People v. Zunno

180 N.W.2d 17, 384 Mich. 151, 1970 Mich. LEXIS 109

Opinions

T. E. Brennan, C. J.

The following portions of the colloquy on arraignment between the court and the defendant are omitted in my Brother’s opinion:

“The Court: Are you pleading guilty of your own free will and volition?

“Respondent: Yes, sir.”

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“The Court: You gave yourself up?

“Respondent: Yes, sir.

“The Court: How old are you?

“Respondent: Twenty-four.

“The Court: Ever been in trouble before?

“Respondent: Yes, sir.

“The Court: What kind of trouble?

“Respondent: New York. I like to stand mute to all prior convictions.

. “The Court: Well, you are not being tried for the other convictions. The only thing I am talking about is this particular case and what kind of a record you have. This is taken into consideration.

“Respondent: It’s not a bad record. The prosecuting attorney has it from New York.”

Footnotes

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The prior criminal experience of an accused is not irrelevant at the plea-taking stage. Cases like People v. Winegar (1968), 380 Mich 719, are to be distinguished from cases like People v. Whitsitt (1960), 359 Mich 656, on the very ground that the former cases lack the appeal to equity to be found in the latter.

If appellate courts nit-pick the guilty pleas of the immature and inexperienced, because of their unfamiliarity with legal processes, upon what basis do they nit-pick the guilty pleas of seasoned offenders ?

If despite mootness and lateness and lack of any appeal to the heartstrings, we must examine every guilty plea transcript offered to us, line by humdrum line, and reiterate ad nauseam the principles of law which govern the jurisdictional and constitutional validity of convictions based upon pleas of guilty, then so be it.

On May 2, 1968, defendant Louis Zunno alias Louis DeAngelo filed in Macomb circuit court a delayed motion for new trial, asking the court to set aside his March 6, 1964, conviction upon plea of guilty to the crime of larceny by embezzlement or conversion.

The grounds for that motion, and the answer to each are as follows :

1. That at the time the plea of guilty was made by the defendant on March 6, 1964, he was not represented by counsel.

Answer: Representation by counsel in a criminal case is a right of the defendant, but not necessary to the jurisdiction of the court. The mere fact that defendant was not represented by counsel does not invalidate a plea-based conviction.

2. That at the time of said plea of guilty, he did not waive counsel, and was sentenced without the benefit of counsel.

Answer: A plea of guilty is an affirmative waiver of the pre-conviction rights of the accused. People v. Taylor (1970), 383 Mich 338; People v. Ferguson (1970), 383 Mich 645; Boykin v. Alabama (1969), 395 US 238 (89 S Ct 1709, 23 L Ed 2d 274). The record here shows that defendant knew he was entitled to counsel, and deliberately chose not to have counsel; that he was pleading guilty and intended thereby to dispense with the need for legal representation. His sentence without representation is not a basis for overturning the conviction.

3. That the defendant did not understand the nature of the statutory crime to which he gave his plea.

Answer: The information was read to the defendant. It alleged that the defendant “having been delivered of money in an amount in excess of $100.00 to wit: approximately $342.00 the property of one Ray G-alli, he, the said Louis Zunno, also known as Louis DeAngelo, did then and there fraudulently embezzle said money, and did thereby commit the crime of larceny.” The judge asked the defendant what happened here. The defendant replied that he was working for the man, that he had the money in his possession, that he took it and that he went to New York with it. He understood the nature of the statutory crime very well.

4. That the defendant did not waive trial by jury.

Answer: A voluntary plea of guilty waives trial fey jury. Defendant voluntarily pled guilty and thereby waived his right to a trial by jury.

5. That the information to which defendant pled guilty was faulty, in that it did not set forth properly the statutory offense of which the defendant was allegedly pleading guilty to and for which he was sentenced, to wit: MCLA § 750.362 (Stat Ann 1954 Eev § 28.594).

Answer: The information did not duplicate the statutory language, but the elements of larceny by embezzlement were set forth. A plea of guilty is a waiver of pro forma defects in the information.

6. That the plea of guilty was improperly received by the court, in that the defendant’s recitation of the facts of the alleged crime failed to show that all of the necessary elements of the crime charged were committed by the defendant, in that he never made any statements in reference to his fraudulent intent or the intent to defraud or steal, and that the recitation of the alleged crime as made by the defendant did not constitute either larceny by conversion or embezzlement under either MCLA § 750.362 (Stat Ann 1954 Eev § 28.594) or embezzlement under MCLA § 750.174 (Stat Ann 1962 Eev § 28.371), with which he was not charged.

Answer: The existence of the requisite criminal intent is not dependent upon a statement by the defendant as to the precise state of his mind at the time of the taking. Defendant stated upon the record that he took the money and went to New York with it. Against the background of his employment at a filling station, this admission alone would fairly establish the intent to steal. Even so, tbe admission did not stand alone; defendant further stated that after two weeks he gave himself up to the Roseville police station.

Certainly this action and admission pointed toward a conscious intent to steal. And if these indicia were not enough, the trial judge very carefully examined into any possible exculpatory circumstances arising from the defendant’s statement that “something happened in New York.” The trial judge generously characterized this vague reference as “an emergency”, and followed by asking whether defendant had suffered “death or sickness” in his family. Still defendant did not deny or minimize the obvious import of his prior admission.

Defendant’s motion for new trial lacked merit. The judgment of conviction should be affirmed.

Dethmers, Kelly, and Black, JJ., concurred with T. E. Brennan, C. J.

The appendix filed here discloses the bench notes of the trial judge made at the time of sentencing:

“On March 6, 1964 the offender entered a plea of guilty to the charge of Embezzlement of over $100, violation of [MCLA § 750.362] MSA 28.594. He is a 25-year-old white male who appears to possess average intelligence. He was born and raised in Queens, New York and quit school in the 10th grade. His only interest appears to be athletics. He has been previously sentenced in the State of New York on a charge of Grand Larceny, the sentence being one day to five years in Sing-Sing Prison. He served thirty months and was paroled and a few months later was cited for violation of parole and served an additional ten months, making the total of over four years served on a charge on which he could have been released in less than a year. He was released on probation on January 21, 1963 and has not reported to his parole officer since February 20, 1963. He appears to have an entire negative attitude toward all law enforcement officers and custody officials. In view of his violation of probation in New York and his overall attitude the court is of the opinion that a prison sentence is the only alternative. The court therefore imposed a sentence of one and one-half to five years in the State Prison for Southern Michigan with no recommendation, “/s/ George It. Deneweth,

George B. Deneweth, Macomb County Circuit Judge.1

Dated: March 30, 1964