People v. Rice

228 N.W.2d 452, 58 Mich. App. 538, 1975 Mich. App. LEXIS 1728

• Court: Michigan Court of Appeals
• Decided: February 12, 1975
• Docket: Docket No. 19354
• Status: Published

Opinions

N. J. Kaufman, J.

Defendant was charged with second-degree murder and thereafter pled guilty to a charge of manslaughter on August 16, 1973, MCLA 750.321; MSA 28.553. Defendant was sentenced to a term of from 5 to 15 years. He appeals by right.

On appeal, defendant raises two claims of error, both of which relate to the procedure by which the trial court accepted his plea. First, defendant contends that his plea negotiation was not properly acknowledged in accordance with the requisites of GCR 1963, 785.7(2).¹ Plaintiff claims that the plea bargain was "clearly stated on * * * the plea transcript”. GCR 1963, 785.7(2) requires that:

"The Court shall not accept a plea of guilty or nolo contendere without personally addressing the defendant and determining that the plea is freely, understandingly and voluntarily made. If the tendered plea is the result of an agreement between the prosecutor and the defendant or his lawyer regarding the entry of a plea, the agreement shall be stated on the record and affirmatively acknowledged by the defendant, his lawyer and the prosecutor.”

The plea transcript discloses that the prosecutor took no part in the plea-taking procedure. The transcript contains no indication that he was even present in the courtroom at any time during the plea-taking. The prosecutor did, however, file with the court, at some time during the day on which the plea was taken, a signed form which stated that he intended to agree to a reduced charge. The plea agreement itself was introduced by defense counsel, and the only acknowledgement of the agreement on the record was his statement that:

"After conference with the prosecuting attorney’s office, they have indicated they would offer a charge,— offer a plea to manslaughter, the original charge being murder in the second degree. After conferring at great length with my client, and after a review of all the facts of this case, my client has indicated to me that he wishes to offer a plea to the charge of manslaughter.”

The record also contains no statement by the defendant in which he affirmatively acknowledges the plea agreement.

In People v Shekoski, 393 Mich 134; 224 NW2d 656 (1974), the Supreme Court mandated strict adherence to the letter of GCR 785.7. According to Shekoski, neither substantial compliance nor the absence of prejudicial error will save a plea procedure which did not rigidly follow the requirements of Rule 785.7. Plaintiff did not comply with the requirements of Rule 785.7 as mandated by Shekoski.

We do not believe in the absolute elevation of form over substance, and we hope that Shekoski does not represent such an elevation. However, Rule 785.7 should, at least, require the prosecutor to be present during a plea-taking. The prosecutor’s presence can better assure the correctness of the plea placed on the record and his comments will aid appellate review of challenged agreements. Equally as important, the prosecutor can serve as an added aid to the court in making sure that the plea-taking conforms to the court rules and will not have to be stricken on appeal. To do so, however, he must be present in the courtroom. See People v Hubbard, 57 Mich App 542; 226 NW2d 557 (1975).

Defendant’s second claim of error is that the trial court failed to apprise defendant of his right to a bench trial prior to accepting his plea, contrary to the mandate of GCR 1963, 785.7(l)(d)(i). Plaintiff contends that the trial court substantially complied with that mandate and that, in any event, defendant’s written waiver of a jury trial exempted this requirement. GCR 785.7(l)(d)(i) requires that:

"The court shall not accept a plea of guilty * * * without first personally addressing the defendant and informing him of and determining that he understands * * * that by his plea of guilty * * * the defendant waives * * * the right to a jury trial or trial by the court * * * .” (Emphasis added.)

We agree with defendant. Initially we note that plaintiffs claim that the trial court substantially complied with Rule 785.7 fails in light of Shekoski, supra, which clearly states that substantial complianee will not suffice. We find no place in the plea transcript where the trial court affirmatively informed defendant he was waiving his right to a bench trial or that he understood he was doing so. The trial court mentioned defendant’s right to bench trial only once, when it asked, "Do you understand that a plea is tantamount and equal to a conviction by a court or a jury on the charge of manslaughter?”

At all other times in the plea-taking, the court spoke only of defendant’s right to a jury trial. When the court advised defendant of his right not to testify and of his presumption of innocence, it did so only with reference to a jury trial.² By omitting any reference to a bench trial in connection with defendant’s presumption of innocence, the trial court might have been heard by the defendant to say that the presumption did not govern a trial by the court. Clearly, "[irrespective of whether the cause is tried with or without a jury, [a defendant] is entitled to the presumption of innocence * * * ”. People v Ward, 256 Mich 170, 172; 239 NW 335, 336 (1931). Defendant’s alleged waiver of a jury trial cannot exempt the trial court from its duty to inform him that his guilty plea waives his right to a bench trial. We cannot presume any knowledge by defendant of his right to a bench trial from his waiver of a jury trial. More importantly, GCR 785.7(l)(d)(i) specifically requires the trial court to inform defendant that he is waiving his right to a bench trial and that he understands he is doing so. Shekoski mandates strict adherence to this requirement.

Reversed.

O’Hara, J., concurred.

1 The challenged plea occurred after the effective date of GCR 1963, 785.7, June 1, 1973, and is, thus, subject to its requirements.

2 "Do you understand, also, that if you did exercise your right to a jury trial, there would be a presumption of innocence which would be with you during the trial * * *

" * * * if you did exercise your right not to testify, the prosecutor could not comment before a jury on your failure to testify or raise any inferences or implications of guilt before the jury. ” (Emphasis supplied.)