People v. Green

• Decision Date: 06 May 1983
• Docket Number: Docket No. 63332
• Citation: 332 N.W.2d 610,123 Mich.App. 563
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Thomas Neil GREEN, Defendant-Appellant. 123 Mich.App. 563, 332 N.W.2d 610
• Court: Court of Appeal of Michigan — District of US

Page 610

332 N.W.2d 610

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Thomas Neil GREEN, Defendant-Appellant.

Docket No. 63332.

123 Mich.App. 563, 332 N.W.2d 610

Court of Appeals of Michigan.

Submitted Dec. 7, 1982.

Decided Feb. 25, 1983.

Released for Publication May 6, 1983.

[123 MICHAPP 565] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Gerald L. White, Pros. Atty. and Mary C. Smith, Asst. Atty. Gen., for the People.

James R. Neuhard, State Appellate Defender by Stuart B. Lev, Detroit, for defendant-appellant.

Before BRONSON, P.J., and T.M. BURNS and ALLEN, JJ.

PER CURIAM.

On July 6, 1981, defendant pled guilty to transporting a female for the purpose of prostitution, M.C.L. Sec. 750.459; M.S.A. Sec. 28.714, and was sentenced to a term of from 5 to 20 years imprisonment. He appeals as of right.

Defendant first argues that the statute to which he pled guilty is unconstitutionally vague and overbroad. However, constitutional challenges on the basis of vagueness, other than those based on First Amendment rights, must be examined in the light of the case's particular facts. People v. Gilliam, 108 Mich.App. 695, 310 N.W.2d 843 (1981). Furthermore, for defendant to have standing to challenge the statute on overbreadth the statute must be "overbroad in relation to defendant's conduct. One may not constitutionally challenge a statute on grounds of overbreadth against him when the statute clearly applies". People v. Burton, 87 Mich.App. 598, 601, 274 N.W.2d 849 (1978). Defendant's hypotheticals for both constitutional attacks present some interesting problems. However, defendant's conduct clearly fits within the [123 MICHAPP 566] statute. He intentionally drove in his car a woman from Saginaw to Midland to place her into a house of prostitution. Whatever else the statute may or may not cover, it applies here. As such, defendant has no standing to argue either constitutional issue.

Defendant also argues that the statute is unconstitutional because it impermissibly discriminates on the basis of sex. However, the operative word in the statute is the word "person". As such, either men or women can violate this statute. Therefore defendant does not have standing to challenge this statute on an equal protection basis. In United States v. Garrett, 521 F.2d 444, 446 (CA8, 1975), the defendant appealed his Mann Act, 18 USC 2421, conviction claiming that it denied him equal protection of the laws because it applied only to transporting females and not to transporting males:

"The persons affected by a criminal statute are defendants. Garrett does not argue that similarly situated defendants are treated disparately on the basis of sex. * * * The statute may be violated by either males or females, it is thus sexually neutral and does not raise questions of an illegal classification."

Similar results have been reached in United States v. Bankston, 603 F.2d 528 (CA5, 1979); State v. Zaehringer, 280 N.W.2d 416 (Iowa, 1979); United States v. Smith, 574 F.2d 988 (CA9, 1978), cert. den. sub. nom. Komok v. United States, 439 U.S. 825, 99 S.Ct. 158, 58 L.Ed.2d 156 (1978) (construing Washington law); Ex Parte Groves, 571 S.W.2d 888 (Tex.Cr.App., 1978); United States v. Green, 554 F.2d 372 (CA9, 1977); People v. Sherrod, 50 Ill.App.3d 532, 8 Ill.Dec. 607, 365 N.E.2d 993 (1977); United States v. Caesar, 368 F.Supp. 328 (ED Wis., 1973), [123 MICHAPP 567] aff'd sub. nom. United States v. Harden, 519 F.2d 1405 (CA7, 1975).

Defendant next argues that the following factual basis elicited at his guilty plea is insufficient:

"THE COURT: All right. Tell me in your own words what happened which caused this Information to be filed against you?

"THE RESPONDENT: I transported a female on a trip I was making for the use of prostitution.

"THE COURT: And when did this occur?

"THE RESPONDENT: On or about February 10th, 1981.

"THE COURT: All right. And what was the name of this female person?

"THE RESPONDENT: Dawn M. Neer.

"THE COURT: And did you transport her in the County of Midland?

"THE RESPONDENT: Yes, sir.

"THE COURT: The purpose was to either place her in a house of prostitution or to get her into prostitution; is that right?

"THE RESPONDENT: Yes, sir.

"MR. RHEAD: I don't believe, Your Honor, he was going to get her into prostitution. I think he--Mr. Green knew that she was a prostitute and transported her for that purpose.

"THE COURT: All right.

"THE RESPONDENT: Yes.

"THE COURT: If he wants to tell me that, fine.

"THE RESPONDENT: Yes, sir.

"THE COURT: She was a prostitute, you transported her; is that right?

"THE RESPONDENT: Yes, sir.

"THE COURT: And for that purpose?

"THE RESPONDENT: Yes, sir."

Defendant argues that this recital was nothing more than just responding affirmatively to a legal conclusion as was condemned in People v. Atcher, [123 MICHAPP 568] 57 Mich.App. 148, 151, 226 N.W.2d 77 (1974): ¹ "Defendant's affirmative response required him to make a legal determination * * *." However, the present case presents more than just the legal determination based on three questions as in Atcher. A reasonable jury could have drawn an inculpatory inference from this factual basis and convicted defendant. People v. Haack, 396 Mich. 367, 240 N.W.2d 704 (1976); Guilty Plea Cases, 395 Mich. 96, 235 N.W.2d 132 (1975), cert. den. 429 U.S. 1108, 97 S.Ct. 1142, 51 L.Ed.2d 561 (1977). Here, defendant admitted to transporting Dawn Neer and to that fact that the object of that trip was for the purpose of prostitution. These statements constituted more than a mere admission that he was legally guilty.

Defendant next argues that he should be resentenced because the original presentence report did not comply with M.C.L. Sec. 771.14; M.S.A. Sec. 28.1144, which requires that the "report shall include a specific written recommendation for disposition". The presentence report in this case states:

"RECOMMENDATION

"If incarcerated, he should be given credit for twenty-two (22) days served.

"If placed on probation, the following special terms are suggested: * * *."

In failing to make any recommendation at all, this report does not comply with the statute. As such, this case is...