Opinion
Docket No. 1,749.
Decided February 14, 1967.
Appeal from Recorder's Court of Detroit; Gillis (Joseph A.), J. Submitted Division 1 November 10, 1966, at Lansing. (Docket No. 1,749.) Decided February 14, 1967.
Michael Doran was convicted of attempted robbery unarmed. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Samuel H. Olsen, Prosecuting Attorney, Samuel J. Torina, Chief Appellate Lawyer, and Richard J. Padzieski, Assistant Prosecuting Attorney, for the people.
Joseph A. Powers, for defendant.
By his plea of guilty, defendant was convicted of attempted robbery unarmed, CL 1948, §§ 750.530 and 750.92 (Stat Ann 1954 Rev § 28.798 and 1962 Rev § 28.287), in recorder's court of Detroit, on December 2, 1963. Defendant was 19 years of age at the time. December 16, 1963, he was sentenced to prison for a term of 3-5 years. December 8, 1965, appellate counsel was appointed and claim of appeal was filed February 1, 1966. The claim of appeal was not proper (GCR 1963, 785.4[2] and 803.1), but we have considered it as a granted application for delayed appeal in order to dispose of the case.
The appeal raises 3 questions for decision, namely: at the time the defendant was brought before the magistrate on the complaint and warrant, did he have a constitutional right to be represented by counsel? Can alleged error on the part of the magistrate in binding defendant over for trial be raised on this appeal? Was the sentence given to defendant too severe?
CL 1948, § 766.4 (Stat Ann 1954 Rev § 28.922).
Defendant was represented by counsel at preliminary examination on a charge of robbery unarmed, CL 1948, § 750.530 (Stat Ann 1954 Rev § 28.798). The record does not disclose whether he was represented at arraignment in recorder's court on the same charge, but he stood mute and a plea of not guilty was entered on November 2, 1963. December 2, 1963, defendant withdrew his plea of not guilty and entered a plea of guilty to attempted robbery unarmed; at this time, he was represented by counsel.
Defendant cites no Michigan law in support of his claim that he has a constitutional right to be represented by counsel when brought before the magistrate on the complaint and warrant, and we are unable to find any such law. The first indication that defendant may have such a right appears in Escobedo v. Illinois (1964), 378 U.S. 478 ( 84 S Ct 1758, 12 L ed 2d 977), but defendant was convicted prior to June 22, 1964, and Escobedo does not apply. Johnson v. New Jersey (1966), 384 U.S. 719 ( 86 S Ct 1772, 16 L ed 2d 882).
People v. Dobine (1963), 371 Mich. 593, precludes defendant from now raising alleged prejudicial error on the part of the magistrate in binding defendant over for trial.
The sentence imposed by the trial judge was within the maximum provided by the statute and this Court does not have supervisory control over the punishment. People v. Pate (1965), 2 Mich. App. 66.
Affirmed.
FITZGERALD and T.G. KAVANAGH, JJ., concurred.