Summary
In Gilroy, a reasonably intelligent defendant could well have understood the circuit court's question as indicating only that the defendant had the right to retain counsel to represent him in court proceedings, not that he had a right to have the court appoint counsel for him.
Summary of this case from People v. AsquiniOpinion
Docket No. 10953.
Decided November 29, 1971.
Appeal from Macomb, James E. Spier, J. Submitted Division 2 September 7, 1971, at Lansing. (Docket No. 10953.) Decided November 29, 1971.
Gerald K. Gilroy was convicted, on his plea of guilty, of breaking and entering in the nighttime. Defendant appeals by leave granted. Reversed and remanded.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, George N. Parris, Prosecuting Attorney, Thaddeus F. Hamera, Chief Appellate Lawyer, and Stephen F. Osinski, Assistant Prosecuting Attorney, for the people.
James A. Scandirito, for defendant on appeal.
Before: V.J. BRENNAN, P.J., and FITZGERALD and LEVIN, JJ.
On December 8, 1961, defendant was arraigned in the Macomb County Circuit Court on an information charging him with breaking and entering in the nighttime pursuant to CL 1948, § 750.110 (Stat Ann § 28.305). Defendant, without the presence of counsel, pleaded guilty, following a reading of the information. He was sentenced on December 15, 1961, to a prison term of 1 to 15 years. His application for delayed appeal in this Court was granted on March 26, 1971.
See, presently, MCLA § 750.110 (Stat Ann 1971 Cum Supp § 28.305).
Defendant claims that the trial court, prior to accepting his plea, did not properly advise him as to his right to court-appointed counsel in the event of his indigency, pursuant to Court Rule No 35A (1945), citing People v. Faulman (1970), 23 Mich. App. 635; and that, although the court did inform defendant that he was waiving that right, the court's advice was not clearly given due to the failure to inform defendant as to his right to court-appointed counsel.
318 Mich xxxix; see, presently, GCR 1963, 785.3(1).
"The Court: Do you understand what you are charged with? "The Respondent: Yes, sir.
"The Court: Breaking and entering in the nighttime. Do you know what you are going to do with this case?
"The Respondent: Yes, sir.
"The Court: What do you want to do?
"The Respondent: Plead guilty.
"The Court: Do you understand you have a right to have a trial by jury if you want one?
"The Respondent: Yes, sir.
"The Court: Do you understand you have a right to have a lawyer if you want one?
"The Respondent: Yes, sir.
"The Court: Do you understand that?
"The Respondent: Yes, sir.
"The Court: Do you understand that you are waiving those rights when you plead guilty and there will be no trial, any trial, do you understand all that?
"The Respondent: Yes, sir."
A defendant can offer a plea of guilty without waiving his right to counsel. Indeed, he is entitled to counsel and to have counsel offered him before he is asked to decide what he "wants to do". He is entitled to the benefit of the advice of counsel when he decides whether to plead guilty. Here, he was asked how he pled and then perfunctorily advised as to his right to counsel.
Gideon v. Wainwright (1963), 372 U.S. 335 ( 83 S Ct 792, 9 L Ed 2d 799, 93 ALR 2d 733) was decided after the defendant in this case pled guilty, but the mandate of that case is fully retroactive and applies to guilty pleaders. See People v. Carson (1969), 19 Mich. App. 1, 5, fns 4, 7.
Our conclusion obviates discussion of other issues appealed.
Reversed and remanded.