People v. Hobdy , 380 Mich. 686 ( 1968 )

O’Haba, J.

This is an appeal on leave granted from an order of the Court of Appeals denying an application for rehearing sought by the people. The opinion and order upon which rehearing was asked vacated defendant appellee’s plea of guilty and remanded the case to the circuit court for trial.¹

The plea of guilty was entered July 7, 1961. The Court of Appeals based its opinion solely upon Court Rule No 35A (1945), now GCR 1963, 785.3, as interpreted by In re Palmer (1963), 371 Mich 656. The Court said:

“The Supreme Court of Michigan interpreted the above court rule in the case of In re Palmer (1963), 371 Mich 656, and on page 666 stated:

“ ‘The import of Gideon is that any felony prosecution in which an accused is not represented by counsel, and does not expressly waive benefit of counsel, does not fulfill the requirements of a “fair trial” and thus is a denial of due process.’ (Emphasis partially supplied.)

“The defendant did not expressly waive his right to counsel. The defendant’s plea of guilty is hereby set aside and the case is remanded for trial.” (Emphasis by Court of Appeals.)

Since the Court of Appeals based its decision squarely on the issue of express waiver, we address ourselves only to that issue.

In re Palmer, supra, is not precedential authority for anything. It stands only for the vacation of that appellant’s plea of guilty in that case.² The opinion was signed unreservedly only by Justices T. M. KavaNagh and Souris. Five Justices concurred only in the result. I wrote separately on the then unsettled question of the retroactivity of certain Federal Supreme Court decisions.³

The statement appearing in Palmer, supra, p 666, that Gideon v. Wainwright, supra, requires that there he an express waiver of counsel in order to comport with due process is not the majority voice of this Court. Nor am I able to find that express waiver of counsel is required by any United States Supreme Court decision. The Court of Appeals was in error in holding that GCR 1963, 785.3 as interpreted by Palmer or Gideon required such an express waiver.

It is not contended by defendant that the circuit judge did not advise him of his right to retained counsel or to counsel at public expense if he were indigent. His only complaint is that he did not expressly waive the right. Outside of the non-precedential Palmer, we find no reference to an express waiver of counsel in any Michigan or Federal case cited or discussed.

The order of' the Court of Appeals vacating the plea of guilty is reversed. The judgment of conviction entered on defendant’s plea of guilty in the circuit court is affirmed.

Dethmers, C. J., and Kelly, Black, and BreNNAN, JJ., concurred with O’ITara, J.

1 5 Mich App 275.

2 In Palmer the accused was never advised of his right to counsel, nor of his right to have counsel furnished at public expense if he were indigent. In that regard the constitutional error of the trial judge before whom Palmer was arraigned and subsequently sentenced duplicated that of each trial judge when Johnson (Johnson v. Zerbst [1938], 304 US 458 [58 S Ct 1019, 82 L ed 1461, 146 ALR 357]), Rice (Rice v. Olson [1945], 324 US 786 [65 S Ct 989, 89 L ed 1367], Carnley (Carnley v. Cochran [1962], 369 US 506 [82 S Ct 884, 8 L ed 2d 70]) and Gideon (Gideon v. Wainwright [1963], 372 US 335 [83 S Ct 792, 9 L ed 2d 799, 93 ALR2d 733]) were arraigned and convicted without the aid of counsel.

3 That Court has sinee taken differing positions with regard to the retroactivity or prospeetivity of its new decisions in criminal matters. The rationale of the difference is still unclear to me. See Linkletter v. Walker (1965), 381 US 618 (85 S Ct 1731, 14 L ed 2d 601); Johnson v. New Jersey (1966), 384 US 719 (86 S Ct 1772, 16 L ed 2d 882), and Tehan v. United States, ex rel. Shott (1966), 382 US 406 (86 S Ct 459, 15 L ed 2d 453).