J. H. Gillis, P. J.
Defendant, Willie J. Harper,
was charged with first-degree murder* 1 and, when brought to trial, tendered his counseled plea of guilty to second-degree murder.2 The court conducted an examination as to the degree of murder pursuant to MCLA § 750.318 (Stat Ann 1954 Rev § 28.550), and determined that at most defendant could be guilty of manslaughter.3 Defendant then offered a plea of guilty to manslaughter which the court accepted.
A month later, without defendant having been sentenced, the court set aside the conviction, ruling that the examination under the statute was improper since defendant had confessed and pleaded guilty to a specific degree of murder and the court did not have the authority to reduce the charge on its own motion. See People v. Carl (1968), 11 Mich App 226, 228. The case was reassigned to the same [76]*76judge and defendant offered a plea of guilty to second-degree murder which was then accepted. Following sentencing, defendant Harper was granted leave to file a delayed appeal.
On appeal, defendant Harper, in propria persona, attacks his conviction and sentence for second-degree murder on the basis that he was twice put in jeopardy for different degrees of the same crime. We are told that his guilty plea to the lesser included offense of manslaughter operated as an acquittal of the greater offenses. Cf. Mullreed v. Kropp (CA 6, 1970), 425 F2d 1095. Thereafter, Harper contends he could not be convicted, following the trial court’s vacation of the manslaughter plea, of the greater offense of second-degree murder.
The people contend that defendant Harper waived the asserted jeopardy bar by his failure to raise the question at the second plea proceeding.
This case demonstrates once again that the guilty plea and the jeopardy clause prove litigious — as well as strange — bedfellows.
We view with caution the oft-repeated claim, raised here by defendant Harper and, unfortunately, accepted by some courts, that a guilty plea to a lesser, or related, offense necessarily implies defendant’s innocence of the greater offense whenever at some subsequent proceeding defendant invokes an alleged jeopardy bar. As this case indicates, all too frequently appellate courts are invited to adjudicate such claims in a mechanistic fashion; a reviewing court is asked to apply the jeopardy bar without regard to the milieu in which the jeopardy claim is asserted. The Tenth Circuit Court of Appeals put the point well when it recently observed:
“It is true that a guilty plea is as final as a jury verdict but the double jeopardy implications re[77]*77verberating from a guilty plea and a jury verdict are not identical.” Ward v. Page (CA 10, 1970), 424 F2d 491, 493. (Emphasis supplied.)
The jeopardy reverberations said by defendant Harper to follow as necessarily incident to his plea of guilty to manslaughter in this case ring in our judicial ears in precisely the opposite direction. With all deference to Harper’s in propria persona efforts, we affirm defendant’s conviction of second-degree murder entered on his twice tendered, finally accepted, guilty plea.
I
After careful study of the record, we are satisfied that Harper, on learned advice of counsel, deliberately chose to forego any alleged violation of his right not to be twice placed in jeopardy for the same offense. By his counseled plea, defendant avoided the risk of what, on this record, appears to be the substantial certainty of a conviction after trial of murder in the first degree.4 *But for the prosecutor’s agreement to allow defendant “in the best interests of justice”5 to enter a plea to the lesser-included offense of second-degree murder, Harper could have been required to run the gantlet of what, almost assuredly, would have resulted in a conviction of first-degree murder. What was done here in no wise conflicts with the underlying rationale of the jeop[78]*78ardy clause: “[T]o make rare indeed the occasions when the citizen can for the same offense be required to run the gantlet twice.” Gori v. United States (1961), 367 US 364, 373 (81 S Ct 1523, 1528, 6 L Ed 2d 901, 907). (Dissenting opinion by Mr. Justice Douglas.) On the contrary, by virtue of what fairly appears as a negotiated plea Harper avoided running the gantlet even once. Nothing in the jeopardy clause, state or Federal, requires that we set aside Harper’s plea on jeopardy objections first raised by Harper, in propria persona, at this late appellate stage.
A fair reading of the record in this case indicates that, as a matter of strategy, defendant on advice of counsel opted to bargain anew for the probable quid pro quo — a sentence less than the mandatory term of life imprisonment — -notwithstanding putative objections of double jeopardy at trial below. The record contains a memorandum of law asserting an alleged jeopardy bar to any proceeding other than sentencing of the defendant for manslaughter. However, this objection was never pressed at trial; instead, the trial judge noted on the record:
“Upon a re-examination of the law, the court was satisfied that it was wrong; that where there is a specific degree of homicide charge and a plea is intelligently and voluntarily offered to that degree of homicide there is no authority in the court’s — or obligation on the part of the court to take testimony for the purpose of fixing the degree of homicide. Accordingly, the court decided to put everything back in the same status that it was before the grievous error was made and so the offer of a plea by the defendant was set aside and the matter was sent back to the Presiding Judge for reassignment to another judge for trial, or offer of a plea, as the ease may be.
[79]*79“The Presiding Judge saw fit to send it hack to me. I indicated that I would still he reluctant to proceed with the matter unless there was an agreement on the part of the prosecution, as well as the defense, that I should retain jurisdiction and that agreement was placed on the record and today was set as the date for trial.
“The present status of the case, therefore, is that you are right where you were when you first came into the court room June 8, 1967.
“We can take it from there.
“Mr. Henry [defense counsel]: May it please the court, my name is Milton Henry. I appear on behalf of the respondent, Willie James Harper, at this time. We would like to enter a plea, if the court would accept the same, to the crime of murder in the second degree.
“I have discussed the matter fully with Mr. Harper. I have had occasion to go over the evidence with him and he advises me that in view of all that had happened and in view of the actual circumstances he still wishes to enter a plea to the charge of murder in the second degree.” (Emphasis supplied.)
Since the trial court was without authority to accept defendant’s manslaughter plea on its own motion, such acceptance was a nullity; defendant’s manslaughter conviction was void; and the trial judge properly set the conviction aside. What was said in People v.
Free access — add to your briefcase to read the full text and ask questions with AI
J. H. Gillis, P. J.
Defendant, Willie J. Harper,
was charged with first-degree murder* 1 and, when brought to trial, tendered his counseled plea of guilty to second-degree murder.2 The court conducted an examination as to the degree of murder pursuant to MCLA § 750.318 (Stat Ann 1954 Rev § 28.550), and determined that at most defendant could be guilty of manslaughter.3 Defendant then offered a plea of guilty to manslaughter which the court accepted.
A month later, without defendant having been sentenced, the court set aside the conviction, ruling that the examination under the statute was improper since defendant had confessed and pleaded guilty to a specific degree of murder and the court did not have the authority to reduce the charge on its own motion. See People v. Carl (1968), 11 Mich App 226, 228. The case was reassigned to the same [76]*76judge and defendant offered a plea of guilty to second-degree murder which was then accepted. Following sentencing, defendant Harper was granted leave to file a delayed appeal.
On appeal, defendant Harper, in propria persona, attacks his conviction and sentence for second-degree murder on the basis that he was twice put in jeopardy for different degrees of the same crime. We are told that his guilty plea to the lesser included offense of manslaughter operated as an acquittal of the greater offenses. Cf. Mullreed v. Kropp (CA 6, 1970), 425 F2d 1095. Thereafter, Harper contends he could not be convicted, following the trial court’s vacation of the manslaughter plea, of the greater offense of second-degree murder.
The people contend that defendant Harper waived the asserted jeopardy bar by his failure to raise the question at the second plea proceeding.
This case demonstrates once again that the guilty plea and the jeopardy clause prove litigious — as well as strange — bedfellows.
We view with caution the oft-repeated claim, raised here by defendant Harper and, unfortunately, accepted by some courts, that a guilty plea to a lesser, or related, offense necessarily implies defendant’s innocence of the greater offense whenever at some subsequent proceeding defendant invokes an alleged jeopardy bar. As this case indicates, all too frequently appellate courts are invited to adjudicate such claims in a mechanistic fashion; a reviewing court is asked to apply the jeopardy bar without regard to the milieu in which the jeopardy claim is asserted. The Tenth Circuit Court of Appeals put the point well when it recently observed:
“It is true that a guilty plea is as final as a jury verdict but the double jeopardy implications re[77]*77verberating from a guilty plea and a jury verdict are not identical.” Ward v. Page (CA 10, 1970), 424 F2d 491, 493. (Emphasis supplied.)
The jeopardy reverberations said by defendant Harper to follow as necessarily incident to his plea of guilty to manslaughter in this case ring in our judicial ears in precisely the opposite direction. With all deference to Harper’s in propria persona efforts, we affirm defendant’s conviction of second-degree murder entered on his twice tendered, finally accepted, guilty plea.
I
After careful study of the record, we are satisfied that Harper, on learned advice of counsel, deliberately chose to forego any alleged violation of his right not to be twice placed in jeopardy for the same offense. By his counseled plea, defendant avoided the risk of what, on this record, appears to be the substantial certainty of a conviction after trial of murder in the first degree.4 *But for the prosecutor’s agreement to allow defendant “in the best interests of justice”5 to enter a plea to the lesser-included offense of second-degree murder, Harper could have been required to run the gantlet of what, almost assuredly, would have resulted in a conviction of first-degree murder. What was done here in no wise conflicts with the underlying rationale of the jeop[78]*78ardy clause: “[T]o make rare indeed the occasions when the citizen can for the same offense be required to run the gantlet twice.” Gori v. United States (1961), 367 US 364, 373 (81 S Ct 1523, 1528, 6 L Ed 2d 901, 907). (Dissenting opinion by Mr. Justice Douglas.) On the contrary, by virtue of what fairly appears as a negotiated plea Harper avoided running the gantlet even once. Nothing in the jeopardy clause, state or Federal, requires that we set aside Harper’s plea on jeopardy objections first raised by Harper, in propria persona, at this late appellate stage.
A fair reading of the record in this case indicates that, as a matter of strategy, defendant on advice of counsel opted to bargain anew for the probable quid pro quo — a sentence less than the mandatory term of life imprisonment — -notwithstanding putative objections of double jeopardy at trial below. The record contains a memorandum of law asserting an alleged jeopardy bar to any proceeding other than sentencing of the defendant for manslaughter. However, this objection was never pressed at trial; instead, the trial judge noted on the record:
“Upon a re-examination of the law, the court was satisfied that it was wrong; that where there is a specific degree of homicide charge and a plea is intelligently and voluntarily offered to that degree of homicide there is no authority in the court’s — or obligation on the part of the court to take testimony for the purpose of fixing the degree of homicide. Accordingly, the court decided to put everything back in the same status that it was before the grievous error was made and so the offer of a plea by the defendant was set aside and the matter was sent back to the Presiding Judge for reassignment to another judge for trial, or offer of a plea, as the ease may be.
[79]*79“The Presiding Judge saw fit to send it hack to me. I indicated that I would still he reluctant to proceed with the matter unless there was an agreement on the part of the prosecution, as well as the defense, that I should retain jurisdiction and that agreement was placed on the record and today was set as the date for trial.
“The present status of the case, therefore, is that you are right where you were when you first came into the court room June 8, 1967.
“We can take it from there.
“Mr. Henry [defense counsel]: May it please the court, my name is Milton Henry. I appear on behalf of the respondent, Willie James Harper, at this time. We would like to enter a plea, if the court would accept the same, to the crime of murder in the second degree.
“I have discussed the matter fully with Mr. Harper. I have had occasion to go over the evidence with him and he advises me that in view of all that had happened and in view of the actual circumstances he still wishes to enter a plea to the charge of murder in the second degree.” (Emphasis supplied.)
Since the trial court was without authority to accept defendant’s manslaughter plea on its own motion, such acceptance was a nullity; defendant’s manslaughter conviction was void; and the trial judge properly set the conviction aside. What was said in People v. Garcia (1969), 19 Mich App 465, 467, applies here as well:
“When the trial court vacated defendant’s plea, the posture of the case was as before the rearraignment, a plea of not guilty to an open charge of murder.”
Contrary to defendant’s expressly abandoned position at trial — an abandonment grounded upon considerations of strategy — Harper could lawfully have [80]*80been retried for murder in tbe first degree. Cf. People v. Garcia, supra; People v. Burt (1970), 29 Mich App 275.
Tbe trial judge made tbe nature of tbe strategem of which we write perfectly clear when be noted at Harper’s sentencing:
“Counsel, Mr. Henry, has done an exceptional job representing you, trying to make tbe best of what some other lawyer would regard as a hopeless situation. You are really fortunate in that the charge against you is murder in the second degree rather than murder in the first degree. If it were murder in the first degree there would be no alternative but to sentence you away for the rest of your life. Murder in the second degree is punishable in Michigan by any number of years up to life.”
Harper was sentenced to a period of incarceration for no more than 20 years.
To recapitulate: By his plea, Harper avoided the risk of a mandatory life sentence; he chose rather to opt for the probability, later realized, of a lesser term of years. Since defendant as a matter of strategy decided at trial to abandon what he now so vigorously voices as his jeopardy objection, we hold on appeal that defendant is bound by his bargain — a bargain freely and voluntarily entered.6 [81]*81Again, nothing in the Constitutions, state or Federal, requires a contrary conclusion.
For authority, we need go no further than to note that it is well established that a deliberate choice of strategy waives the jeopardy defense. See Henry v. Mississippi (1965), 379 US 443, 450, 451 (85 S Ct 564, 569; 13 L Ed 2d 408, 414, 415). Such a choice is obvious in this case. The record makes it abundantly clear that, while a jeopardy defense was putatively considered at trial, it was later wholly abandoned. There is no need for this Court to resurrect the alleged jeopardy bar where the defendant — to complete the metaphor — deliberately chose to bury the defense at trial. Compare: People v. Bower (1966), 3 Mich App 585; People v. McPherson (1970), 21 Mich App 385.
II
Although we might rest solely on the ground that defendant Harper waived any claim to double jeopardy, we think it appropriate to add a final observation.
It is simply time for some clear thinking regarding the recently obfuscated nexus between the guilty plea and the jeopardy clause. Those familiar with jeopardy jurisprudence will undoubtedly recognize our reference to the recent opinion of the Sixth Circuit Court of Appeals, Mullreed v. Kropp, supra.
We hereby express total disagreement with the Mullreed opinion. It ignores the importance of the [82]*82plea milieu. Compare Ward v. Page, supra. We agree, rather, with every contention raised on behalf of the State of Michigan in Mullreed and think the Sixth Circuit’s opinion should not and need not be followed in Michigan. This is especially true with regard to Judge Phillips’ characterization of Michigan law appearing at pp 1100, 1102:
“We think the conviction and sentence necessarily show that the trial court found an evidentiary concurrence of the elements required for the conviction, otherwise the conviction on the guilty plea would not have been lawful.
* # *
“It is apparent that the conviction on the lesser offense requires an affirmative finding that the actor was not armed with a dangerous weapon. This determination necessarily is inconsistent with a concurrent or subsequent finding that he committed robbery while armed.”
Such is not the State of Michigan’s law. For complete explication, see People v. Sylvester Johnson (1970), 25 Mich App 258.
Defendant Harper’s conviction upon his plea of guilty to the reduced charge of second-degree murder is affirmed.