People v. Totty , 10 Mich. App. 462 ( 1973 )

10 Mich. App. 462 (1968) 157 N.W.2d 330

PEOPLE
v.
TOTTY.
SAME
v.
COOPER.

Docket No. 2,073.

Michigan Court of Appeals.

Decided March 29, 1968.

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

George L. McCargar, Jr., for defendants.

NEWBLATT, J.

Defendants pleaded guilty to robbery armed;^[1] the pleas were accepted and defendants were both sentenced. The robbery is charged as having taken place on March 19, 1965. At the time of the arraignments, the reading of the information was waived. Both defendants were represented by counsel who in response to questions by the arraigning judge indicated that they had advised their respective clients of their rights. The judge also asked each defendant whether he was present at the magistrate's preliminary examination and both defendants acknowledged they had been present and they had heard the testimony.

As to defendant Totty, the judge failed to inform him of the nature of the accusation.

As to defendant Cooper, the judge failed to inform him of the nature of the accusation, and unlike his procedure with defendant Totty, the judge also failed to examine defendant Cooper to ascertain that the plea was freely, understandingly, and voluntarily made, without undue influence, compulsion, or duress, and without promise of leniency.

Certain principles of law are now so well established by the decisions of this Court, as well as of the Supreme Court, that extended discussion would be neither instructive nor beneficial to bench and bar.

GCR 1963, 785.3(2), dealing with acceptance of pleas of guilty, requires that the court ascertain more about the plea than that the defendant agrees that it is expedient so to plead. "The rule is designed to require reasonable ascertainment of the truth of the plea." People v. Barrows (1959), 358 Mich. 267, 272. A waiver of the reading of the information neither supplies the deficiency nor cures the error of failing to inform the accused of the nature of the accusation. People v. Johnson (1966), 2 Mich. App. 182. The requirements of GCR 1963, 785.3 must be observed. People v. Demers (1966), 2 Mich. App. 238. It is an abuse of the judge's discretion to deny a motion to withdraw a plea of guilty and to deny a new trial if the mandatory requirements of the rule were not observed. People v. Wilkins, 3 Mich. App. 56.

Plaintiff claims that the interrogation called for by the rule with reference to defendant Cooper was not necessary in view of Cooper's presence in court during the extended interrogation of Totty. Plaintiff claims that if Cooper's "plea was the product of any threat or promise, he certainly had the opportunity to make the court aware of this". This Court has held phat presence of defendant in court and his hearing other unrelated arraignments and pleas, and hearing the judge comply with the rule as to other defendants and inform them of their constitutional rights does not satisfy the requirements of the rule. "The court rule states ``in every prosecution,' and the defendant was not required to listen to the arraignment of another defendant in an unrelated case^[2] to be informed of his constitutional rights. It was the duty of the trial judge to inform him in his individual case of his right to court-appointed counsel if he could not afford to retain his own attorney." People v. Richardson (1966), 4 Mich. App. 586, 588.

The mandatory requirements of the rule not having been complied with, the cause is reversed and remanded for new trial as to both appellants.

McGREGOR, P.J., concurred with NEWBLATT, J.

BURNS, J. (dissenting in part).

I must dissent. GCR 1963, 785.3 states:

"Arraignment and Sentencing. In every prosecution wherein the accused is charged with a felony, the trial court shall conform to the following practice:

"(1) Arraignment. If the accused is not represented by counsel upon arraignment, before he is required to plead, the court shall advise the accused that he is entitled to a trial by jury and to have counsel, and that in case he is financially unable to provide counsel the court will, if accused so requests, appoint counsel for him. If the accused states he will procure counsel or requests that counsel be appointed, a reasonable time thereafter shall be allowed for counsel to consult with the accused before his plea shall be taken.

"(2) Imposing Sentence. 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; and regardless of whether he is represented by counsel, the court shall examine the accused, not necessarily under oath, and as a condition of accepting the plea of guilty and imposing sentence shall ascertain 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." (Emphasis supplied.)

The rule states the procedure the trial court must follow when the accused is not represented by counsel. It requires the judge to tell the accused that he is entitled to a trial by jury and to have counsel. It also mandates the court to inform the accused of the nature of the accusation and the consequence of his plea. All of these duties follow the phrase, "not represented by counsel," and precede the phrase, "regardless of whether he is represented by counsel." The only duty imposed upon the court when the accused is represented by counsel is to examine the defendant to ascertain if his plea is freely, understandingly and voluntarily made.

The phraseology of this rule reflects the intention of the Supreme Court to leave the traditional function of advising an accused with his counsel, who, as an officer of the court,^[*] should be held to impart his knowledge of the law to his client.

Both of the defendants in the present case were represented by counsel at the arraignment. Under the above interpretation the circuit judge complied with the rule when arraigning the defendant Totty but failed to comply with the rule when arraigning the defendant Cooper. Therefore, as to defendant Totty, I would affirm the trial court, but as to the defendant Cooper, I would reverse the cause and remand for a new trial.

NOTES

[1] CLS 1961, § 750.529 (Stat Ann 1965 Cum Supp § 28.797).

[2] The italicized language in the above quotation is not deemed necessary to the statement made in that case, nor does it imply that in a related case, a defendant would be required to listen.

[*] CLS 1961, § 600.901 (Stat Ann 1962 Rev § 27A.901).