People v. Taylor , 23 Mich. App. 595 ( 1970 )

23 Mich. App. 595 (1970) 179 N.W.2d 260

PEOPLE
v.
TAYLOR

Docket No. 8,002.

Michigan Court of Appeals.

Decided April 30, 1970.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William F. Delhey, Prosecuting Attorney, and Karl V. Fink, Assistant Prosecuting Attorney, for the people.

Fred S. Steingold, for defendant on appeal.

Before: McGREGOR, P.J., and DANHOF and LARNARD,^[*] JJ.

PER CURIAM.

On April 11, 1969, the defendant, while represented by counsel, pled guilty to the charge of possession of marijuana, CLS 1961, § 335.153 (Stat Ann 1957 Rev § 18.1123). On June 4, 1969, he was sentenced to a term of two to ten years in prison.

Defendant appeals as a matter of right and is properly before this Court, MCLA 1970 Cum Supp § 600.308 and MCLA § 600.309 (Stat Ann 1970 Cum Supp §§ 27A.308, 27A.309).

Defendant contends that his case should be remanded for a trial because the court did not advise him of the following constitutional rights before accepting his plea of guilty:

(a) The privilege against compulsory self-incrimination;

(b) The right to trial by jury; and

(c) The right to confront one's accusers.

Michigan law does not require the trial judge to inform an accused who wishes to enter a plea of guilty of the aforementioned constitutional rights when he is represented by counsel. GCR 1963, 785.3 does require the judge to advise an accused charged with a felony who is not represented by counsel of his right to a trial by jury and his right to counsel. Defendant's reliance on People v. Dunn (1968), 380 Mich. 693, is misplaced as defendant in that case did not have counsel.

Defendant argues that the decision in Boykin v. Alabama (1969), 395 U.S. 238 (89 S. Ct. 1709, 23 L. Ed. 2d 274) does require the trial judge to advise an accused of the three cited constitutional rights before accepting a guilty plea even when the accused has counsel representing him. Without deciding whether Boykin does in fact state such a requirement, we hold that the decision in Boykin was not intended to have retroactive application. See McCarthy v. United States (1969), 394 U.S. 459 (89 S. Ct. 1166, 22 L. Ed. 2d 418); Halliday v. United States (1969), 394 U.S. 831 (89 S. Ct. 1498, 23 L. Ed. 2d 16) reh. den. 395 U.S. 971 (89 S. Ct. 2106, 23 L. Ed. 2d 761); Ernst v. State (1969), 43 Wis 2d 661 (170 NW2d 713). Since Boykin was decided June 2, 1969, and defendant's guilty plea was taken on April 11, 1969, the Boykin decision has no effect on this case.

The record discloses no miscarriage of justice as required by People v. Winegar (1968), 380 Mich. 719.

Affirmed.

NOTES

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