People v. Lang , 9 Mich. App. 635 ( 1968 )

9 Mich. App. 635 (1968) 157 N.W.2d 800

PEOPLE
v.
LANG.

Docket No. 3,462.

Michigan Court of Appeals.

Decided March 20, 1968.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and James K. Miller, Prosecuting Attorney, for the people.

William J. Heyns, for defendant.

HOLBROOK, J.

Defendant was charged in an information with breaking and entering on December 12, 1966, a store building with intent to commit the crime of larceny therein.^[1] On December 16, 1966, at arraignment, the information was read to defendant and he was informed of the nature of the accusation and that the felony charged was punishable up to 10 years in prison. Defendant pleaded guilty and was examined by the court in order to establish the essential elements of the crime charged, defendant's participation therein and the voluntariness of his plea. On January 27, 1967, defendant was sentenced to prison for a term of 2 to 10 years.

Defendant appeals from the trial court's denial of his motion to set aside his plea of guilty on the ground that the court failed to comply with GCR 1963, 785.3(2). Defendant seeks to have his plea of guilty set aside and the sentence vacated on the asserted basis that GCR 1963, 785.3(2) requires a trial court to inform the defendant of the nature of the accusation and the consequence of his plea after, rather than before, the guilty plea is made and before sentence is imposed.

Defendant cites People v. Goldfarb (1967), 6 Mich. App. 7, as applicable to the instant case. The trial judge properly pointed out in his opinion denying defendant's motion to set aside his plea of guilty that the present case could be distinguished from Goldfarb:

"There is nothing in the record which would indicate that he [Goldfarb] understood the charge. The information was not read to him, and he was only asked if he wished to plead guilty to possession of burglary tools and he said he did. He [Goldfarb] was then questioned as to the voluntariness of this and the Court found that this trial judge had failed to make sure that he [Goldfarb] understood the charge and that the [trial] court made no investigation as to the accuracy. On p 14 of that opinion the Court concluded:

"``In our case the defendant was never asked whether he understood the charge and the court made no investigation as to the accuracy.' * * *

"In the instant case it is clear that he was advised of the charge and the maximum penalties, his right to counsel, and he was then questioned in detail * * * as to the events and who he was with and how he did go into the store building and what his purpose was. These are all clearly set forth in the arraignment and I am of opinion that the Goldfarb Case can be distinguished on that particular phase."

We agree with the trial court that Goldfarb, supra, is not applicable herein.

The relevant portion of GCR 1963, 785.3(2) provides as follows:

"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."

In the case of People v. Wurtz (1965), 1 Mich. App. 190, the defendant was advised on arraignment of the nature of the accusation against him before his plea of guilty was entered. We stated therein, at p 198, as follows:

"The nature of the charge was explained to defendant at the beginning of the proceedings. This Court concludes that the trial judge substantially satisfied the requirements of Court Rule No. 35A (1945)."^[2]

The Wurtz Case, supra, is directly in point and is controlling in the instant case. Defendant was afforded opportunity to consider these matters of which he was informed before, as well as after, he entered his plea. We conclude the trial court substantially complied with the requirements of the court rule.

We are not convinced that the asserted variation from the procedure arguably required under strict construction of the court rule has resulted in less than substantial justice. GCR 1963, 529.1.

Affirmed.

LESINSKI, C.J., and BURNS, J., concurred.

NOTES

[1] CL 1948, § 750.110, as amended by PA 1964, No 133 (Stat Ann 1968 Cum Supp § 28.305).

[2] The wording in the old court rule 35A (1945) is identical with the wording of the present court rule, GCR 1963, 785.3(2).