PEOPLE v. KUCHULAN, 390 Mich. 701 (1973)

213 N.W.2d 95

No. 14 October Term 1973, Docket No. 54,506.Supreme Court of Michigan.
Decided December 18, 1973.

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Appeal from Court of Appeals, Division 1, Lesinski, P.J., and J.H. Gillis and Targonski, JJ., denying application for leave to appeal from Wayne, Richard M. Maher, J. Submitted October 4, 1973. (No. 14 October Term 1973, Docket No. 54,506.) Decided December 18, 1973.

John Kuchulan was convicted, on his plea of guilty, of aiding and abetting in the placing of an injurious substance with intent to destroy the

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property of another. Defendant’s application for delayed appeal denied. Defendant appeals. Affirmed.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney Dominick R. Carnovale, Chief, Appellate Department, and Arthur N. Bishop, Assistant Prosecuting Attorney, for the people.

State Appellate Defender Office (by John B. Phelps), for defendant on appeal.

LEVIN, J.

In People v Jaworski, 387 Mich. 21; 194 N.W.2d 868 (1972), this Court held it reversible error to accept a guilty plea without first informing the defendant “of each and all of the three constitutional rights [ — trial by jury, to confront one’s accusers, the privilege against self-incrimination — ] he waives on pleading guilty”.

Subsequently, this holding was codified in a court rule; the provisions of the court rule are “mandatory and failure to comply therewith constitutes reversible error”. GCR 1963, 785.7(1), (5).

People v McMillan, 389 Mich. 114; 204 N.W.2d 682 (1973), limite Jaworski to pleas taken after[1] June 2, 1969.

The question presented is whether the Jaworski rule applies to pleas of guilty during the course of a trial before the effective date, June 1, 1973, of amended rule 785.3-785.11. We hold that it does not.

A large number of courts have concluded that Justice Douglas’ statement in Boykin v Alabama, 395 U.S. 238; 89 S Ct 1709; 23 L Ed 2d 274 (1969),

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should not be read as imposing on the state or Federal courts as an absolute imperative in every case a requirement that a defendant be informed before he pleads guilty of the three constitutional rights mentioned in Justice Douglas’ opinion.[2]
We agree with that reading of Boykin.

Whether to require that this information be imparted as a precondition to the acceptance of a plea of guilty is a question of policy for this Court to decide, and not one of Federal constitutional law. We agree that a judge should be obliged to so inform a defendant pleading guilty as attested by our votes to adopt amended rule 785.3-785.11. We also accept the authority o Jaworski under the doctrine of stare decisis; the individual Justices of this Court, just as the other members of the profession, are bound by its decisions until a majority of the Court adopts a different view.

The rule of a case is, however, frequently less expansive than the reasoning and generalizations in the opinion of the Court Jaworski, like most cases, was decided in the context of the facts of that case.

In terms of the safeguards that should be erected against improvident pleas of guilty, we see a significant difference between a plea of guilty offered at arraignment or at a similar relatively summary hearing and a plea of guilty offered after the empaneling of a jury and the taking of testimony. While this Court did not choose to make this distinction in the application of amended rule 785.3-785.11 — which applies without regard to

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whether the plea is offered during the course of a trial or before a trial — such a distinction may nevertheless properly be drawn, especially as to pleas taken before this Court reversed the Court of Appeals in Jaworski.[3]

The record shows that this was a well-advised, knowing plea of guilty and that vacation of the plea is not justified. There is no need to extend Jaworski’s per se rule to pre-Jaworski, pre-amended rule 785.3 — 785.11 cases. In a case where the record less clearly establishes that the plea was not improvident, the Court of Appeals and we can, in application of the essentially subjective approach we would follow in dealing with the relatively few cases that fall into this category, vacate the plea and order the case set for immediate trial.

Nothing is certain in this life, but I am more convinced than I am likely to be about most things that come before us, that the defendant Kuchulan would not have changed his mind about pleading guilty if the judge had told him before accepting his plea that he would not be obliged to testify if he chose to proceed with the trial.

If the trial had continued, unless Kuchulan testified and offered a very good explanation for his presence near the place where his codefendant was found by the police attempting to cut open a safe with an acetylene torch, he was bound to be convicted. Informing Kuchulan of his right to remain silent in the face of the clear evidence of his guilt could not have been viewed by him, apparently a rational man, as a ray of hope.

The failure to establish by direct questioning of

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Kuchulan the crime[4] and his participation in its commission does not require vacation of his plea of guilty since the already presented people’s evidence clearly established Kuchulan’s participation and permitted the judge to make a “reasonable ascertainment of the truth of the plea”. People v Barrows, 358 Mich. 267, 272; 99 N.W.2d 347 (1959). See People v Armstrong, 390 Mich. 693; 213 N.W.2d 190 (1973). Affirmed.

T.E. BRENNAN and T.G. KAVANAGH, JJ., concurred with LEVIN, J.

T.M. KAVANAGH, C.J., SWAINSON and WILLIAMS, JJ., concurred in the result.

I concur but do not endorse Jaworski, M.S. COLEMAN, J.

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