
    PEOPLE v. BERRY
    Opinion op the Court
    1. Criminal Law—Procedure—Plea op Guilty.
    Guilty plea procedure is to be judged by whether essential justice was done and not by a schedule of inflexible requirements.
    2. Same—Plea op Guilty—Right to Counsel—Waiver op Counsel —Due Process.
    Conviction on plea of guilty by defendant without counsel, and without an express waiver of right to counsel, after being advised of his right to counsel, being told of his right to trial by judge or jury, and thereupon being asked how he pleads without asking if he wants counsel held, not reversible, an express waiver of counsel not being required for due process when defendant is aware of his right to counsel.
    Dissenting Opinion
    T. G. Kavanagh, P. J.
    3. Criminal Law-—Right to Counsel—Waiver op Counsel.
    
      Mere showing accused lenew of his right to counsel is not sufficient to show a waiver of counsel and it is a miscarriage of justice to convict a defendant upon plea of guilty unless defendant has counsel or has intelligently and affirmatively waived counsel.
    
    References por Points in Headnotes
    [1] 21 Am Jur 2d, Criminal Law § 484 et seq.
    
    
       21 Am Jur 2d, Criminal Law §§ 317, 480, 488.
    Appeal from Ingham, Salmon (Marvin J.), J.
    Submitted Division 2 December 7, 1966, at Lansing.
    (Docket No. 783.)
    Decided March 29, 1968.
    Application for leave to appeal filed April 17, 1968. Submitted on remand to Court of Appeals July 24, 1968. Decided December 2, 1968.
    
      Benjamin F. Berry was convicted on plea of guilty of breaking and entering in tbe nigbt time. Defendant appeals.
    Affirmed.
    
      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Donald L. Reisig, Prosecuting Attorney, and James R. Ramsey, Assistant Prosecuting Attorney, for the people.
    
      Abood, Abood & Abood, for defendant.
   McGregor, J.

In response to the Supreme Court’s remand order dated July 24, 1968, this Court has reconsidered on the merits the lower court’s acceptance of defendant’s guilty plea and our previous determination- setting aside that plea, as reported in 10 Mich App 469. By its recent decisions, the Supreme Court has held that guilty-plea procedure is not to be judged by an inflexible schedule of requirements, but rather by a determination of whether essential justice prevailed. See People v. Hobdy (1968), 380 Mich 686; People v. Dunn (1968), 380 Mich 693; People v. Stearns (1968), 380 Mich 704; and People v. Winegar (1968), 380 Mich 719. Defendant was aware of his right to counsel, and the absence of an express waiver of that right is not reversible error. Accordingly, we set aside our earlier decision reversing the trial court and affirm the conviction.

J. H. Gillis, J., concurred with McGregor, J.

T. G. Kavanagh, P. J.

{dissenting). In light of the determination of the United States Supreme Court in Johnson v. Zerbst (1938), 304 US 458 (58 S Ct 1019, 82 L Ed 1461) as reiterated in Moore v. Michigan (1957), 355 US 155 (78 S Ct 191, 2 L Ed 2d 167) and Carnley v. Cochran (1962), 369 US 506 (82 S Ct 884, 8 L Ed 2d 70) a mere showing that the accused knew of his right to counsel is not, in itself, sufficient to' show an intelligent and understanding waiver of counsel. In Carnley, supra, the • court said:

“Presuming waiver from a silent record is impermissible. The record must show, or there must he an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver.” (Emphasis added p 516.)

I cannot read People v. Hobdy (1968), 380 Mich 686; People v. Dunn (1968), 380 Mich 693; People v. Stearns (1968), 380 Mich 704; and People v. Winegar (1968), 380 Mich 719 to permit finding an “affirmative acquiescence”, and “affirmative waiver” of counsel as discussed in Carnley, supra, through a mere showing that the accused knew his right.

The trial court here interrupted defendant’s question, “if I pleaded guilty * * *” by insisting on -his plea. I find in this record no intelligent, understanding rejection of an offer of counsel as was required in Moore, supra and Carnley, supra.

Justice would be better served to let Benjamin P. Berry stand trial than read into this record a waiver of his constitutional right to counsel.  