People v. Hooper, Docket No. 19049
| Decision Date | 28 January 1975 |
| Docket Number | Docket No. 19049,No. 1,1 |
| Citation | 227 N.W.2d 250,58 Mich.App. 132 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Stanley Joe HOOPER, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
James R. Neuhard, State Appellate Defender, Detroit, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Arthur N. Bishop, Asst. Pros. Atty., for plaintiff-appellee.
Before QUINN, P.J., and BASHARA and MAHER, JJ.
Defendant was originally charged with uttering and publishing contrary to M.C.L.A. § 750.249, M.S.A. § 28.446. By agreement between defendant and the prosecuting attorney defendant pleaded guilty to the lesser-included offense of attempted uttering and publishing. He was sentenced and he appeals, asserting three alleged reversible errors, namely:
1. Denial of his request to withdraw his plea prior to its acceptance.
2. His plea was to an offense not proscribed by law.
3. The failure of the trial court to ascertain defendant's affirmative acknowledgment of the plea bargain.
If it were not for alleged error 2, Supra, we would affirm this conviction by memorandum opinion because the record is contrary to allegations 1 and 3.
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 M.C.L.A. § 769.26, M.S.A. § 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, at page 572 of 156 N.W.2d is found language which best expresses our reason for holding that defendant's contention is untenable:
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