People v. Atcher

• Decision Date: 05 December 1974
• Docket Number: No. 2,Docket No. 17798,2
• Citation: 57 Mich.App. 148,226 N.W.2d 77
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John Sherman ATCHER, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 77

226 N.W.2d 77

57 Mich.App. 148

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John Sherman ATCHER, Defendant-Appellant.

Docket No. 17798.

Court of Appeals of Michigan, Division No. 2.

Dec. 5, 1974.

Rehearing Denied Jan. 13, 1975.

Released for Publication Feb. 20, 1975.

James R. Neuhard, State App. Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Bruce A. Barton, Pros. Atty., for plaintiff-appellee.

Before QUINN, P.J., and BASHARA and VanVALKENBURG,* JJ.

BASHARA, Judge.

Defendant, on April 17, 1973, pled guilty to attempted possession of methadone. M.C.L.A. § 335.341; M.S.A. § 18.1070(41); M.C.L.A. § 750.92; M.S.A. § 28.287. Defendant, who was already imprisoned, was sentenced to a consecutive term of 1 to 2 years, and appeals.

Defendant, Inter alia, argues that the trial court failed to establish a factual basis to the crime pled. The record reveals the following colloquy between defendant and the bench.

'The Court: Now, on or about the 19th day of February, 1973, at the Township of Blackman in this Courty, did you attempt to knowingly or intentionally possess methadone?

'The Defendant: Yes.

'The Court: Did you know methadone is a narcotic drug?

'The Defendant: Yes.

'The Court: And did something happen here that, in this attempt, that you were intercepted and prevented in the attempted possession of it?

'The Defendant: Yes.

'The Court: All right, the Court will accept your plea of guilty, and this matter will be referred to the probation department for presentence investigation.'

Prior to and after the enactment of GCR 1963, 785.7(3), a valid guilty plea requires the plea-taking judge to elicit facts on the record showing that the crime charged has been committed and that the defendant committed it. People v. Barrows, 358 Mich. 267, 99 N.W.2d 347 (1959); People v. Williams, 386 Mich. 277, 192 N.W.2d 466 (1971); People v. Schneff, 392 Mich. 15, 219 N.W.2d 47 (1974). It is also well established that placing the burden on the defendant to know whether he is legally guilty is impermissible. People v. Taylor, 387 Mich. 209, 195 N.W.2d 856 (1972).

We cannot determine on this record whether an attempt to commit a crime occurred. In People v. Coleman, 350 Mich. 268, 276--277, 86 N.W.2d 281, 285 (1957), Justice Talbot Smith, speaking for a unanimous Court and citing several authorities stated:

"Mere intention to commit a specified crime does not amount to an attempt. People v. Stites, supra (75 Cal. 570, 17 P. 693). Preparation alone is not sufficient. 'Something more is required than mere menaces, preparation or planning.' 30 C.J., 13. 'The preparation consists in devising or arranging the means or measures necessary for the commission of the offense; the attempt is the Direct movement towards the commission after the preparations are made. * * * Therefore, the act must reach far enough towards the accomplishment of the desired result to amount to the commencement of the consummation.' 8 R.C.L. pp. 278, 279. '(T)here must be at least some appreciable fragment of the crime committed, and it must be in such progress that it will be consummated unless interrupted by circumstances independent of the will of the attempter.' Wharton's Criminal Law, 12th ed. vol. 1, p. 280. * * *"

See People v. Miller, 2 Cal.2d 527, 530--532, 42 P.2d 308, 98 A.L.R. 913.

'Attempt,' as defined by Webster's Seventh New Collegiate Dictionary, is 'to make an effort' or 'to try' something. When defendant was asked '* * * did something happen...