People v. McMiller

T. G. Kavanagh, J.

We granted leave in this case and the case of People v Wolff to consider the implications of the setting aside of a plea of guilty to a lesser offense and putting the defendant on trial for a higher offense.

The facts are not complicated.

On November 14, 1968, defendant was charged with the murder of John "Junior” Watson. On January 13, 1969, defendant pled guilty to the lesser offense of manslaughter. He was sentenced to serve a term of 10-15 years in prison on January 28, 1969.

Defendant appealed his conviction, and the Court of Appeals reversed.¹ Thereupon, defendant was charged, tried, and convicted of murder. On February 27, 1970, defendant was sentenced to 15-20 years in prison. The Court of Appeals affirmed,² basing its decision on that Court’s holding in People v Harper, 32 Mich App 73 (1971) and quoting from one of the opinions in that case which it mistakenly characterized as the majority opinion.

That opinion was contrary to and critical of the holding in Mullreed v Kropp, 425 F2d 1095 (CA 6, 1970).

The Court of Appeals’ reliance on Harper as authority appears questionable in light of our grant of leave in that case, although the appeal to our Court was later dismissed on stipulation of the parties.

On April 24, 1973 in Rivers v Lucas, 477 F2d 199 (CA 6, 1973) the United States Court of Appeals for the Sixth Circuit reiterated its holding in Mullreed, supra. The Court said at p 202:

"We affirm that there is implicit in a court’s acceptance of a plea to an included lesser offense a determination that the right to prosecute the defendant on the more serious offense with which he is charged has been relinquished. The effect of the entire transaction, for double jeopardy purposes, is the equivalent of a jury’s refusal to convict on the more serious charge. Only if this is true may a defendant seek review of his conviction without being faced with the 'incredible dilemma’ of choosing between a legal right of appeal and the possibility that success will revive the hazard of conviction of a charge which the prosecution has willingly abandoned in exchange for his plea. Mullreed v Kropp, supra, at 1102. The continuation principle of jeopardy makes it possible for appellee Rivers to be tried again for the same offense of which he was convicted by his guilty plea (manslaughter), but his successful appeal did not open the way for him to be once agáin subjected, to the risk of prosecution for murder.”

While we are in total agreement with the result reached in Rivers and Mullreed, we are in respectful disagreement with the stated reason therefor.

The doctrine of double jeopardy has proper application where the people attempt to retry a defendant for the same offense.

The doctrine of implied acquittal by a jury’s verdict convicting the defendant of a lesser included offense, in our view, is not properly applicable to a guilty plea conviction.

Green v United States, 355 US 184; 78 S Ct 221; 2 L Ed 2d 199 (1957) explains the theory of "implied acquittal” on a jury’s verdict. The Court said (p 190):

"Green was in direct peril of being convicted and punished for first degree murder at his first trial. He was forced to run the gantlet once on that charge and the jury refused to convict him. When given the choice between finding him guilty of either first or second degree murder it chose the latter. In this situation the great majority of cases in this country have regarded the jury’s verdict as an implicit acquittal on the charge of first degree murder.”

But we find those considerations absent in this case.

McMiller was never in peril of being convicted and punished for murder. He has not "run the gantlet” on that charge.

Unlike a jury trial, a choice was not offered to the independent fact finder to find him guilty of murder, first or second, or manslaughter. It is this "choice” of the fact finder that provides the basis for the implication of acquittal. It is the exposure to it that puts one in "jeopardy”.

A trial is an adversary procedure. Taking a plea of guilty is not an adversary procedure.

The result is the same — conviction, and so long as that conviction stands, the effect is identical. A conviction can be set aside only for an error in the procedure whereby it was effected. Logic would say that a defective procedure is a nullity, and hence would dictate that we start all over with a clean slate. But we do not do so in all cases.

As we have seen, for policy reasons we forbid adversary procedure to expose a person to conviction for a higher offense when the independent fact finder has chosen to find him guilty of a lesser offense. We express this policy in terms of "double jeopardy” although strictly speaking this is an extension of the doctrine of autrefois acquit.

Among the considerations in formulating a policy regarding prosecutions following the successful appeal of a plea-based conviction, there are two we find overriding which impel us to our decision:

Allowing trial on a higher charge following reversal of a plea-based conviction of a lesser offense would (1) discourage exercise of the defendant’s right to appeal a conviction claimed to be based on an improperly accepted plea, and (2) tend to insulate from appellate scrutiny non-compliance with the guilty plea procedure established by the statute and the court rule.

We, the Bench and Bar of Michigan, have invested untold hours of effort in an attempt to devise a rule for the taking of guilty pleas which will fairly and finally dispose of over 75% of our criminal cases. In the latest amendment to our court rule dealing with this subject³ we have detailed certain steps necessary to the proper taking of a guilty plea and provided that failure to follow the rule will constitute reversible error. We intend thereby to assure the corollary that observance of the rule will result in unassailable conviction.

We recognize that a prosecutor’s willingness to allow an accused person to plead to a lesser offense is generally predicated on the assumption that the accused will, upon acceptance of a plea of guilty, stand convicted and will be sentenced for the lesser offense. We also recognize that the rule we adopt means that a successful appeal from a plea-based conviction for a lesser offense defeats that legitimate expectation, deprives the prosecutor of leverage he otherwise would have in further plea bargaining upon reprosecution, may well, therefore, burden the prosecutor with the need to prove his case at a trial and at the same time limits the people to a conviction less than the proofs may justify.

We balance these considerations against the danger that reprosecuting on higher charges those who successfully appeal from plea-based convictions and imposition of sentence based on the higher charge, will cause convicted persons to forego legitimate appeals and thereby encourage a return to practices which the carefully worked out guilty-plea procedures are designed to obviate.

The prescribed procedure for taking a guilty plea can readily be observed. Compliance in every case with the prescribed procedure is, we are convinced, essential to the integrity of the plea-taking process. We are also convinced that a rule limiting reprosecution to the lesser offense will tend to reduce the number of meritorious appeals —a successful appeal from a guilty-plea-based conviction is likely to become a rarity. Thereby — because they are without merit — appeals from guilty pleas will properly be discouraged.

As between placing a premium on compliance with the prescribed guilty-plea procedure in the literally tens of thousands of cases a year where pleas are offered, accepted and sentences imposed, and limiting the scope of reprosecution in the relatively few — particularly if we adopt this rule— cases where appeals are likely to be successful, we are convinced that the administration of justice will be better served by the choice we have made.

By agreeing to a plea to a lesser offense the prosecutor thereby vouches that the ends of justice will be served by accepting a plea of guilty to that offense. We perceive, therefore, even in the relatively few cases where defendants will succeed on appeal in setting aside a guilty-plea-based conviction, no erosion of law enforcement in the rule we adopt.

A prosecutor can protect himself against being forced to try a defendant on a lesser offense by calling the attention of the judge, before he accepts a plea of guilty, to any failure to comply with the prescribed procedure for taking such a plea.

For these reasons we hold that upon the acceptance of a plea of guilty, as a matter of policy, the state may not thereafter charge a higher offense arising out of the same transaction.

If the prescribed guilty plea procedure is observed in taking the plea, the conviction will stand. If the procedure is not observed, the conviction will be set aside and the defendant ordered tried on the charge to which the plea was offered.

The jury in this case, having found the defendant guilty of murder, has necessarily found the elements establishing his guilt of the lesser offense of manslaughter.⁴ For the reasons set forth herein, the conviction of murder is set aside, the judgment of conviction is amended to show that the defendant is convicted of manslaughter, and the cause is remanded for resentencing on the manslaughter conviction.

T. M. Kavanagh, C. J., and Swainson and Williams, JJ., concurred with T. G. Kavanagh, J.

1 20 Mich App 309 (1969).

2 38 Mich App 99 (1972).

3 GCR 1963, 785.1 et seq., eff 6/1/73.

4 People v Morrin, 31 Mich App 301 (1971); Austin v United States, 127 US App DC 180; 382 F2d 129 (1967).