Summary
In People v Mitchell, 125 Mich. App. 475, 477; 336 N.W.2d 31 (1983), the Court of Appeals reversed the defendant's conviction where the trial court did not advise him of his right to be presumed innocent until proved guilty.
Summary of this case from People v. SaffoldOpinion
Docket No. 60372.
Decided May 4, 1983.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief Appellate Counsel, and Richard H. Browne, Assistant Prosecuting Attorney, for the people.
Adrian B. Spinks, for defendant on appeal.
Defendant pled guilty to armed robbery, MCL 750.529; MSA 28.797, felony-firearm, MCL 750.227b; MSA 28.424(2), and breaking and entering an occupied dwelling with intent to commit larceny, MCL 750.110; MSA 28.305. He appeals by right.
Defendant raises eight issues on appeal, one of which requires reversal.
The record reveals that the trial court did not advise the defendant that he has the right to be presumed innocent until proven guilty. Defendant argues that this failure entitles him to reversal. We agree. GCR 1963, 785.7(1)(g)(iii) requires the trial court to advise the defendant as to the presumption of innocence. In Guilty Plea Cases, 395 Mich. 96; 235 N.W.2d 132 (1975), the Supreme Court reversed defendant Howell's conviction because he was not advised of this right. The Court explained:
"That right [to be presumed innocent until proven guilty] is at the core of our criminal process and fundamental to [the] defendant's understanding of a trial." Guilty Plea Cases, supra, p 125.
In People v Lawrence, 413 Mich. 866; 317 N.W.2d 856 (1982), the Court reversed the defendant's convictions "because he was not advised of the presumption of innocence". Accordingly, defendant's convictions are reversed.
We consider defendant's remaining allegations of error.
First, defendant contends that the trial court did not establish a sufficient factual basis for his felony-firearm conviction. Defendant was convicted of felony-firearm on an aiding and abetting theory. In People v Johnson, 411 Mich. 50, 54; 303 N.W.2d 442 (1981), the Supreme Court said:
"To convict one of aiding and abetting the commission of a separately charged crime of carrying or having a firearm in one's possession during the commission of a felony, it must be established that the defendant procured, counselled, aided, or abetted and so assisted in obtaining the proscribed possession, or in retaining such possession otherwise obtained. See People v Doemer, 35 Mich. App. 149; 192 N.W.2d 330 (1971); People v Francis, 71 Cal.2d 66; 450 P.2d 591; 75 Cal.Rptr. 199 (1969)."
A factual basis exists for a plea if an inculpatory inference can reasonably be drawn by a jury from the facts admitted by the defendant. Guilty Plea Cases, supra, p 130. At the plea-taking hearing, the defendant said:
"A friend of mine — me and a friend of mine thought it up, we went over to the friend's house because they had a gun. So we picked him up and we went over there and parked two blocks away and he went up and robbed the place, and then ran back." From these facts a reasonable juror could infer that the defendant aided and counselled in the procurement of the gun. We conclude a factual basis was established for defendant's felony-firearm conviction.
Second, defendant contends that the trial court erred in failing to grant his motion to quash the felony-firearm information on the ground that he could not have been convicted on this charge as an aider and abettor. We have just decided, however, that defendant could have been so convicted on his plea of guilty. The trial court, therefore, did not err in denying defendant's motion to quash.
Third, defendant contends that the trial court failed to establish a factual basis for armed robbery. Our review of the record indicates, however, that the defendant testified to facts from which a jury could reasonably conclude that defendant was guilty of this offense.
Fourth, defendant maintains that the trial court failed to advise him as to the names of the offenses to which he was pleading guilty as required by GCR 1963, 785.7(1)(a). At the plea-taking hearing the defendant's lawyer placed on the record the names of the offenses. The court then asked the defendant: "Is it your desire to plead guilty to these three specific charges they [the lawyers] have referred to?" We find that this satisfies the court rule.
Fifth, defendant argues that the trial court did not advise him of his right to remain silent as required by GCR 1963, 785.7(1)(g)(viii). Failure to so advise a defendant requires reversal. Guilty Plea Cases, supra, pp 120-121. The trial court advised the defendant:
"You know there was a time when a defendant didn't have a right to testify, but at this point in our law you do have a right to testify if you'd like. But if a person decides they'd rather not testify nobody can make a comment about that or draw a bad inference from the fact they decided not to testify. Do you understand that?"
The defendant was not told in explicit terms that he had the "right to remain silent". But an "imprecise recital" of the right is not fatal. Guilty Plea Cases, supra, p 122. The trial court's language conveys the idea that the defendant may choose whether or not to testify. We find that this is an adequate apprisal of the defendant's right to remain silent.
Sixth, the defendant contends that the trial court's failure to ask him whether he was threatened as required by GCR 1963, 785.7(2)(c)(ii) mandates reversal. The trial court did determine that defendant pled guilty voluntarily and such a determination need not be made "in any particular manner". Guilty Plea Cases, supra, p 126. Thus, we reject defendant's contention.
Finally, defendant avers that the trial court's failure to ask the prosecutor and defense counsel whether it had complied with GCR 1963, 785.7, subds (1)-(3), as required by GCR 1963, 785.7(4)(a), entitles him to reversal. In Guilty Plea Cases, supra, p 113, the Supreme Court announced that strict compliance with the court rule governing the acceptance of guilty pleas is not required. Whether a departure from the rule requires reversal or a remand depends "on the nature of the noncompliance". 395 Mich. 113. We do not believe that a failure to comply with GCR 1963, 785.7(4)(a) is the sort of noncompliance that warrants reversal. As a panel of this Court said in People v Love, 76 Mich. App. 379, 383; 256 N.W.2d 602 (1977): "No substantial right of the defendant is involved in such [a] requirement."
Reversed and remanded for proceedings consistent with this opinion.