Docket No. 9932.
Decided March 26, 1971. Leave to appeal denied, 385 Mich. 756.
Appeal from Oakland, Robert L. Templin, J. Submitted Division 2 March 2, 1971, at Grand Rapids. (Docket No. 9932.) Decided March 26, 1971. Leave to appeal denied, 385 Mich. 756.
Vernon A. Sharp was convicted, on his plea of guilty, of illegal possession of narcotics. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Thomas G. Plunkett, Prosecuting Attorney, and Frank R. Knox, Assistant Prosecuting Attorney, for the people.
Schnelz, Bulgarelli Allen (by Gary J. Allen), for defendant on appeal.
Before: FITZGERALD, P.J., and HOLBROOK and BRONSON, JJ.
On February 18, 1970, Vernon A. Sharp, defendant, was arrested and charged with sale of narcotics, a violation of MCLA § 335.152 (Stat Ann 1957 Rev § 18.1122). Subsequently, on March 13, 1970, while represented by counsel, defendant entered a plea of guilty to an added second count of possession of narcotics, a violation of MCLA § 335.153 (Stat Ann 1957 Rev § 18.1123). On May 15, 1970, he was sentenced to serve nine to ten years in prison. Defendant now appeals of right from an order of the trial court denying his motion to withdraw the plea.
The only question raised on this appeal is whether the trial court complied with the requirements of taking a guilty plea, as set forth in Boykin v. Alabama (1969), 395 U.S. 238 ( 89 S Ct 1709, 23 L Ed 2d 274). Specifically, we are concerned with the trial court's failure to advise defendant of his privilege against compulsory self-incrimination.
The Michigan Supreme Court recently addressed itself to an interpretation of the Boykin requirements in People v. Taylor (1970), 383 Mich. 338, 355, 356, which stated:
"The Court did not say, as some have suggested, that explicit and expressed waivers must be taken upon each of these constitutional rights before the plea can be accepted.
"The holding is more properly that these rights are waived by the act of entering the guilty plea, and it is for this reason that a record must be made upon the question of voluntariness."
The same reasoning and interpretation was also applied by this Court in People v. Jaworski (1970), 25 Mich. App. 540.
Therefore, in light of the above decisions as well as the record made in the taking of the present guilty plea, we conclude that defendant's plea was voluntarily and understandingly made. The failure of the trial court to mention the privilege against self-incrimination was not fatal.
HOLBROOK, J., concurred.
For reasons stated in my dissenting opinion in People v. Martin (1970), 29 Mich. App. 295, I would set aside defendant's plea and remand the case for new trial.
I cannot accept the position taken in the majority opinion in the instant case that People v. Taylor (1970), 383 Mich. 338, requires affirmance. The majority quotes from Justice T.E. BRENNAN'S opinion in Taylor. Justice BRENNAN'S opinion was signed by only one other justice. Two justices concurred in affirming the acceptance of Taylor's plea only because they held Boykin v. Alabama (1969), 395 U.S. 238 ( 89 S Ct 1709, 23 L Ed 2d 274), not to be retroactive. Three justices dissented in Taylor. As such, I do not consider the quoted portion of the Taylor opinion to be dispositive of the issue raised in the instant case.