People v. Bratton

46 Mich. App. 1 (1973) 207 N.W.2d 437

PEOPLE
v.
BRATTON

Docket No. 13739.

Michigan Court of Appeals.

Decided March 28, 1973.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Arthur N. Bishop, Assistant Prosecuting Attorney, for the people.

Norton Rosin, for defendant on appeal.

Before: HOLBROOK, P.J., and FITZGERALD and VAN VALKENBURG,^[*] JJ.

Leave to appeal denied, 389 Mich. 814.

HOLBROOK, P.J.

Defendant was charged on an information filed November 1, 1966, with forcible rape, sodomy, and gross indecency. He pled guilty January 11, 1968, to a lesser charge of assault with intent to rape. We have cause to discuss essentially two issues on defendant's appeal here.

First, defendant requests us to retroactively apply the holding of Boykin v Alabama, 395 U.S. 238; 89 S. Ct. 1709; 23 L. Ed. 2d 274 (1969), and set aside his guilty plea. While it is apparent from the record that defendant was not informed of his privilege against compulsory self-incrimination or of his right to confront his accusers, it should be emphatically clear by now that pre-Boykin guilty pleas are not to be reviewed against the standards enunciated in Boykin. People v Carlisle, 387 Mich. 269, 276 (1972); People v Duffield, 387 Mich. 300 (1972), footnote 17; People v Wickham, 41 Mich. App. 358 (1972); Winegar v Dept of Corrections, 41 Mich. App. 318 (1972).

Second, we are confronted with the question of whether or not the trial court in accepting defendant's guilty plea had first properly established the factual basis of that plea in such a way as to convince the court that the crime had in fact been committed by defendant. GCR 1963, 785.3(2); People v Taylor, 387 Mich. 209 (1972); People v Seifert, 17 Mich. App. 187 (1969). This issue was not briefed by either defendant's appellate counsel or the people because defendant was granted leave to appeal April 25, 1972, on only the Boykin issue, although defendant had raised this issue in a delayed motion for a new trial and in his application for leave to appeal. Leave was probably denied on the non-Boykin issue because of the presumed applicability of People v Donald T Moore, 21 Mich. App. 150 (1970). Moore held that the trial court's failure to require a defendant to establish the elements of the offense by his own testimony is not fatal to the acceptance of his plea of guilty if the complaining witness gave explicit testimony of defendant's actions at the preliminary examination and this testimony was noted at the plea taking and acknowledged to be true by the defendant. However, since Taylor, supra, Moore has not been good law. In Taylor the Michigan Supreme Court held, among other things, at 225, footnote 10:

"It is not sufficient that such facts appear on the record of the preliminary examination. See People v Zaleski, 375 Mich. 71, 81 (1965), and People v Rufus Williams, 386 Mich. 277, 284-285 (1971)."

This Taylor holding has been amply criticized in People v Schneff, 43 Mich. App. 413 (1972). However, as in Schneff, and People v D'Argis, 44 Mich. App. 186 (1972), we are bound to follow the rule enunciated by the Supreme Court in Taylor. Our review of the plea-taking record below shows that the factual basis of defendant's plea was established only by reference to the preliminary examination, and hence Taylor requires a vacating of the acceptance of defendant's guilty plea, and remand to determine a factual basis for acceptance of the guilty plea.

Affirmed, except as to remand.

All concurred.

NOTES

[*] Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.