People v. Warner , 17 Mich. App. 1 ( 1969 )

17 Mich. App. 1 (1969) 168 N.W.2d 656

PEOPLE
v.
WARNER

Docket No. 5,574.

Michigan Court of Appeals.

Decided April 21, 1969.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James T. Corden, Prosecuting Attorney, and Ronald J. Flanigan, Assistant Prosecuting Attorney, for the people.

Richard Eugene Warner, in propria persona.

BEFORE: LESINSKI, C.J., and T.M. BURNS and J.J. KELLEY,^[*] JJ.

PER CURIAM:

The defendant was charged on an information with breaking and entering in the night-time with intent to commit a felony, larceny.^[1] He was arraigned and stood mute as his appointed counsel waived a reading of the information. Subsequently, he came before the court again at which time his counsel notified the court that he wished to change his plea to guilty.

Although defendant asserts that there were sundry defects in his arraignment, his plea of guilty if properly accepted would waive any prior defects. People v. Hale (1969), 12 Mich App 657. The only question before this Court then is whether the trial court fulfilled its obligation under GCR 1963, 785.3(2) to determine whether the plea of guilty was "freely, understandingly and voluntarily made, without undue influence, compulsion, or duress, and without promise of leniency" before it accepted the defendant's plea, as it is bound to do by the rule. The duty of inquiry imposed upon the trial court by the rule is not met by determining that the defendant agrees that it is expedient to plead guilty (see People v. Barrows [1959], 358 Mich 267, 272) nor is it any less important when the defendant is represented by counsel, as here. The defendant asserts that he understood from his consultations with his attorney that he was pleading guilty to a crime with a maximum penalty of four years rather than to the crime for which he was sentenced, which has a maximum of 10 years. See CL 1948, § 750.360 (Stat Ann § 28.592); CL 1948, § 750.503 (Stat Ann § 28.771). From the record on appeal, we find no indication of an inquiry under the rule, and, therefore, we find the plea unacceptable. We remand to the trial court for an evidentiary hearing on the plea, in accordance with GCR 1963, 785.3(2). See People v. Byrd (1968), 12 Mich App 186. We direct the trial court's attention to the decision of this Court in People v. Earegood (1968), 12 Mich App 256, and to the concurring opinion of Judge LEVIN in People v. Byrd, supra, at p 194 where the subject of plea bargaining is covered in detail.

The appellee's reliance on the case of People v. Hobdy (1968), 380 Mich 686; People v. Dunn (1968), 380 Mich 693; People v. Stearns (1968), 380 Mich 704; and People v. Winegar (1968), 380 Mich 719, is misplaced. In each of those cases the trial judge made inquiry into whether the pleas were "freely, understandingly and voluntarily made"; here there was no such inquiry. Therefore, we find that the plea of guilty was not accepted in accordance with GCR 785.3(2) and that we must remand for hearings in conformance with that rule.

NOTES

[*] Circuit Judge, sitting on the Court of Appeals by assignment.

[1] CL 1948, § 750.110, as amended by PA 1964, No 133 (Stat Ann 1968 Cum Supp § 28.305), has a maximum penalty of 10 years.