People v. Brown
| Decision Date | 02 April 1980 |
| Docket Number | Docket No. 44574 |
| Citation | 293 N.W.2d 632,96 Mich.App. 565 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John BROWN, Defendant-Appellant. 96 Mich.App. 565, 293 N.W.2d 632 |
| Court | Court of Appeal of Michigan — District of US |
[96 MICHAPP 567] David M. Hess, Sterling Heights, Martin J. Beres, Grosse Pointe Woods, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., George N. Parris, Pros. Atty., Robert J. Berlin, Asst. Pros. Atty., for plaintiff-appellee.
Before KELLY, P. J., and CAVANAGH and ELLIOTT, * JJ.
After a preliminary examination, the defendant was bound over on five Counts:
Count 1. Armed robbery of money from the assistant store manager, Mr. Cubba;
Count 2. Armed robbery of a purse from an employer, Cathy Niver;
[96 MICHAPP 568] Count 3. Armed robbery of a wallet from another employee;
Count 4. Possession of a firearm when committing a felony; and
Count 5. Carrying a pistol in a car without a license.
As a result of plea bargaining, defendant was allowed to plead guilty to Count 1 with a sentence concession that the maximum sentence would not exceed 20 years and with the further understanding that he would not be charged as an habitual offender and that Counts two through five would be dismissed upon his sentence.
There is no claim that GCR 1963, 785.7 was not fully complied with except as to the factual basis for the plea. In his answers to the court's questions, the defendant said that he and a woman entered the store by the front door on the day in question while two men "came through the back door and pronounced a stickup and I went behind the counter and took Cathy Knight's purse and left". The transcribed name "Knight" is a mistake; he said or meant "Niver". He admitted that the other men had guns, and that when he entered the store he did so with the intent to steal and rob somebody of some money.
The judge who had accepted the plea and sentenced the defendant to a term of ten to twenty years retired about 60 days later. Defendant filed a motion to withdraw his plea contending that there was an inadequate factual basis for his plea to Count 1; an armed robbery of money from the presence of Mr. Cubba. The prosecutor conceded that defendant's narration was insufficient and asked for an opportunity to present evidence to show that Mr. Cubba was robbed. A visiting judge scheduled a hearing and expressed his opinion [96 MICHAPP 569] that the missing factual element would have to be supplied by the defendant, but the prosecutor notified defense counsel that another witness would be called. The retired judge's successor permitted Mr. Cubba to testify over objection.
Mr. Cubba testified that the defendant came through the front door and was followed by a woman while a man entered by the back who announced it was a robbery. Mr. Cubba heard a gunshot in back and was directed by the man in back to go to the rear of the store where another man with a gun told him to lie on the floor where he stayed until he was made to go to the safe in front and to open it. He saw one of the men, not defendant, take the money bag out of the safe.
The defendant did not testify at the hearing. After conferring, his lawyer informed the court that defendant stands by what he said at the time of his plea "and he does not wish to state anything further".
The judge ruled that Mr. Cubba's testimony, considered with defendant's statements at the time of his plea, showed that Mr. Cubba had been robbed by armed men and that defendant was a knowing participant in the robbery. He observed that since defendant declined to say anything, there was no contrary evidence.
The court denied the request of defense counsel for a delay while he interviewed the other robbers, who were imprisoned after guilty pleas, to see if he wished to call any of them as witnesses. The court also denied a claim that defendant was entitled to be resentenced.
OPINIONAlthough the prosecutor conceded that there [96 MICHAPP 570] was an insufficient recitation by defendant when he pled, we wonder whether this is really so. It is true that defendant was pleading guilty to Count 1, the armed robbery of Mr. Cubba, and that he did not state facts that established adequate support for a finding of guilt of that count. However, what defendant said with the inferences permitted by the Guilty Plea Cases, 395 Mich. 96, 235 N.W.2d 132 (1975), showed that defendant took a purse from Cathy Niver as an accomplice of the armed men and, therefore, was guilty of Count 2 which would be dismissed as a result of the plea bargain. GCR 785.7(3)(a) only requires:
"If the defendant pleads guilty, the court, by questioning him, shall establish support for a finding that he is guilty of the offense charged or the offense to which he is pleading. (Emphasis added.)
For example, a defendant with a bargain who pleads to an attempt usually will admit the completed felony with which he was originally charged because that is what he actually did.
Our Supreme Court has addressed the question of the proper procedure to follow when a plea is vacated and a case is remanded because of an inadequate factual basis. The Guilty Plea Cases, supra, say at p. 129, 235 N.W.2d at p.145:
.
[96 MICHAPP 571] At a hearing on a motion to withdraw a plea because a factual element is missing, the issue is the same as when the matter has been remanded by an appellate court. It should not matter in which court the relief is sought. In either case, the hearing is to supplement the plea-taking proceeding and to determine the accuracy of the plea. By contemplating that the missing element might be shown and contradicted by "contrary evidence" the Supreme Court obviously intended that other evidence could be offered by either side whether the defendant testified or not.
"Direct questioning is not an absolute. * * * where the judge makes a conscientious effort to establish a factual basis for a plea of guilty by direct questioning of the defendant, omissions in the record recital of the factual basis may be established in some other manner * * *."
Guilty Plea Cases, supra, page 134, 235 N.W.2d page 147, footnote 3. See also People v. Stewart, 69 Mich.App. 528, 245 N.W.2d 121 (1976).
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