People v. Hammond, Docket No. 107366

• Decision Date: 22 January 1991
• Docket Number: Docket No. 107366
• Citation: 187 Mich.App. 105,466 N.W.2d 335
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Frederick HAMMOND, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 335

466 N.W.2d 335

187 Mich.App. 105

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Frederick HAMMOND, Defendant-Appellant.

Docket No. 107366.

Court of Appeals of Michigan.

Submitted Nov. 15, 1990, at Detroit.

Decided Jan. 22, 1991, at 9:25 a.m.

Released for Publication March 25, 1991.

Gerald M. Lorence, Detroit, for defendant-appellant.

Before GRIFFIN, P.J., and SAWYER and BRENNAN, JJ.

GRIFFIN, Presiding Judge.

Defendant appeals as of right from the denial by the Detroit Recorder's Court of his amended motion to withdraw his guilty pleas of second-degree murder and conspiracy to commit second-degree murder. Defendant was sentenced to concurrent terms of five to ten years in state prison for the convictions.

On appeal, defendant contends that his conviction of conspiracy to commit second-degree murder is infirm and must be vacated because there is no such criminal offense. We agree, and vacate the conviction and sentence for conspiracy to commit second-degree murder on the ground that the state has no legitimate interest in securing a conviction of a nonexistent offense.

I

At the outset, we note that our review is hampered by the failure of the Wayne County Prosecutor to file a brief. While in the future we may view such nonparticipation as a confession of error, in the instant case we choose to address the merits of the issues raised by the defendant.

Before this decision, there existed a conflict of authority within the Court of Appeals regarding whether conspiracy to commit second-degree murder is a lesser included offense of conspiracy to commit first-degree murder. A panel of this Court in People v. Owens, 131 Mich.App. 76, 84, 345 N.W.2d 904 (1983), followed dicta contained in People v. Hence, 110 Mich.App. 154, 170-171, 312 N.W.2d 191 (1981), in holding that conspiracy to commit second-degree murder is a lesser included offense of conspiracy to commit first-degree murder.

Subsequent panels, however, have disagreed with Owens, and have held that conspiracy to commit second-degree murder does not exist as a criminal offense. People v. Gilbert, 183 Mich.App. 741, 455 N.W.2d 731 (1990). People v. Fernandez, 143 Mich.App. 388, 392-396, 372 N.W.2d 567 (1985); People v. Jackson, 114 Mich.App. 649, 665-667, 319 N.W.2d 613 (1982); People v. Hamp, 110 Mich.App. 92, 102-103, 312 N.W.2d 175 (1981).

We agree with these later authorities and are persuaded by the following reasoning contained in People v. Gilbert, supra, 183 Mich.App. at 749-750, 455 N.W.2d 731:

Criminal conspiracy is a specific intent crime which arises from a mutual agreement between two or more parties to do or accomplish a crime or unlawful act. People v. Atley, 392 Mich 298, 311; 220 NW2d 465 (1974). The gist of a criminal conspiracy is the specific, mutual agreement to perform the crime in question; the conspiracy statute provides punishment for the actual advance planning and agreement to perform the substantive criminal acts. Id. However, second-degree murder is distinguishable from first-degree murder in that it does not require premeditation and in fact may not require a specific intent to kill. MCL 750.316; MSA 28.548, MCL 750.317; MSA 28.549; People v. Aaron, 409 Mich. 672, 728-729; 299 NW2d 304 (1980).

In Hamp, supra, 110 Mich.App. at p. 103, 312 N.W.2d 175, the Court reasoned:

"Since prior 'planning' and 'agreement' are necessary, mandatory requisite elements of the crime of conspiracy, we find it analytically consistent to 'plan' to commit first-degree murder but logically inconsistent to 'plan' to commit second-degree murder. To prove a conspiracy to commit murder, it must be established that each of the conspirators have [sic] the intent required for murder and, to establish that intent, there must be foreknowledge of that intent. Foreknowledge and plan are compatible with the substantive crime of first-degree murder as both the crime of conspiracy and the crime of first-degree murder share elements of deliberation and premeditation. Prior planning denotes premeditation and deliberation. The elements of conspiracy, conversely, are incompatible and inconsistent with second-degree murder. One does not 'plan' to commit an 'unplanned' substantive crime. It is not 'absence' of the elements but the 'inconsistency' of the elements which lead [sic] us to conclude that one conspires to commit first-degree murder but not second-degree murder."

Because of this logical inconsistency, we conclude as a matter of law that there is no crime of conspiracy to commit second-degree murder. We therefore vacate defendant's conviction and sentence for conspiracy to commit second-degree murder.

We, like the panel in Gilbert, reject People v. Owens, and hold that conspiracy to commit second-degree murder is not a criminal offense because such a conspiracy is logically inconsistent.

II

The next subissue is whether the state has a legitimate interest in securing a plea-based conviction of a fictional offense. Unlike Gilbert, the instant case involves a plea rather than a jury conviction.

We are cognizant of the fact that this Court on two prior occasions has permitted pleas of guilty of nonexistent offenses. In People v. Hooper, 58 Mich.App. 132, 227 N.W.2d 250 (1975), this Court affirmed a plea-based conviction of "attempted uttering and publishing," which this Court conceded was "an offense not proscribed by law." In affirming the conviction, this Court stated:

We write to the proposition that a bargained plea to an alleged non-existent or paradoxical offense must be vacated because there is no such offense for two reasons.

First, the contention should be, and we hope is, consigned to oblivion. The idea that one who makes a bargain for his own benefit can be released from that bargain because what he bargained for is a non-existent crime is repugnant to any sense of justice, fairness and common sense. If the language, "shall affirmatively appear that the error complained of has resulted in a miscarriage of justice", of MCL 769.26; MSA 28.1096 has any meaning left, it surely applies to the contention now before us, and we so hold.

We recognize that People v. Collins, 380 Mich. 131; 156 N.W.2d 566 (1968), did not involve a bargained plea and is otherwise factually dissimilar to this case of Hooper. However, at page 135 of that opinion is found language which best expresses our reason for holding that defendant's contention is untenable:

"If there is any miscarriage of justice, under these circumstances it can only be one in which the people of the State of Michigan have exacted an insufficient penalty. Putting it another way, if there has been, under these circumstances, a miscarriage of justice, it is a miscarriage which ran to the benefit of the defendants and to the detriment of the people. Of such a miscarriage of justice, only the people can complain." [Id. 58 Mich.App. at 133-134, 227 N.W.2d 250.]

Later, in People v. LeBlanc, 120 Mich.App. 343, 327 N.W.2d 471 (1982), the rationale of Hooper was followed in affirming a plea-based conviction of "attempted felonious assault." In dismissing the defendant's argument that the lower court should not have accepted his plea because he had not pled guilty of any "crime" recognized in Michigan, the Court said:

While we do not retreat from disapproval of such made-for-bargain charges, any detriment runs to the people and the benefit runs to the defendant. Defendants should not complain when they receive precisely what they bargained for. No prejudice is shown and no reversible error is found. [Id. at 346, 327 N.W.2d 471.]

We are normally persuaded by the argument that the defendant may not complain on appeal of receiving the benefit of his bargain. See People v. Vitale, 179 Mich.App. 420, 422, 446 N.W.2d 504 (1989). In this instance, however, the state never possessed a legitimate interest in securing defendant's conviction of the fictional "crime."

In People v. Richard Banks, 51 Mich.App. 685, 216 N.W.2d 461 (1974), we held that it was error for the prosecutor to charge the defendant with the nonexistent offense of "attempted felonious assault." In reversing the defendant's conviction, this Court said the following in a footnote concerning the practice of accepting pleas of guilty of nonexistent offenses:

A corollary error is created when prosecutors accept guilty pleas to the nonexistent offense of attempted felonious assault. We are aware of People v. Milton, 36 Mich.App. 702; 194 N.W.2d 1 (1971), but reject any intimation from this decision that a crime of attempted felonious assault exists which may be charged by the prosecutor in his discretion. In the future prosecutors must refrain from bargaining for guilty pleas to this nonexistent offense which could not be charged in the first instance. [Id. 51 Mich.App. at 690, n. 8, 216 N.W.2d 461. Emphasis added.]

Although not articulated in Hooper and LeBlanc, it must be assumed that, under the "bargained-for-benefit" analysis, these panels concluded that a defendant may not appeal a plea-based conviction of a nonexistent offense because all defenses to the conviction were relinquished by operation of the plea bargain. Such a conclusion, however, was rejected by our Supreme Court in People v. New, 427 Mich. 482, 491-492, 398 N.W.2d 358 (1986), which quoted with approval the following portion of Justice Moody's concurring opinion in People v. White, 411 Mich. 366, 397-398, 308 N.W.2d 128 (1981):

A literal interpretation of the language of Menna [v. New York, 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975) ] and Blackledge [v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974) ] might allow a defendant to preserve a wide variety of defenses in spite of his guilty plea. However, the spirit of those cases, and respect for the state's interest in the finality of conviction and judicial economy as reflected in the guilty-plea procedure, undercuts the wisdom of such a construction. Further, the underlying...