People v. Totty

157 N.W.2d 330, 10 Mich. App. 462

• Court: Michigan Court of Appeals
• Decided: February 25, 1973
• Docket: Docket 2,073
• Status: Published

Opinions

Newblatt, J.

Defendants pleaded guilty'to robbery armed -,1 the pleas were accepted and defendants were both sentenced. The robbery is charged as having taken place on March 19, 1965. At the time of the arraignments, the reading of the information was waived. Both defendants were represented by counsel who in response to questions by the arraigning judge indicated that they had advised their respective clients of their rights. The judge also asked each defendant whether he was present at the magistrate’s preliminary examination and both defendants acknowledged they had been present and they had heard the testimony.

As to defendant Totty, the judge failed to inform him of the nature of the accusation.

As to defendant Cooper, the judge failed to inform him of the nature of the accusation, and unlike his procedure with defendant Totty, the judge also failed to examine defendant Cooper to ascertain that the plea was freely, understandingly, and voluntarily made, without undue influence, compulsion, or duress, and without promise of leniency.

Certain principles of law are now so well established by the decisions of this Court, as well as of the Supreme Court, that extended discussion would be neither instructive nor beneficial to bench and bar.

GCR 1963, 785.3(2), dealing with acceptance of pleas of guilty, requires that the court ascertain more about the plea than that the defendant agrees that it is expedient so to plead. “The rule is designed to require reasonable ascertainment of the truth of the plea.” People v. Barrows (1959), 358 Mich 267, 272. A waiver of the reading of the information neither supplies the deficiency nor cures the error of failing to inform the accused of the nature of the accusation. People v. Johnson (1966), 2 Mich App 182. The requirements of GCR 1963, 785.3 must be observed. People v. Demers (1966), 2 Mich App 238. It is an abuse of the judge’s discretion to deny a motion to withdraw a plea of guilty and to deny a new trial if the mandatory requirements of the rule were not observed. People v. Wilkins, 3 Mich App 56.

Plaintiff claims that the interrogation called for by the rule with reference to defendant Cooper was not necessary in view of Cooper’s presence in court during the extended interrogation of Totty. Plaintiff claims that if Cooper’s “plea was the product of any threat or promise, he certainly had the opportunity to make the court aware of this”. This Court has held that presence of defendant in court and his hearing other unrelated arraignments and pleas, and hearing the judge comply with the rule as to other defendants and inform them of their constitutional rights does not satisfy the requirements of the rule. “The court rule states £in every prosecution,’ and the defendant was not required to listen to the arraignment of another defendant in an unrelated case2 to be informed of his constitutional rights. It was the duty of the trial judge to inform him in his individual case of his right to court-appointed counsel if he could not afford to retain his own attorney.” People v. Richardson (1966), 4 Mich App 586, 588.

The mandatory requirements of the rule not having been complied with, the cause is reversed and remanded for new trial as to both appellants.

McGregor, P. J., concurred with Newblatt, J.

1 CLS 1961, § 750.529 (Stat Ann 1965 Cum Supp § 28.797).

2 The italicized language in the above quotation is not deemed necessary to the statement made in that case, nor does it imply that in a related ease, a defendant would be required to listen.