People v. Johnson

25 Mich. App. 258 (1970) 181 N.W.2d 425

PEOPLE
v.
SYLVESTER JOHNSON

Docket No. 5,739.

Michigan Court of Appeals.

Decided July 27, 1970. Leave to appeal denied October 12, 1970.

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

Arthur J. Tarnow (Defenders' Office — Legal Aid and Defender Association of Detroit), for defendant on appeal.

Before: McGREGOR, P.J., and J.H. GILLIS and O'HARA,^[*] JJ.

Leave to appeal denied October 12, 1970. 384 Mich. 763.

J.H. GILLIS, J.

Defendant Sylvester Johnson, together with two others, was charged with armed robbery, MCLA § 750.529 (Stat Ann 1970 Cum Supp § 28.797), conviction of which is punishable by imprisonment for life or for any term of years. On February 14, 1968, he was convicted upon his guilty plea of the crime of larceny from the person, MCLA § 750.357 (Stat Ann 1954 Rev § 28.589). Defendant was sentenced to serve a term of from nine to ten years in prison. At both the plea and sentence proceedings defendant was represented by assigned counsel. Upon defendant's petition, the court appointed present counsel for appellate review. A post-conviction motion was presented to the trial court to set aside the plea and for a new trial which was denied on January 30, 1969. Defendant appeals, alleging as error the denial of his motion to vacate the plea.

Broadly stated, the question presented is whether the trial court abused its discretion in refusing to allow defendant to withdraw his plea. When first made after conviction and sentence, a motion to withdraw a guilty plea addresses itself to the discretion of the trial court, People v. Vasquez (1942), 303 Mich. 340, and must be based upon a showing of a miscarriage of justice, People v. Collins (1968), 380 Mich. 131; People v. Winegar (1968), 380 Mich. 719. It is defendant's position that his motion was predicated upon such a miscarriage for the reason that a conviction of larceny from the person was not supported by the examination of defendant taken by trial court when it accepted defendant's plea.

GCR 1963, 785.3(2), requires that if the accused pleads guilty, the court "shall inform the accused of the nature of the accusation and the consequence of his plea." Defendant does not contend that the trial court failed to meet these requirements; nor could he in this case. The transcript of the plea proceedings clearly indicates that defendant was informed of the charge against him^[1] and the consequence of his plea.^[2] Nor does defendant allege that his plea was involuntary.

GCR 1963, 785.3(2) also requires that before accepting a plea of guilty the trial judge must examine the accused for the purpose of establishing the crime and defendant's participation in its commission. People v. Barrows (1959), 358 Mich. 267; see also MCLA § 768.35 (Stat Ann 1954 Rev § 28.1058). What is required is "reasonable ascertainment of the truth of the plea." People v. Barrows, supra, 272. As this Court noted in People v. Stewart (1968), 10 Mich. App. 553, 555, 556:

"[T]he trial judge * * * [must] investigate the circumstances of the offense ``and whenever said judge shall have reason to doubt the truth of such plea of guilty, it shall be his duty to vacate same, direct a plea of not guilty to be entered and order a trial of the issue thus formed.'" (Emphasis supplied.)

And, in recent years, we have reversed several convictions based upon guilty pleas where the required examination was not conducted. See People v. Perine (1967), 7 Mich. App. 292; People v. Richard E. Johnson (1967), 8 Mich. App. 204; People v. Stewart, supra; People v. Mason (1968), 13 Mich. App. 277; People v. Combs (1968), 15 Mich. App. 450; People v. Creger (1969), 16 Mich. App. 59; People v. Robert Lee Moore (1970), 21 Mich. App. 126; People v. Porchia (1970), 21 Mich. App. 222. Defendant contends that we should apply the teachings of such cases, particularly People v. Mason, supra, upon which he relies, to the facts of this case.

In Mason we concluded at p 280:

"The failure to have established facts showing that the defendant committed the crime to which he pled guilty makes it necessary to set aside the conviction."

Mason had been convicted upon his plea of breaking and entering in the nighttime. His testimony, however, negated an essential element of the crime. It was Mason's testimony that the entry occurred in the daytime — not at night. Likewise, in the present case defendant's testimony under tender of his plea indicates the absence of an essential element of the crime of larceny from a person. We quote the relevant portions of the colloquy between the trial judge and defendant Johnson:

"Q. All right. On Tuesday, October 10 of 1967 did you go to the address of 12317 Sendon, in the City of Detroit, Building 503, Unit 1392?

"A. I did.

"Q. Was it in the nighttime?

"A. Yes.

"Q. About what time?

"A. 1:30 or 2 o'clock.

"Q. Were you in an automobile or on foot?

"A. I was in an automobile.

"Q. Did you drive it? Were you driving it?

"A. No, I wasn't.

"Q. Were there two companions with you?

"A. There was.

"Q. Now, you went there to see a Mr. Romero?

"A. Yes.

"Q. Did you know him beforehand?

"A. No, I didn't.

"Q. Did you know anything about his sexual proclivities?

"A. No sir, he told me over the phone.

"Q. Called you on the phone?

"A. Yes.

"Q. And you understood when you went there that he was a homosexual?

"A. Yes.

"Q. All right. Now, you really weren't interested in him, were you?

"A. No, I wasn't.

"Q. You were interested in getting something?

"A. Yes.

"Q. Money or other things of value?

"A. Yes.

* * *

"Q. All right. And did he let you in?

"A. He did.

"Q. Were you armed?

"A. No. I wasn't.

"Q. Was anyone in your group armed?

"A. Yes.

* * *

"Q. Was he taken into a bathroom?

"A. He was in the bathroom, standing in the bathroom door.

"Q. And while he was in there, what did you do?

"A. Took things out of his apartment.

"Q. And these are numerated in this information, do you recall what they were?

"A. A stereo, some other merchandise in a box.

"Q. Movie camera, Polaroid Swinger camera, Kodak Instamatic camera. Does that ring a bell?

"A. Yes.

"Q. As I enumerate these?

"A. Yes." (Emphasis supplied.)

Johnson's testimony that Romero was in the bathroom when the property was taken establishes that the larceny in this case was not larceny "from the person," as we have construed the statutory offense. In People v. Gould (1968), 15 Mich. App. 83, 92, we held that the Michigan statute "calls for a taking from the person * * * i.e., it is an essential element of larceny from the person that the object be stolen from the person of another." What is required is that the property in question actually be taken from the person of another; a taking of property from the immediate presence of the owner is insufficient. As in Gould, the taking of Romero's property in this case was clearly criminal but it was not larceny from the person.

It is thus apparent, as noted by defendant in his brief, that there is no evidence of larceny from the person in the instant case. As a result, defendant suggests that it necessarily follows that his plea should not have been accepted and he is entitled to a new trial. For reasons about to be stated, we cannot agree.

The plea proceedings, quoted supra, indicate that the trial judge in this case did in fact "examine the accused," as required by GCR 1963, 785.3(2). The record here evinces a good-faith effort on the part of the trial court to investigate the circumstances of the crime and defendant's participation in the criminal episode. This case is not, therefore, one in which the trial court wholly fails to conduct the required inquiry. Compare, People v. Barrows, supra; People v. Perine, supra; People v. Combs, supra; People v. Robert Lee Moore, supra; People v. Porchia, supra. More importantly, the examination conducted here, although failing to establish an essential element of the crime to which defendant offered to plead guilty, permits an informed judgment that defendant Johnson was guilty of the greater offense of robbery armed. Nothing in Johnson's testimony indicated that he was in fact innocent of all charges. Compare, People v. Barrows, supra; People v. Richard E. Johnson, supra; People v. Stewart, supra; People v. Creger, supra; see also Judge LEVIN'S dissent in People v. Nelson (1969), 18 Mich. App. 177, 180, 182, 183. His testimony was to the contrary.

Once, as here, the examination of the accused establishes the greater offense of armed robbery and the accused's participation in its commission, further inquiry is not required. For, at that moment, the trial court has reasonably ascertained the truth of the plea, i.e., that "the accused is pleading guilty because he in fact is guilty." People v. Dunn (1968), 380 Mich. 693, 700. To hold otherwise would, on the facts of this case, require record testimony inconsistent with defendant's version of the facts. Such a result would undermine rather than promote the end sought to be achieved by GCR 1963, 785.3 (2) — namely, truthful pleas.

We regard as insignificant the fact that Johnson's testimony negated an essential element of the crime to which he offered to plead guilty. So long as his testimony fairly established the greater offense of armed robbery, we fail to see how Johnson is in any position to complain. Compare People v. Mason, supra.^[3] This conclusion is supported by People v. Collins, supra.

In Collins, defendants were charged with first-degree murder. They pleaded guilty and were convicted of second-degree murder, although on the evidence presented neither defendant could lawfully have been convicted of second-degree murder had they gone to trial.^[4] Motions to vacate the pleas and set aside the convictions were denied by the trial court. On appeal to the Supreme Court, the defendants argued that they were not guilty of the crimes to which they so pleaded. Rather, defendants took the position that they should have been charged and tried for first-degree murder, the greater offense. The Court's response, per T.E. BRENNAN, J., is equally applicable here:

"If there is any miscarriage of justice, under these circumstances it can only be one in which the people of the State of Michigan have exacted an insufficient penalty. Putting it another way, if there has been, under these circumstances, a miscarriage of justice, it is a miscarriage which ran to the benefit of the defendants and to the detriment of the people. Of such a miscarriage of justice, only the people can complain." 380 Mich. 131, 135.

Our recent decision in People v. Pickett (1970), 21 Mich. App. 246, also supports the conclusion that Johnson is in no position to challenge his plea and conviction thereon. Pickett was convicted upon his guilty plea of attempt to carry a concealed weapon, although his testimony showed consummation of the crime. We noted at 248, quoting People v. Bradovich (1943), 305 Mich. 329, 332:

"``"Such a verdict may be illogical, but the people cannot complain, and the defendant must accept it, even though less in measure than his just deserts; and least he cannot be heard to say that he has suffered injury."'"

Likewise, we find that justice has not miscarried in this case of Johnson.

Finally, the record in this case is replete with indicia of prosecutor-defense bargaining for charge concession.^[5] Such bargaining occurred notwithstanding the fact that Johnson had not taken the property from the actual person of the complaining witness. No objection was raised by Johnson's counsel on this ground when the plea was tendered or at sentencing. Nor at any time did Johnson contend that the bargain struck was unfair. To the contrary, by his plea Johnson succeeded in avoiding the risk of a life sentence upon conviction for armed robbery. Under these circumstances, we find no abuse of discretion on the part of the trial judge in denying defendant's motion to vacate his plea and for new trial.

Affirmed.

All concurred.

NOTES

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

[1] We quote the relevant colloquy between the court and defendant Johnson:

"Q. The court is further advised * * * that you desire at this time to withdraw your former plea to the charge of robbery while being armed with a dangerous weapon, to wit, a pistol, on the 10th of October 1967, and that you now offer to plead guilty to the offense, the lesser offense of larceny from the person. Is that correct?

"A. Yes sir." (Emphasis supplied.)

Under People v. Harris (1968), 11 Mich. App. 394, this exchange adequately informed defendant of the nature of accusation.

[2] The relevant colloquy is as follows:

"Q. All right. Robbery armed, the penalty upon plea or conviction is life or any term of years and larceny from a person, the maximum is ten years upon plea or conviction. Do you understand that?

"A. Yes sir." (Emphasis supplied.) By this exchange, the trial court adequately informed defendant of the "consequence" of his plea. People v. Dunn (1968), 380 Mich. 693. It should be noted that since defendant was represented by assigned counsel, the trial judge was not required to inform defendant of his right to jury trial, although defendant was so informed in this case. See People v. LaRoe (1969), 18 Mich. App. 262; People v. Wade (1970), 23 Mich. App. 132.

We further note that Boykin v. Alabama (June 2, 1969), 395 U.S. 238 (89 S. Ct. 1709, 23 L. Ed. 2d 274), has no application here, since the arraignment proceedings in this case antedated the decision in Boykin. This Court has not given Boykin retroactive effect. See People v. Taylor (1970), 383 Mich. 338 (concurring opinion, BLACK, J.) and cases cited therein; People v. Wade, supra.

[3] In Mason, the accused's testimony established the lesser offense of breaking and entering during the daytime, punishment for which was significantly less than for the crime to which the accused pleaded guilty. This fact was expressly noted by the Court. (See 13 Mich. App. 277, 280, note 3.)

[4] This conclusion was reached by Justices T.M. KAVANAGH, SOURIS and ADAMS in dissent. The majority did not take issue with the premise that the defendants could not have been convicted, had they gone to trial, of the crimes to which they pleaded guilty.

[5] The trial call statement filed in this case indicates that such bargaining occurred. It contains the following notations: "By defendant's attorney: Wishes to discuss plea"; "Prosecutor's Certificate: The prosecutor will consent to a plea of guilty to larceny from the person." The trial judge also took note of such bargaining when he examined defendant Johnson. We quote the relevant colloquy between the court and Johnson:

"Q. The court is further advised that there has been in writing, that there was a conference between Mr. Clarence Laster, assistant prosecuting attorney, assigned to the presiding judge, and your counsel, and the officer in charge of the case, that you desire at this time to withdraw your former plea to the charge of robbery while being armed with a dangerous weapon, to wit, a pistol, on the 10 of October of 1967, and that you now offer to plead guilty to the offense, the lesser offense, of larceny from the person. Is that correct?

"A. Yes, sir."