Appeals.
Decided September 25, 1968. Leave to appeal granted December 12, 1968.Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Donald A. Kuebler, Prosecuting Attorney, and Paul G. Miller, Jr., Assistant Prosecuting Attorney, for the people.
Gadola, Gadola & Gadola, for defendant.
LEVIN, J.
The defendant, Leonard Ferguson, pleaded guilty to armed robbery[1] and was sentenced *364 to serve 30 to 50 years in State prison on June 30, 1958. He appeals, claiming the trial judge erred in failing to advise him before acceptance of his guilty plea of the minimum sentence the trial judge may have been obliged to impose and of the maximum sentence he might impose.[2]
Whether a trial judge should advise the defendant of the maximum number of years he may be sentenced to serve upon a plea of guilty has been the subject of many opinions of our Court. Recently in People v. Charles A. White (1967), 8 Mich. App. 220, it was held that "the phrase `consequence of his plea' [GCR 1963, 785.3][3] bears no relation to advice by the trial judge to a defendant with respect to punishment" and that the consequence of pleading guilty is "to waive the constitutional right to trial and all the incidents thereof." In White, the Court dismissed as dictum the reference in People v. Atkins (1966), 2 Mich. App. 199, to "consequence of his plea" in support of Atkins' holding that the trial judge in that case should have advised the defendant, who was just 16, of the maximum sentence for the crime there charged. However, the White Court went on to observe (p 223):
"The controlling questions in Atkins, supra, were whether a youthful defendant understandingly waived his right to counsel and understandingly pleaded guilty." (Emphasis supplied.) *365 Two of the 3 judges who signed the White opinion also signed People v. Taylor (1968), 9 Mich. App. 333 (leave to appeal granted [1968], 380 Mich. 754), where the Court addressed itself to GCR 1963, 785.3 in general and the question presented in People v. White, supra, in particular (p 335):
"At no time did the trial judge advise defendant of the punishment which might follow his conviction by plea of guilty. Our recent decision in People v. White (1967), 8 Mich. App. 220, holds that such advice bears no relation to the phrase `consequence of his plea' but such advice is involved in the determination required by 785.3(2) supra, that the plea was `freely, understandingly and voluntarily made, without undue influence, compulsion, or duress, and without promise of leniency.'" (Emphasis supplied.)[4]*366 The obligation to determine whether a guilty plea "was freely, understandingly and voluntarily made" is imposed upon trial courts by GCR 1963, 785.3(2) "regardless of whether he [the defendant] is represented by counsel."[5]
The Supreme Court recently declared in People v. Dunn (1968), 380 Mich. 693, that the previously mentioned court rule provision requiring that an accused person who has pled guilty be advised of the "consequence of his plea", does not oblige the trial judge to inform him of the maximum sentence, favorably citing People v. White, supra. No issue was presented in Dunn as to whether Dunn's plea was "understandingly" made. Dunn had a prior record of criminal conviction; he was charged with prison escape as a second felony, for which offense the maximum sentence was 4-1/2 years.[6] We do not read Dunn as relieving the trial judge of the court rule imposed obligation "regardless of whether he [the defendant] is represented by counsel * * * [to] ascertain that the plea was freely, understandingly, and voluntarily made." (Emphasis supplied.) We find nothing in Dunn's majority opinion inconsistent with the following pertinent observation in Mr. Justice ADAMS' separate dissenting opinion in that case (p 702):
"No pat rule or formula can satisfy the constitutional requirement of intelligent and understanding *367 waiver which depends upon the capacities of a defendant in a given case as well as the explanation by the trial judge."
See, also, People v. Merhige (1920), 212 Mich. 601, 612, where, prior to the adoption of Court Rule No 35A (1945) (the predecessor of present rule 785.1), in a case where the defendant had been sentenced to life imprisonment on his plea of guilty to armed robbery, our Supreme Court declared that among the factors to be considered in appraising the voluntariness of a guilty plea is whether the defendant has been "advised of the extent or nature of the punishment that might be inflicted."
We conclude that, while the failure to inform an accused person of the maximum sentence will not necessarily invalidate his guilty plea, the failure of the record to show that the defendant was aware of any minimum and of the maximum sentence may still be considered in determining whether such a plea was "understandingly" made.
We are persuaded from our examination of the record in this case that the trial judge erred in failing to inquire of the defendant Ferguson whether he was aware of the fact that upon conviction of armed robbery he might be sentenced to State prison for life or for any term of years. There is nothing in the record indicating the defendant was aware he faced such a lengthy sentence upon acceptance of his plea of guilty. Although the defendant had a prior conviction record, each of his prior convictions was in a State other than Michigan and the sentences imposed were relatively short. We do not think the defendant's prior criminal experience would necessarily have informed him that in Michigan the penalty for armed robbery is life or any term of years. Indeed, the defendant's prior experience may have led him to believe the penalty he *368 faced was of a magnitude far less than in fact it was within the trial judge's power to impose and which actually was imposed in this case.
When convicted, the defendant was 22 years old. The trial judge observed of the defendant and his codefendant: "Neither of these men have average intelligence nor scarcely any education." That observation by the trial judge weighs heavily with us in our review.
We do not mean to be understood as challenging the wisdom of the heavy sentence imposed in this case, but rather as saying that under the circumstances the trial judge should have inquired of the defendant whether he was aware of the possible minimum and of the maximum possible sentence as part of the obligation imposed upon the judge by the rule "regardless of whether he [the defendant] is represented by counsel", to determine that the plea was understandingly made.
We are not convinced beyond a reasonable doubt that the error was harmless.[7]
*369 The plea and conviction based thereon are set aside and a new trial granted.
T.G. KAVANAGH, J., concurred with LEVIN, J.
QUINN, P.J. (dissenting).
In order to place this case in its proper appellate posture, it should be noted that this appeal is from the trial court's denial of defendant's motion to withdraw plea and vacate sentence. Such a motion is addressed to the *370 discretion of the trial court. People v. Vasquez (1942), 303 Mich. 340. What we review is the exercise of that discretion by the trial court, and the grant or denial of appellate relief is controlled by our determination of whether or not the discretion has been abused.
The standard by which we determine abuse of discretion is established by statute, CL 1948, § 769.26 (Stat Ann 1954 Rev § 28.1096) and by rule, GCR 1963, 529.1. A finding of abuse of discretion requires a finding of violation or denial of constitutional right or of miscarriage of justice. People v. Winegar (1968), 380 Mich. 719.
Defendant makes no claim that a constitutional right was violated or denied nor that there has been a miscarriage of justice, probably because any such claim would not be supported by the record. His sole argument for relief is based on alleged technical noncompliance with Court Rule No 35A (1945), presently GCR 1963, 785.3.
On the authority of People v. White (1967), 8 Mich. App. 220, People v. Collins (1968), 380 Mich. 131, and People v. Winegar (1968), 380 Mich. 719, I vote to affirm.
NOTES
[1] CL 1948, § 750.529 (Stat Ann 1954 Rev § 28.797).
[2] One convicted of armed robbery may not be put on probation. CL 1948, § 771.1 (Stat Ann 1954 Rev § 28.1131).
[3] "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 consequences 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 to accepting the plea of guilty and imposing sentence shall assert 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." GCR 1963, 785.3(2).
[4] Similarly, in Kotz v. United States (CA 8, 1965), 353 F2d 312, 314, the court observed: "Due process, as related to the validity of a plea of guilty, requires that the plea be voluntarily and understandingly made. In practice, Rule 11, Federal Rules of Criminal Procedure, 18 USCA directs that the court not accept such a plea unless it is satisfied that these elements exist. Such understanding as is necessary to give validity to the plea includes knowledge and comprehension, not only as to the nature of the charge, but also as to the penalty which can be imposed. In the language of the Supreme Court, the plea must be made `with full understanding of the consequences'." (Emphasis supplied.) The court ruled, however, that advice as to possible sentence length need not be given by the judge, if the defendant in fact had obtained advice in that regard from his attorney, and, since defendant's attorney asserted he gave such advice to the defendant, ordered an evidentiary hearing on the question whether defendant had in fact received such advice from his attorney before offering to plead guilty.
Harper v. United States (CA 10, 1966), 368 F2d 53, 55, interprets rule 11 of the Federal Rules of Criminal Procedure (providing that before acceptance of a guilty plea the court shall first determine "that the plea is made voluntarily with understanding of the nature of the charge" as requiring inquiry by the trial judge whether the defendant has been advised of the maximum sentence that may be imposed). Accord: Munich v. United States (CA 9, 1964), 337 F2d 356, 361 (stating that the defendant should have been told that he could not be considered eligible for probation because of the nature of the offense to which he pled guilty [see footnote 2] and that where the court rule has not been followed "the government has the burden of proving that the error was harmless, i.e., that the defendant made his plea of guilty voluntarily and with understanding of the nature of the charge.") (p 360.)
Compare Von Moltke v. Gillies (1947), 332 U.S. 708, 724 (68 S. Ct. 316, 92 L. Ed. 309).
[5] GCR 1963, 785.3(2) is quoted in footnote 3, supra.
Compare People v. Gill (1967), 8 Mich. App. 89, 92, where the Court observed, "The presence of counsel does not in all cases warrant the inference that the defendant is apprised of the charge lodged against him."
[6] As to the penalty for prison escape, see CL 1948, § 750.193 (Stat Ann 1962 Rev § 28.390), subsequently amended by PA 1967. No 103. As to the increased penalty for second offense, see CLS 1961, § 769.10 (Stat Ann 1954 Rev § 28.1082).
[7] People v. Liggett (1967), 378 Mich. 706, 716; Munich v. United States, supra, discussed in footnote 4, supra. Compare Harrison v. United States (1968), 392 U.S. 219, 224 (88 S. Ct. 2008, 2011; 20 L. Ed. 2d 1047, 1052), which suggests that where error has been committed the burden of proving it was not harmless should not be imposed on the accused person.
We find nothing in the record indicating that defendant's attorney gave the defendant advice as to the possible minimum and maximum sentence.
Before defendant's plea was accepted he was asked by the trial judge whether he had "talked this over with your attorney", to which question the defendant responded, "Yes."
At the hearing on defendant's petition to vacate the plea of guilty and the sentence, the defendant was represented by the same attorney who represented him at the time he pled guilty. The attorney was not asked, nor given the opportunity to state, whether he had informed the defendant of the possible minimum and maximum sentences. This appears in the following transcript of the colloquy between this attorney and the judge who heard the motion (not the sentencing judge):
"Mr. Gadola: May I approach the bench?
"The Court: Yes. That is on the record. The Court asked him if he discussed it with you.
"Mr. Gadola: Yes.
"The Court: All about the plea and what have you. He might not have said how much time he can get and all that but it will be unusual for a prisoner or even a lawyer, even an inexperienced lawyer, not to tell his client what he could get in a case. That is the first thing that they usually do and I doubt whether you did not do it, Mr. Gadola.
"All I am saying is that there is no sense in discussing it any further. I have denied it. Now, if you want to go any further and you feel there is a conflict of interest, then, you will have to file a motion on that basis if you feel that about the affidavit. Now, I do not know what you heard that you will be able to testify to or what you can swear to.
"Mr. Gadola: That's my
"The Court: I don't know but it would appear to me I do not know what will be gained by it. Was there a trial for Mr. Keel? [the other defendant]
"Mr. Gadola: Both pleaded guilty, your Honor.
"The Court: There was a preliminary examination, though.
"Mr. Gadola: Yes.
"The Court: And I imagine it was quite a thorough one.
"Mr. Gadola: Mr. Ferguson did not have an attorney. Mr. Keel did.
"The Court: I cannot see just assuming even if the Court of Appeals would grant him the right to vacate his sentence and all that, I don't see what is going to be gained by it except possibly I certainly know I won't reduce it. I may even increase it. I don't know; depending on what might be the outcome.
"Mr. Gadola: Yes. The complaining witness is still available.
"The Court: That is right and the preliminary examination could be used if he were not even available and if I remember right, a pistol was used to beat him unmercifully.
"Mr. Henneke: And a hammer, I understand.
"The Court: Or a hammer. I do not know what he can gain by doing it.
"Mr. Gadola: My only concern was how I can get it in, whether by an affidavit
"The Court: You write him and tell him I denied it to him and tell him why I denied it. Then, we will cross the bridge when we get to it."