Summary
In White, the Court dismissed as dictum the reference in People v. Atkins (1966), 2 Mich. App. 199, to "consequence of his plea" in support of Atkins' holding that the trial judge in that case should have advised the defendant, who was just 16, of the maximum sentence for the crime there charged.
Summary of this case from People v. FergusonOpinion
Docket No. 2,944.
Decided November 24, 1967.
Appeal from Jackson; Dalton (John C.), J. Submitted Division 2 June 8, 1967, at Lansing. (Docket No. 2,944.) Decided November 24, 1967.
Charles A. White was convicted on his plea of guilty of escape from prison, charged as a third felony. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Bruce A. Barton, Prosecuting Attorney, and Vincent F. Stapley, Assistant Prosecuting Attorney, for the people.
James S. Treciak, for defendant.
On leave granted January 14, 1967, defendant Charles A. White appeals his conviction and sentence for escape from prison, charged as a third felony. He was convicted September 7, 1960, on his plea of guilty to having escaped August 21, 1960, from the State prison of Southern Michigan.
CLS 1961, § 750.193 (Stat Ann 1962 Rev § 28.390); § 769.11 (Stat Ann 1954 Rev § 28.1083).
The sole issue raised on appeal is whether the trial judge complied with Court Rule No 35A, § 2(1945), now GCR 1963, 785.3(2) in relation to "consequence of his plea" by failing to advise defendant of the possible minimum and maximum sentence.
See 318 Mich xxxix.
"If the accused pleads guilty, after such plea and before sentence the court shall inform the accused of the nature of the accusation and the consequence of his plea; and regardless of whether he is represented by counsel, the court shall examine the accused, not necessarily under oath, and as a condition of accepting the plea of guilty and imposing sentence shall ascertain that the plea was freely, understandingly, and voluntarily made, without undue influence, compulsion, or duress, and without promise of leniency. Unless the court determines that the plea of guilty was so made, it shall not be accepted."
The record fails to disclose that the trial judge advised defendant in any manner of the possibility of being sentenced to prison, and relying on People v. Atkins (1966), 2 Mich. App. 199, defendant contends his conviction should be reversed.
Since Atkins, supra, this Court has been inundated with appeals involving the relation of advice to a defendant by a trial judge with respect to possible punishment to the phrase "consequence of his plea" found in Court Rule No 35A, § 2(1945) and in GCR 1963, 785.3(2). Since Atkins, supra, defendants, the profession and this Court have accepted that decision as standing for the proposition that such advice bears some relation to "consequence of his plea." In its last pronouncement on this question, this Court said in People v. Menton (1967), 7 Mich. App. 267, that advice as to the possibility of prison sentence was sufficient, but we still related such advice to "consequence of his plea."
People v. Curtis Lee Williams (1966), 2 Mich. App. 232; People v. Leach (1966), 2 Mich. App. 713; People v. Wilkins (1966), 3 Mich. App. 56; People v. Winegar (1966), 4 Mich. App. 547; People v. Cairns (1966), 4 Mich. App. 633; People v. Smith (1966), 5 Mich. App. 139; see dissent in People v. Catterson (1966), 5 Mich. App. 488.
A close reading of Atkins, supra, discloses that the language relied on to support the proposition that "consequence of his plea" relates to advice with respect to punishment is dictum. The controlling questions in Atkins, supra, were whether a youthful defendant understandingly waived his right to counsel and understandingly pleaded guilty. The language in the last paragraph of that opinion which indicates that "consequence of his plea" relates to advice with respect to possible minimum and maximum sentence has nothing to do with the decision on the controlling issues, and we reject it as authority controlling the issue now before us.
The facts of this case present a shining example of the fallacy of the contention here raised, namely: this plea should be set aside and the conviction reversed solely on the basis that this defendant was not advised of the possible punishment that might flow from his conviction by plea of guilty. Defendant here is an adult with 2 prior convictions and prison sentences resulting from guilty pleas. There is no claim and no showing that defendant was prejudiced in any way by not having such advice, nor does defendant contend he would not have pleaded guilty had such advice been given. He merely says that under Atkins, supra, the rule requires that such advice be given; it was not given; ipso facto the conviction is defective. We reject the argument.
By logic and by the language of Court Rule No 35A (1945) and GCR 1963, 785.3, the phrase "consequence of his plea" bears no relation to advice by the trial judge to a defendant with respect to punishment. Any person charged with a crime has a constitutional right to trial, US Const, Am 6; Mich Const 1908, art 2, § 19; Mich Const 1963, art 1, § 20; he also has a right to plead guilty. Attorney General v. Montgomery (1936), 275 Mich. 504, 529; CL 1948, § 763.2 (Stat Ann 1954 Rev § 28.855). Consequence is a natural or necessary result, Webster's Third New International Dictionary (1964), p 482. The natural or necessary result of the exercise of the right to plead guilty is to waive the constitutional right to trial and all the incidents thereof. Such is the sense and true meaning of Court Rule No 35A (1945) and GCR 1963, 785.3. The first subsection of each mandates that before an accused is required to plead, the trial judge shall advise as to the rights therein specified. The second subsection of each requires, inter alia, that the judge, on plea of guilty, inform accused of the consequence of his plea. The natural and necessary result of the plea is to waive the rights specified in subsection 1 of each rule.
Affirmed.
LESINSKI, C.J., and QUINN, J., concurred.