People v. Schwartz

6 Mich. App. 581 (1967) 149 N.W.2d 897

PEOPLE
v.
SCHWARTZ.

Docket No. 2,219.

Michigan Court of Appeals.

Decided April 25, 1967.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Gary C. Hoffman, Prosecuting Attorney, for the people.

Carl W. Bilyea, for defendant.

BURNS, J.

Defendant, without counsel, pleaded guilty to the charge of breaking and entering an unoccupied dwelling with intent to commit larceny, in violation of CL 1948, § 750.110, as amended by PA 1964, No 133 (Stat Ann 1965 Cum Supp § 28.305). Defendant was placed on probation for 2 years, but probation was subsequently revoked and defendant was sentenced to prison.

Defendant has appealed, claiming that the trial court erred:

1. By questioning the defendant as to the alleged crime before a plea of guilty was entered;

2. Because the presiding judge did not certify the transcript before it was filed with the county clerk;

3. By allowing an 18-year-old boy to waive the right to counsel without the benefit of friends, parents or counsel;

4. Because the trial court did not fully examine the defendant as to the facts of the alleged crime before accepting his plea of guilty.

The arraignment of Robert Schwartz commenced with the reading of the information which alleged, in part, that defendant had stolen "a quart of peaches" and some other items from a cabin in Missaukee county. Immediately thereafter the court asked the following questions:

"The Court: Were these home-canned peaches?

"Defendant: Yes.

"The Court: Are you Robert Schwartz?

"Defendant: Yes.

"The Court: How old are you, Bob?

"Defendant: Eighteen.

"The Court: Where do you live?

"Defendant: Kalamazoo.

"The Court: Are your parents here?

"Defendant: No.

"The Court: Do you have any relatives here?

"Defendant: No.

"The Court: Have you ever been in court before?

"Defendant: No. I've been in juvenile court.

"The Court: How far did you go in school?

"Defendant: I'd a had four more weeks to finish in the eleventh.

"The Court: I take it, then, that you read and write the English language?

"Defendant: Yes."

(Emphasis supplied.)

The arraignment continued, defendant pleaded guilty and the plea was accepted.

Defendant argues that it was a violation of due process^[*] for the trial court to ask the above emphasized questions before the court explained defendant's constitutional rights or received a plea of guilty as required by GCR 1963, 785.3. To quote from defendant's brief:

"Appellant contends that the questioning of defendant by the court in regard to the peaches and defendant's prior appearance before a court, results in requiring the defendant to plead to the charge by indirect means, where it is not permitted by direct means."

In order to uphold defendant's position we would have to conclude that defendant pleaded guilty, or a plea of guilty was elicited by the judge because of the "peach" remark and the conversation concerning prior court appearance. This we cannot do. The arraigning judge did not, in the slightest degree, try to stretch defendant's answers into a binding plea. The fact that defendant knew that the quart of peaches was home-canned might possibly be considered by a fact finder as an admission of guilt if the statement was made or related during the course of a trial, but it certainly cannot be (and was not in the instant case) interpreted as such when made during arraignment proceedings.

Next, defendant contends that the transcript of the arraignment is not a competent record because the trial court failed to certify it when it was filed with the county clerk. However, the circuit judge signed the following certification subsequent to the sentence proceedings held January 21, 1966:

"I, William R. Peterson, circuit judge in and for the 28th judicial circuit of Michigan, do hereby certify that the foregoing is a true and accurate record of the proceedings had at the time of arraignment and/or sentence in the above entitled cause, which I have caused to be prepared by the official court reporter in accordance with GCR 1963, 785.3."

GCR 1963, 785.3(3) requires judicial certification of the stenographic record of all arraignment and sentence proceedings, but this court rule does not specify the time for certification. Therefore, we hold that the judge's certification which was filed after the sentence was proper and timely.

Defendant's third claim on appeal is that an 18-year-old "boy" without benefit of friends, parents, or counsel, is not capable of intelligently waiving his right to counsel provided by United States Const, Am 6 and 14, and Mich Const 1963, art 1, § 20. We have considered similar arguments in People v. Shaffer (1966), 4 Mich. App. 192, and People v. Wilson (1966), 5 Mich. App. 428. Defendant's claim is without merit.

In conclusion, defendant contends that the circuit judge should have conducted a "more painstaking" examination when: (1) he explained defendant's constitutional rights and the nature of the crime and its elements before accepting a plea of guilty and (2) he inquired into defendant's participation in the crime after receiving the plea. We have carefully reviewed the arraignment transcript and find that the judge displayed due regard and respect to defendant's age, alleged lack of experience and constitutional rights. Furthermore, the judge's inquiry into the facts of the crime was sufficiently comprehensive to warrant acceptance of defendant's plea of guilty.

Affirmed.

FITZGERALD, P.J., and QUINN, J., concurred.

NOTES

[*] US Const, Am 14; Mich Const 1963, art 1, § 17.