Summary
holding that the defendant was denied his Sixth Amendment right to counsel because he was not represented by counsel at sentencing
Summary of this case from People v. BuieOpinion
Docket No. 5,087.
Decided April 23, 1969. Leave to appeal denied January 30, 1970. See Mich 764.
Appeal from Mecosta, Harold Van Domelen, J. Submitted Division 3 January 9, 1969, at Grand Rapids. (Docket No. 5,087.) Decided April 23, 1969. Leave to appeal denied January 30, 1970. See 383 Mich. 764.
James Earl Dickerson was convicted, on his plea of guilty, of breaking and entering in the nighttime and was sentenced. From the denial of his motion for a new trial defendant appeals. Conviction affirmed. Sentence vacated and the cause remanded for imposition of sentence with defendant's counsel present.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and William A. Harper, Prosecuting Attorney, for the people.
James Earl Dickerson, in propria persona.
BEFORE: LEVIN, P.J., and HOLBROOK and DANHOF, JJ.
The defendant was convicted on his plea of guilty of the crime of breaking and entering in the nighttime. CL 1948, § 750.110 (Stat Ann 1962 Rev § 28.305). He appeals from a denial of his motion for a new trial.
The defendant's argument on appeal is based on PA 1964, No 133 (MCLA § 750.110 [Stat Ann 1968 Cum Supp § 28.305]) which eliminated the distinction between breaking and entering in the nighttime and the daytime. See CL 1948, §§ 750.110, 750.111 (Stat Ann 1962 Rev §§ 28.305, 28.306) for the former statute. The former statute provided a maximum 15-year sentence for nighttime breaking and entering. Under the 1964 amendment that sentence may now be meted out only to those who break and enter an "occupied dwelling house." The defendant claims that the 15-year maximum sentence, which may now be imposed under this section of the penal code only for breaking and entering an occupied dwelling house, may not be exacted from him because the building he was convicted of breaking and entering was unoccupied.
The defendant's argument is without merit. The offense with which the defendant was charged and of which by his plea of guilty he was convicted was alleged in the information to have been committed on December 13, 1957, some 7 years before the effectiveness of the 1964 act on August 28, 1964 (PA 1964, p 600). The prosecution of those who committed the offense of nighttime breaking and entering before the effective date of the 1964 act is governed by the former statute as it read before the 1964 act became effective. People v. McDonald (1968), 13 Mich. App. 226, 229.
As to the distinction between breaking and entering an occupied and an unoccupied dwelling house, see People v. Birts (1969), 16 Mich. App. 237.
The defendant's brief concludes with the claim that his plea of guilty was induced by promises of leniency and probation. The defendant does not state who is alleged to have made such promises. The bare assertion that a promise of leniency or of probation induced the defendant's plea does not entitle the defendant to a reversal of his conviction or even to a testimonial hearing on such meager allegations. Cf. People v. Scruggs (1968), 14 Mich. App. 47; contrast People v. Bartlett (1969), 17 Mich. App. 205.
The defendant was not represented at the time of sentencing by counsel. He was sentenced to serve a term of not less than 18 months or more than 15 years.
At the time the defendant pled guilty he was 21 years of age. At the time the offense was committed he was 17.
In People v. Dye (1967), 6 Mich. App. 217, 221, our Court held that, "sentencing is a critical stage of a criminal proceeding and, absent waiver, counsel's presence is required." This holding was followed in People v. Theodorou (1968), 10 Mich. App. 409, 416.
The conviction is affirmed. The sentence of the trial court is vacated and the cause remanded for imposition of sentence with defendant's counsel present.