People v. Bergevin

189 N.W.2d 771, 33 Mich. App. 369, 1971 Mich. App. LEXIS 1777
CourtMichigan Court of Appeals
DecidedMay 7, 1971
DocketDocket No. 8872
StatusPublished

This text of 189 N.W.2d 771 (People v. Bergevin) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Bergevin, 189 N.W.2d 771, 33 Mich. App. 369, 1971 Mich. App. LEXIS 1777 (Mich. Ct. App. 1971).

Opinions

O’Hara, J.

On October 4, 1968, appellant John Stephen Bergevin and Will LaVern Oaks were arrested pursuant to a complaint and warrant charging that they did unlawfully and feloniously rape, ravish, and carnally know Margaret Anita Pearce. (MOLA § 750.520 [Stat Ann 1962 Rev § 28.788].)

At the preliminary examination conducted on October 18, 1968, both defendants were bound over for trial.

Defendants were arraigned in the Circuit Court for the County of Kent on October 25, 1968, and [371]*371stood mute to the charge. Pleas of not guilty were entered and the case was set for trial on April 8, 1969. Following negotiations between counsel for defendants and the prosecuting attorney, a second count, charging assault with intent to commit rape, MCLA § 750.85 (Stat Ann 1962 Rev § 28.280), was added to the information, and both defendants were rearraigned and entered pleas of guilty to the second count on the day of trial. Subsequently, on May 9, 1969, the trial court pronounced sentence on both defendants, sentencing appellant John Bergevin to a prison term of not less than three nor more than ten years.

On January 7, 1970, appellant filed a petition with the circuit court requesting the appointment of appellate counsel. Since more than the 60-day appeal period had elapsed following imposition of sentence, the petition was denied. Thereafter, this Court granted appellant’s delayed application for leave to appeal and the case was remanded for the appointment of appellate counsel for defendant.

Defendant assigns as error the failure of the trial judge to advise appellant at the time of sentencing of his right to appeal, of his right to the assistance of counsel if indigent, and of any time limitations on the invocation of either right.

At the arraignment and the sentencing proceedings, the trial court must conform to the dictates of GrCR 1963, 785.3. As originally adopted on January 1, 1963, and as restored on June 8, 1967, and in effect at the present time, the rule provides that:

“Arraignment and Sentencing. In every prosecution wherein the accused is charged with a felony, the trial court shall conform to the following practice:
“(1) Arraignment. If the accused is not represented by counsel upon arraignment, before he is [372]*372required to plead, the court shall advise the accused that he is entitled to a trial by jury and to have counsel, and that in case he is financially unable to provide counsel the court will, if accused so requests, appoint counsel for him. If the accused states he will procure counsel or requests that counsel he appointed, a reasonable time thereafter shall he allowed for counsel to consult with the accused before his plea shall he taken.
“(2) Imposing Sentence. 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.
“(3) Record. The trial court shall cause a stenographic record to he made and promptly transcribed of the proceedings had under (1) and (2) above, and shall certify over his signature thereto that the same is a true record of the proceedings had. Thereupon the record so made shall be filed with the clerk of the court and become and be kept as a part of the record in the case. In any subsequent proceedings such record shall he competent evidence of the facts and circumstances therein recorded.
“(4) This rule is mandatory hut failure to comply therewith shall not be considered jurisdictional.”

The rule specifies in detail the matters concerning which an accused must be advised of by the trial court before a guilty plea may he accepted and sen[373]*373tence imposed by the judge. Nowhere is there any requirement that defendant at the time of sentencing be advised of his right to appeal, of his right to assistance of assigned counsel, and of the limitations on the exercise of either right. Moreover, the history of the rule indicates clearly that this omission was no oversight.1

Since defendant entered his guilty plea on April 8, 1969, and was duly sentenced, it is apparent that he cannot allege as reversible error the failure of the trial court to comply with GrCR 785.4(1) after the repeal thereof June 8, 1967. Hence, our inquiry is correspondingly limited to the ascertain[374]*374ment of whether compliance was had with the present GCR 785.3.

From the transcript of the arraignment, we quote, in relevant part, the questions of the trial court and the responses of the appellant and Will LaVern Oaks prior to acceptance of their guilty pleas by the court:

(By the Court):
“Q. Who is John Stephen Bergevin?
“A. I am.
“Q. Before you were in jail, where did you live?
“A. 1262 Boston S.E.
“Q. How old are you?
“A. Twenty-nine.
“Q. Married?
“A. Divorced.
“Q. You are Will LaVern Oaks?
“A. Yes, sir.
“Q. Where did you live?
“A. 312 James S. E.
“Q. How old are you?
“A. Twenty-four.
"The Court: May the record show that Mr. Bergevin and Mr. Oaks appear here with their attorney, Mr. Gordon Doherty.
“It will not be necessary then, Mr. Doherty, to do anything with the first count to which they stood mute, because the second count, Mr. Cole, is being added after arraignment, is that correct?
“Mr. Cole: That is correct, your Honor, the second count is being added as of today.
(By the Court):
“Q. All right, now you gentlemen know that you have a right to a trial?
“A. Yes.
“Q. Either before the court or before the court and a jury, do you understand that, John?
“A. Yes. sir. I do.
[375]*375“Q. Do you understand it, Will?
“A. Yes, sir.
“Q. Have you discussed the matter with Mr. Doherty?
“A. Yes, sir.
“A. Yes, sir.
“Q.

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Douglas v. California
372 U.S. 353 (Supreme Court, 1963)
Boykin v. Alabama
395 U.S. 238 (Supreme Court, 1969)
People v. McKinley
176 N.W.2d 406 (Michigan Supreme Court, 1970)
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181 N.W.2d 30 (Michigan Court of Appeals, 1970)
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Cite This Page — Counsel Stack

Bluebook (online)
189 N.W.2d 771, 33 Mich. App. 369, 1971 Mich. App. LEXIS 1777, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-bergevin-michctapp-1971.