People v. Gilroy

194 N.W.2d 489, 37 Mich. App. 275, 1971 Mich. App. LEXIS 1199

• Court: Michigan Court of Appeals
• Decided: November 29, 1971
• Docket: Docket 10953
• Status: Published

Opinion

Per Curiam.

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). 1 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.

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), 2 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.

“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 Court: Do you understand you have a right to have a lawyer if you want one?

“The Court: Do you understand that?

“The Court: Do you understand that you are waiving those rights when you plead guilty and there will he 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 US 335 (83 S Ct 792, 9 L Ed 2d 799, 93 ALR 2d 733) was decided after the defendant in this case pled guilty, hut 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.

Beversed and remanded.

1 See, presently, MOLA § 750.110 (Stat Ann 1971 Cum Supp § 28.305).

2 318 Mich xxxix; see, presently, GCR 1963, 785.3(1).