People v. Taylor

387 Mich. 209 (1972) 195 N.W.2d 856

PEOPLE
v.
TAYLOR

No. 24 April Term 1971, Docket No. 52,920.

Supreme Court of Michigan.

Decided April 6, 1972.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Arthur N. Bishop, Assistant Prosecuting Attorney, for the people.

Arthur J. Tarnow, State Appellate Defender, and Jane Burgess, Assistant Defender, for defendant on appeal.

WILLIAMS, J.

Two issues are dispositive in this case. The first issue is whether review of a guilty plea must begin in the trial court before being heard in the appellate courts. The second issue is whether the trial judge in this case met the standards of Court Rule No 35A (1945), and People v Barrows, 358 Mich. 267 (1959) in taking a 1960 guilty plea.^[1]

The facts of the originally charged offense, breaking and entering a business place in the nighttime with intent to commit a larceny, have no significance to this case on appeal. Defendant pled guilty in Detroit Recorder's Court to a specially added count of breaking and entering in the daytime, March 14, 1960.

On March 28, 1960, defendant was placed on one year's probation plus $100 costs and $100 restitution. On April 4, 1961, after the year's probation was over, defendant's probation was extended one year to March 28, 1962, because practically nothing had been paid on the account.

On July 6, 1961, a warrant for probation violation was issued, after a notice of probation violation was presented with warrant for arrest because defendant had violated his probation conditions in two respects. Defendant had moved without notifying the Probation Department. Defendant had been named as a defendant in a robbery armed charge. Defendant stated the probation officer told him "I am going to violate you the next time you come down here with no money. So I never came back again. This was in the year 3-29-1961."

By his own admission defendant absconded to California in 1963. On December 2, 1964, he was sentenced to prison there for robbery armed and was not released until July 23, 1968.

Defendant jumped parole in California and returned to Michigan. He was soon picked up, charged with probation violation, his probation revoked and on November 14, 1968, sentenced to 4-1/2 to 5 years in prison.

Defendant pro se and defendant's assigned counsel filed separate pleadings. Defendant's pleadings pro se may be quickly disposed of. On December 20, 1968, defendant pro se filed habeas corpus in the Court of Appeals from Jackson prison. At the same time he requested counsel as an indigent, which was granted February 3, 1969. On February 26, 1969, he requested leave to appeal. In July, 1969, the habeas corpus writ, treated as a delayed appeal, was denied without prejudice in favor of pleadings by duly appointed counsel.

Defendant's counsel attempted to file a claim of appeal, May 23, 1969, but it was returned by the Court of Appeals Clerk May 29, 1969, with a letter advising of the pendency of an application for delayed appeal by the defendant in propia persona and that "a judgment of probation violation is not appealable as a matter of right", citing Calhoun v Macomb County Judge, 15 Mich. App. 416 (1968). (See footnote 5.) The court file shows a letter dated June 30, 1969, from defense counsel of an intention to file a supplemental writ of habeas corpus, but the actual writ seems not to have been filed.

The definitive pleadings begin with defense counsel's motion filed in the Court of Appeals March 31, 1970, for superintending control. It is based on two grounds, the failure of the court in the plea-taking to ascertain the facts of defendant's participation in the crime — Court Rule No 35A (1945), and the lack of a legal waiver of trial by jury. The people moved to dismiss on the basis first that "superintending control (mandamus) cannot be used in lieu of appeal in probation matters in which appellate courts do not interfere in the absence of flagrant violation of constitutional rights" and second "an incarceratory sentence cannot be used as a collateral attack on an unchoate and long delayed original probation order". The people filed a reply brief on the same day with the same arguments. On May 5, 1970, the people filed a supplemental brief in support of their motion to dismiss addressed to the proposition that a trial judge may amend a probation order at any time within the statutory five years plus the time the statute is tolled by an absconding probationer. On May 15, 1970, defendant's counsel filed an argumentative answer to the motion to dismiss.

On June 5, 1970, the Court of Appeals, treating the complaint for superintending control "as an application for delayed appeal pursuant to GCR 1963, 711.4(2)", ordered such application "denied for lack of merit in the grounds presented" and consequently the motion to dismiss was denied as moot. On September 22, 1970, this Court granted leave to appeal.

I. — Should Review of Guilty Pleas Begin in the Trial Court?

The question of whether review of guilty pleas should begin in the trial court appears to be one of first impression in this Court.

There are several types of requests for review which arise from pleas of guilty. One such type relies on facts not contained in the record. Often involved are allegations contradicting the voluntariness of the plea. Logically matters of this type must be reviewed in the trial court because it requires fresh testimony not a matter of prior record.

There is one order of this Court which specifies that where the voluntariness of a plea of guilty is involved requiring evidence not on the record, that case should begin in the trial court. The order of this Court in People v Kenneth Carlton, Jr., Supreme Court No 51,240, was as follows:

"The People of the State of Michigan, Plaintiff, vs. 51240 Kenneth Carlton Jr. Defendant.

"In this cause an application is filed by defendant for leave to appeal from the order of the court of appeals denying leave to take a delayed appeal, and an answer in the nature of affidavits having been filed by plaintiff, On Order of the Court, the application for leave to appeal from the court of appeals is considered and the same is DENIED for the reason that no justification therefor is presented. The cause is REMANDED to the circuit court of Bay county to assume jurisdiction and to make a determination upon a separate record of the voluntariness of the written confession and of the plea of guilty made by petitioner on December 20, 1960. At this hearing, after due notice to the prosecuting attorney, the defendant Carlton may take the stand and testify for the limited purpose of making of record his version of the facts and circumstances under which the confession was obtained and the plea of guilty made. By so doing, the defendant does not waive his right to decline to take the stand on trial in chief, if retrial is ordered, nor does he waive any of the other rights stemming from his choice not to testify.

"If the trial judge, on the basis of the hearing and record made before him, determines that the plea of guilty was involuntarily made, he shall enter an order vacating the sentence and the plea of guilty and the defendant shall be rearraigned and required to plead anew to the information. The said order shall constitute a final judgment for purposes of review." July 15, 1965.

In commenting on this order in People v Carlton, 5 Mich. App. 20, 23 (1966), the Court of Appeals said:

"The Supreme Court remanded the case to the trial court to determine the voluntariness of defendant's confession and his plea of guilty. The lower court was instructed to vacate the sentence and plea of guilty, if, after hearing, he determined that the plea was involuntarily made. The order also provided that the order of the lower court would constitute a final judgment for purposes of review."

See also People v Horvath, 25 Mich App 649-650 (1970): " * * * the proper forum for entertaining a post-plea allegation of involuntariness not supported by the record is the trial court." People v Dorner, 24 Mich. App. 306, 308 (1970); People v Kenny Smith, 20 Mich App 307-308 (1969).

There are other modern cases involving the review of the voluntariness of a guilty plea with facts outside the record in which review was begun in the trial court, though the issue of where such review should begin was not raised. See People v Rufus Williams, 386 Mich. 277 (1971); People v Roger Johnson, 386 Mich. 305 (1971); People v Goldman, 245 Mich. 578 (1929); People v Williams, 225 Mich. 133 (1923); People v Taylor, 383 Mich. 338 (1970);^[2]People v Kobrzycki, 242 Mich. 44 (1928).^[3] See also People v Bumpus, 355 Mich. 374 (1959) where there was both the question of voluntariness of the plea including allegations outside the record and the constitutional question of right to counsel. People v Skropski, 292 Mich. 461 (1940). In People v Vasquez, 303 Mich. 340 (1942) the motion to withdraw was largely bottomed on an affidavit that the sheriff advised "the best thing for me to do was to waive examination and plead guilty * * * my punishment would be placed on probation * * *". (303 Mich. 340, 342.)

There is little question that the old practice was to review guilty pleas by writ of error to the Supreme Court, even in the "voluntary" cases. Edwards v People, 39 Mich. 760 (1878); Henning v People, 40 Mich. 733 (1879); Clark v People, 44 Mich. 308 (1880); People v Ferguson, 48 Mich. 41 (1882); People v Coveyou, 48 Mich. 353 (1882); People v Lepper, 51 Mich. 196 (1883); People v Ellsworth, 68 Mich. 496 (1888) — voluntariness plus statutory construction. Bayliss v People, 46 Mich. 221 (1881) is interesting because on the question of voluntariness, a writ of certiorari was issued to trial judge and he made a return on the extent of investigation he made, showing that the case might well have begun there. There were other assigned errors. The recent order in Carlton instead of considering the merits on appeal, as these cases do, remanded the merits to the trial court.

We hold all cases that involve showing matters not already on the record such as cases claiming involuntary pleas based on alleged beatings or inducements must first be brought to the trial court for review. Carlton is authority for this and overrules, if sub silentio, the earlier cases following a different practice.^[4]

In addition to these cases involving testimony not on the record there is a strong practice of bringing cases for review of guilty plea decisions first to the trial court, although there are some that have been brought first to the Court of Appeals.

Bumpus suggests another group of cases where the review was started in the trial court. There are several that raise the constitutional question of right to counsel along with the question of whether the plea was "understandingly" given. People v Dunn, 380 Mich. 693 (1968) — right to counsel and uninformed as to nature of accusation. People v Vester, 309 Mich. 409 (1944) — right to counsel and misunderstanding of legal elements of crime. These cases involve questions on the record.

There are at least three other cases where the issue should appear on the record. In People v Lang, 381 Mich. 393 (1968) the question was one of statutory interpretation of the right of a parole board to "flop" the defendant in an indeterminate sentence after parole revocation. In In re Palmer, 371 Mich. 656 (1963) and People v Parshay, 379 Mich. 7 (1967) the question was simply whether the defendant was informed as to his constitutional right to counsel. In People v Ferguson, 383 Mich. 645 (1970), the defendant alleged he was uninformed as to the maximum penalty.

There are two cases raising the same question as the case at bar, namely did the trial court investigate the truth of the plea, in which the review was initiated in the trial court. The first is the lead case in the field, People v Barrows, 358 Mich. 267 (1959). The question of whether the trial court made a satisfactory investigation is, of course, a matter on the record. The second case is People v Stearns, 380 Mich. 704 (1968). There in addition to the question of the court satisfying itself as to the truth of defendant's guilty plea were questions of right to appointed counsel and understanding of the accusation. A somewhat similar case is People v Merhige, 212 Mich. 601 (1920). There the claimed error was that the defendant did not really plead guilty, and that the judge should have recognized he really was not guilty and should have so advised him.

There are also a few modern cases that were brought directly in the appellate court. People v Jaworski, 387 Mich. 21 (1972) and People v Butler, 387 Mich. 1 (1972) involve failure of the pleataking court to advise as to constitutional rights. People v Hobdy, 380 Mich. 686 (1968) relates to no express waiver of counsel. People v Dudley, 173 Mich. 389 (1912) challenged the jurisdiction of the plea-taking court and the constitutionality of the probation statute. People v Fisher, 237 Mich. 504 (1927) raised the statutory interpretation question as to whether on revocation of probation the court could sentence to 7-12 months after having imposed a fine as a condition of probation.

There are two interesting cases used by the Court of Appeals to preclude filing of claims of appeal from revocation of probation.^[5] The people's brief also states "Neither can there be a direct appeal of probation violation and consequent revocation: Calhoun v Macomb Circuit Judge (1968), 15 Mich. App. 416, 422-423. This was fortified by People v Stanley (1969), 18 Mich. App. 596, 597." In both cases appeal as of right was denied and in People v Dixon, 18 Mich App 591-592 (1969), the Court said "* * * judgments entered after probation revocation are not appealable as of right * * *" citing Calhoun. In Calhoun the Court said there was an appeal as of right but it must be within 60 days after being placed on probation (15 Mich 416-417).

Upon consideration of all of these cases, we find that commencing post plea review of guilty pleas in the trial court is the preferable policy.

Such review by motion has the advantage of giving the trial judge the opportunity to consider whether or not his prior and complained of action was correct or not, and, if not, to take necessary steps to correct it. Such steps probably would be to vacate the sentence and permit the withdrawal of the plea and proceed afresh. Not only would the trial judge have the opportunity to consider whether or not his action was correct, as he would when a trial ruling was objected to, but the appellate court would receive the case similar to a trial case after the trial court had ruled on a specific exception with adversary arguments if necessary.

Such review by motion at the trial court level would have the additional benefit of being brought before the original trial court without the delay and expense of initiating appellate procedures.

Beneficial as commencement of review in the trial court may be, there are certain obvious cases where doing so would be futile and non-productive. Where for example the basis for review has already been brought to the attention of the trial judge and he has ruled on it adversely or has on the record refused to consider it, it would be a patent waste of time and a useless act to require the defendant to bring the matter to the attention of the trial court again.

With the exception of such cases as the forementioned we hold that proper procedure requires commencing post plea review in the trial court.

This returns consideration of correction of error, if that is appropriate, or the withdrawal of the guilty plea after sentence, to the sound discretion of the trial court. People v Vasquez, 303 Mich. 340, 342 (1942); People v Goldman, 245 Mich. 578, 583-584 (1929). Furthermore, in addition to fundamental fairness to the trial court and economy and speed of operations, this will permit the trial court, if it determines that is proper, to vacate the plea and set a speedy date for trial.

One further point in passing. The motion in the trial court to review the taking of the guilty plea is not a substitute for defendant's constitutional appeal as a matter of right. Const 1963, art 1, § 20. If the trial court denies the motion to review or vacate, then the appeal as a matter of right lies if the proper steps are taken. As already indicated such a motion should often obviate the necessity for an appeal as of right because the trial court in many instances will be able to correct the alleged error or vacate the plea.

The review in the instant case more properly should have been begun in the trial court. However, since it has already been argued in two courts, since heretofore there has been no definitive opinion from this Court on the proper practice, and since it would work an injustice on the defendant to be remanded to the trial court at this point without consideration of the merits, we will exercise our inherent right to review sua sponte. People v Dorrikas, 354 Mich. 303 (1958); People v Farmer, 380 Mich. 198 (1968).

II. — Did the Trial Judge Meet the Standards of Barrows?

The critical language of People v Barrows, 358 Mich. 267, 272 (1959) is as follows:

"The direct questioning of a defendant by the trial judge on plea of guilty is required by the rule for the purpose of establishing the crime and the participation therein of the person pleading guilty."

The whole transcript pertinent to defendant Robert Taylor is set out below:

"The Court: The People vs. Sylvester Harris, Robert Taylor and Harold Jenkins, breaking and entering a business place in the night time with intent to commit larceny.

"Mr. Flanigan [assistant prosecutor]: I move to add a count of breaking and entering in the daytime.

"The Court: Motion granted.

* * *

"Mr. Gillis [attorney for defendant]: Your Honor, I have discussed this matter with Mr. Taylor, advised him of his right to trial by jury or by the Court if he wishes. I have also advised him of the maximum penalties involved on the charge of breaking and entering in the daytime and after full discussion he has advised me that he wishes to withdraw his plea of not guilty and enter a plea of guilty to the added count.

"The Court: Is that all right with the prosecutor?

"Mr. Flanigan: Yes, your Honor.

"The Court: Robert Taylor, you want to plead guilty of breaking and entering a business place in the daytime with the intent to commit larceny?

"The Defendant: Yes.

"The Court: Your plea of guilty is free and voluntary?

"The Defendant: Yes.

"The Court: No one has promised you anything?

"The Defendant: No.

"The Court: No one has induced you to plead guilty?

"The Defendant: No.

"The Court: You are pleading guilty because you are guilty?

"The Defendant: Yes.

"The Court: Your plea of guilty is of your own free will?

"The Defendant: Yes.

"The Court: What?

"The Defendant: Yes.

"The Court: I will accept the plea of guilty of breaking and entering a business place in the daytime with intent to commit larceny. Refer to Clinic and Probation Department. Sentence, two weeks from today."

The most apposite language in the plea-taking hearing presents us with: "The Court: You are pleading guilty because you are guilty?

The trial court as the transcript shows made a reasonable effort according to the standards of the day to "ascertain that the plea was freely, * * * and voluntarily made, without undue influence, compulsion, or duress, and without promise of leniency".^[6] On the question of "understandingly"^[7] the procedure is less satisfactory.

The provision that "the court shall examine the accused * * * and * * * shall ascertain that the plea was * * * understandingly * * * made"^[8] requires the judge to conduct such an examination as to show that what the defendant actually did was indeed a crime or otherwise he could not understandingly plead guilty. If what he did was actually not a crime, then if he pled guilty to it, it would not be an understanding plea.

In the instant case the judge's examination so far as the record shows was to ascertain "You are pleading guilty because you are guilty?" This puts the burden on the defendant to know whether indeed he was legally guilty, and of what,^[9] and he might well not understand. See People v Merhige, 212 Mich. 601 (1920). See also assertions in a recent newspaper article, for example, that defendants plead guilty in Wayne County although they believe they are innocent just to get out of the jungle that is the Wayne County jail. (Detroit Free Press, October 10, 1971.)

In any event it is the court's duty to ascertain by its examination facts which would convince the court that indeed a crime had been committed by the defendant.^[10] Such examination is not the equivalent of a legal trial but it must objectively indicate that the court had fulfilled this obligation.

Since the record as presented does not show the necessary examination, the defendant's plea of guilty is vacated and this case is remanded to the trial court for appropriate proceedings.^[11]

Reversed and remanded for appropriate proceedings.

T.M. KAVANAGH, C.J., and T.G. KAVANAGH and SWAINSON, JJ., concurred with WILLIAMS, J.

ADAMS, J., concurred in the result.

BLACK, J. (dissenting).

The Court's opinion, standing as typical these days for reversal of another order denying another belated application by another professional felon for review of his original conviction (March 14, 1960), was delivered to the writer December 9, 1971.

When a Justice dissents, he is required to "give in writing the reasons for his dissent". (Const 1963, art 6, § 6.) I do so regularly with detail, having found it progressively necessary in recent years; most certainly in this about-to-end year 1971. However, and since advent of the present constitution, we have construed and applied the quoted language as authorizing for cases as at bar a summary negative statement of reason. That is what Division 2 has done here (Court of Appeals order of June 4, 1970, the language of which is):

"It is ordered that the application for delayed appeal be and the same is hereby denied for lack of merit in the grounds presented;".

Now that the instant appeal has been submitted and the trifling nature thereof fully exposed, I propose this time to eliminate mercifully from our printed pages still another lengthy exercise in futility. When a clear majority literally pants to vote a new round of hearings and appeals for a criminal prosecution originating more than 12 years ago,^[*] thus setting up another precedent for more like-delayed frivolity, it would be quite bootless to write for this appeal any statement of reasons over and above that which Court of Appeals Judges QUINN, BRONSON, and McGREGOR have recorded.

I vote to affirm and therefore dissent.

T.E. BRENNAN, J., concurred with BLACK, J.

NOTES

[1] If this case should be retried, then the second issue raised by the people in their appellate brief, namely was the probation revocation taken within the five-year statutory period would become pertinent. The specific issue is to what extent is the statute tolled since the revocation action did not begin until more than eight years after the original sentence and probation. See Browning v Michigan Department of Corrections, 385 Mich. 179 (1971). As indicated it is believed the above issues are dispositive of this case. Pertinent facts are missing to decide this issue. However, total probation and prison time seem to exceed five years.

[2] In Taylor then Chief Justice T.E. BRENNAN discusses conditions under which direct appeal to the appeal court and commencement by motion in the trial court might be proper.

[3] The course of review which the defendant followed in In re Valle, 364 Mich. 471 (1961) is not altogether clear. He filed a petition for habeas corpus with this Court, with an ancillary writ of certiorari to the trial court.

[4] See Edwards, Henning, Clark and Ferguson, supra.

[5] One of these cases, Calhoun v Macomb County Judge, 15 Mich. App. 416 (1968) was referred to in a letter from the Assistant Clerk of the Court of Appeals concerning the instant case: "May 29, 1969 "Mr. Carl Levin Defender's Office 600 Penobscot Building Detroit, Michigan 48226 "Re: People vs. Robert Taylor Recorder's Court # A101483 "Dear Mr. Levin:

We are returning herewith a claim of appeal which you have submitted in the above cause. We advise you that there is presently pending in this Court an application for delayed appeal which was filed by the defendant in pro per. In addition, we advise you that under the decision of this Court in Memory Calhoun v. Macomb County Judges, [sic] #4400, a judgment of probation violation is not appealable as a matter of right.

"Yours truly, "James O. Devereaux, Jr. "cc: Samuel Torina JOD/jl"

[6] Court Rule No 35A § 2 (1945).

[7] Id.

[8] Id.

[9] The necessity of such examination of the defendant by the trial judge, is evident from the surprises it often turns up. See, for instance, the record of a guilty plea proceeding in another case recently decided by this Court:

"The Court: All right.

"Let me see if you are really guilty of anything. Before I can accept your plea, I have to know whether you are guilty of anything, so tell me where were you on this day and where did you actually take a 1965 Volkswagon?

"The Defendant: Yes. Well, your Honor, it was about four o'clock in the morning and it was on Edwards, close to Home Avenue.

"The Court: That's in the City of Flint?

"The Defendant: Yes.

"The Court: All right. Go ahead.

"The Defendant: And I went and I started it and I drove it away.

"The Court: Let me ask you, was the key in the car?

"The Defendant: No, your Honor.

"The Court: How did you get it started?

"The Defendant: With a different ignition.

"The Court: What do you mean with a different ignition? How could you — You mean you took one motor out and put another motor in?

"The Defendant: No, the ignition switch on the switch —

"The Court: Well, how did you do that?

"The Defendant: Well, I had a — I have a Volkswagon, and I lifted up the hood and put the three prongs on it and started it.

"The Court: Oh, you own a Volkswagon yourself?

"The Defendant: Yes, your Honor.

"The Court: I see. And you drove this around and then what did you do?

"The Defendant: I changed license plates on it, and I towed —

"The Court: Towed? T-o-w — the car away?

"The Defendant: Towed mine out into Clio to a farm.

"The Court: In other words you were switching automobiles?

"The Defendant: Yes, your Honor.

"The Court: Actually, you are really guilty of the higher offense, but the Court will accept your plea to the lesser offense. Now, young man, has this been the first time you have ever been in court as an adult, in Circuit Court?" Genesee Prosecutor v Genesee Circuit Judge, 386 Mich. 672 (1972).

[10] It is not sufficient that such facts appear on the record of the preliminary examination. See People v Zaleski, 375 Mich. 71, 81 (1965) and People v Rufus Williams, 386 Mich. 277, 284-285 (1971).

[11] In passing, this Court is not satisfied that the matter of whether the defendant waived his right to jury trial is worth considering on the merits.

[*] For enough of the details of defendant's adventures and misadventures with the law, see the majority opinion, ante at 213.