People v. Armstrong , 390 Mich. 693 ( 1973 )

390 Mich. 693 (1973) 213 N.W.2d 190

PEOPLE
v.
ARMSTRONG

No. 13 October Term 1973, Docket No. 54,265.

Supreme Court of Michigan.

Decided December 18, 1973.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert F. Leonard, Prosecuting Attorney, and Donald A. Kuebler, Chief Assistant Prosecuting Attorney, for the people.

State Appellate Defender Office (by Joseph B. Szeremet), for defendant on appeal.

LEVIN, J.

On the third day of trial James Willie Armstrong pled guilty to the charge that he murdered Ann Kelush in the perpetration of an armed robbery.

A statute provides that if a person shall be convicted of murder "by confession, the court shall proceed by examination of witnesses to determine the degree of the crime ["whether it be murder of the first or second degree"], and shall render judgment accordingly". MCLA 750.318; MSA 28.550.

On the next day, the judge announced that the evidence established that Armstrong was guilty of first-degree murder and, accordingly, that was his determination of the degree of guilt.

Armstrong now asserts that his plea and resultant conviction should be set aside because the judge failed:

(a) to inform him of the nature of an "open charge" of murder;

(b) to inform him that if he was convicted of first-degree murder he would be ineligible for parole;

(c) to establish a factual basis for the plea by bench questioning;

(d) to conduct a hearing to determine the degree of murder.

I

Armstrong asserts that an "open charge" of murder is inherently uncertain. Unless carefully explained by the judge, a defendant will naturally be "misled" into believing that he will be convicted of an offense lesser than first-degree murder, when in fact that hope is illusory. Specifically, Armstrong asserts that he should have been advised that if the evidence were sufficient to establish first-degree murder, the judge must find that the murder was of the first degree because he does not enjoy the discretion to convict a person, who in fact is guilty of the greater offense, of only the lesser offense.

Armstrong further asserts that, although the judge did inform him that if it was determined he was guilty of first-degree murder a sentence of life imprisonment must be imposed, the judge erred in failing to inform him that he would be ineligible for parole if the degree of guilt was determined to be first degree. Armstrong relies on the construction of FR Crim P, 11 adopted by a majority of the United States Courts of Appeals that ineligibility for parole constitutes a "consequence" of a guilty plea and, therefore, a failure to furnish such information in a case where the defendant would be ineligible for parole vitiates the plea.^[1]

Armstrong's guilty plea was accepted in 1963. At the time, neither the court rule nor case law required a judge to explain to a defendant offering to plead guilty to an open charge of murder the nature of the judge's responsibility at a degree hearing. Nor, this Court subsequently ruled, was there even a requirement that the defendant be advised of the maximum and of any minimum sentence that might or must be imposed (People v Dunn, 380 Mich. 693; 158 NW2d 404 [1968]), let alone that, if convicted of first-degree murder, he would not be eligible for parole.

In that setting, we could not properly say that the trial judge in this case, who did advise the defendant that if he were found guilty of first-degree murder a life sentence must be imposed, erred reversibly in failing to advise the defendant more fully. The extensive guilty plea jurisprudence of this state shows that the word "consequence", in GCR 1963, 785.3(2), did not acquire, before the recent revision of that rule, the meaning given that word in other jurisdictions.^[2]

After much debate among Bench and Bar, this Court recently revised the guilty plea procedure to require more extensive advice than under former practice to guilty pleading defendants. See GCR 1963, 785.3-785.11. The revised rule does not require advice concerning the nature of the judge's responsibility in a degree hearing or that a person convicted of first-degree murder is not eligible for parole. It would be incongruous to hold that a defendant pleading guilty in 1963 was entitled to advice that need not be given a defendant pleading guilty today.

II

In accepting Armstrong's plea, the judge did not, in accordance with People v Barrows, 358 Mich. 267, 272; 99 NW2d 347 (1959), establish by "direct questioning" of the defendant "the crime and the participation therein of the person pleading guilty".

Armstrong's plea was offered after three days of trial at which witnesses testified that Armstrong had participated in the armed robbery and that he had held a revolver to Mrs. Kelush's head and killed her.

Armstrong relies on a footnote in People v Taylor, 387 Mich. 209, 225, n 10; 195 NW2d 856 (1972), which states that it is not sufficient that the requisite facts appear on the record of a preliminary examination. There is, however, considerable difference between the record of a preliminary examination and a trial record. In many cases a preliminary examination record will not be typed before the plea is taken and even if it is typed the judge may not read it.

We are of the opinion that where the judge has heard testimony at trial implicating the defendant he is in a position to make a "reasonable ascertainment of the truth of the plea". People v Barrows, supra, p 272.

While the amended court rule provides that the court shall not accept a plea of guilty "until it is satisfied that a crime was committed and, through personal interrogation of the defendant, that defendant participated therein"^[3] the rule speaks to the typical situation where the defendant pleads guilty without a trial.

The new rule contemplates that the judge may consider evidence other than the defendant's own statements; the immediately following subsection provides that "[i]f defendant's description of his actions and any otherwise admissible evidence presented to the court on the record during the plea taking proceedings would not substantially support a finding that defendant is in fact guilty of the charged offense or the offense to which he is pleading, the plea shall be rejected by the court."^[4] (Emphasis supplied.)

The testimony of three days of trial provides "otherwise admissible evidence" substantially supporting a finding that the defendant was in fact guilty of the charged offense. Although this testimony was not a part of the record made "during" the plea taking proceeding, that limitation is inapplicable to a plea offered during a trial. The limitation is directed to the typical situation, a plea offered at a summary hearing, and is designed to preclude reliance on evidence the judge is not likely to have before him when he decides whether to accept the plea.

In establishing a factual basis, the use of trial testimony as an alternative to direct questioning of the defendant, does not entitle the defendant to a new trial. We cannot properly apply to a 1963 plea a standard more stringent than the standard presently in force.

III

The defendant's final claim, that the judge did not conduct a degree hearing, is refuted by the record.

After the defendant's plea of guilty was offered the judge said: "I will accept your plea of guilty to the charge but will not make a determination at this time as to the degree of that charge, being compelled to hold a hearing under the laws of the State of Michigan to determine and verify the validity of the charge made against you." The judge added that "this hearing in this cause will be continued as the hearing on the plea". It was agreed by the lawyers for the people and the defendant "that all the testimony that has been taken so far may be construed and entered as the testimony as bearing on the degree within the power of the law as to first-degree murder".

The proceedings then continued. Five additional witnesses were sworn and the testimony covers 100 pages of transcript.

Affirmed.

T.M. KAVANAGH, C.J., and T.E. BRENNAN, T.G. KAVANAGH, SWAINSON, WILLIAMS, and M.S. COLEMAN, JJ., concurred with LEVIN, J.

NOTES

[1] See Moody v United States, 469 F2d 705, 707, n 5 (CA 8, 1972).

Rule 11 requires that the defendant have an understanding of both "the nature of the charge and the consequences of the plea".

[2] The word "consequence" is not used in the present rule.

[3] GCR 1963, 785.7(3)(b).

[4] GCR 1963, 785.7(3)(c).