People v. LeBlanc

• Decision Date: 06 January 1983
• Docket Number: Docket No. 58310
• Citation: 120 Mich.App. 343,327 N.W.2d 471
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Linda Ann LEBLANC, Defendant-Appellant. 120 Mich.App. 343, 327 N.W.2d 471
• Court: Court of Appeal of Michigan — District of US

Page 471

327 N.W.2d 471

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Linda Ann LEBLANC, Defendant-Appellant.

Docket No. 58310.

120 Mich.App. 343, 327 N.W.2d 471

Court of Appeals of Michigan.

Submitted June 17, 1982.

Decided Oct. 7, 1982.

Released for Publication Jan. 6, 1983.

[120 MICHAPP 344] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., William L. Cahalan, Pros. Atty., Edward R. Wilson, Deputy Chief, Appellate Asst. Pros. Atty., Civil and Appeals, and Jeffrey Caminsky, Asst. Pros. Atty., for the People.

Odette & Prendeville by Mark T. Prendeville, Royal Oak, for defendant-appellant on appeal.

Before V.J. BRENNAN, P.J., and RILEY and PAYANT, ^* JJ.

PER CURIAM.

Defendant was charged with felonious assault, M.C.L. Sec. 750.82; M.S.A. Sec. 28.277. The information charged the defendant with making threats to a police officer with a pocket knife. At an arraignment before the circuit judge, a plea bargain was put on the record whereby defendant [120 MICHAPP 345] was permitted to offer a plea of guilty but mentally ill to a charge of attempted felonious assault.

The guilty plea was accepted and the defendant was sentenced to a term of 1 to 2 years with the Michigan Corrections Commission, the prison commitment to include the mental health services required by the conviction of guilty but mentally ill statute. From this conviction and sentence, defendant appeals of right.

Three issues are raised in her appeal. First, defendant claims the court erred in accepting a guilty plea to a charge of attempted felonious assault.

She relies on People v. Richard Banks, 51 Mich.App. 685, 216 N.W.2d 461 (1974). In Banks, this Court held that there can be no attempt to assault and that it was reversible error to charge a jury with such a "crime".

While not an issue in the Banks case, the Court, in a footnote, suggested:

"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 NW2d 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., p. 690, n. 8, 216 N.W.2d 461.

Dissenting from his colleagues in Banks, Judge Brennan stated at page 692, 216 N.W.2d 461: "Prudence demands that in the future trial courts should refrain from charging on an attempted assault situation."

In the instant case, the prosecutor disregarded the advice of Banks and the trial court proceeded [120 MICHAPP 346] to accept a guilty plea to the charge agreed upon between the prosecution and defense. The issue here is whether this constituted reversible error.

We hold that it was not reversible error. Unlike the case here, Richard Banks was convicted at a jury trial in which the charges of felonious assault and of attempted felonious assault were submitted to the jury. Here, defendant freely tendered a guilty plea, pursuant to a plea bargain. Hence, the cases, despite the admonitions found in the dicta in People v. Banks, are simply not comparable.

More on point is People v. Hooper, 58 Mich.App. 132, 227 N.W.2d 250 (1975), in which the defendant pled guilty to a bargained-for charge of attempted uttering and publishing. In response to defendant Hooper's claim of reversible error because the trial court accepted his plea to "an offense not proscribed by law", this Court stated at pages 133-134, 227 N.W.2d 250:

"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 MCLA 769.26; MSA 28.1096 has any meaning left, it surely applies to the contention now before us, and we so hold."

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.

The second issue on appeal is a claim that the trial judge imposed sentence without an up-to-date [120 MICHAPP 347] presentence report. Plaintiff is correct that a felony sentence is to be imposed only after the judge has reviewed a current presentence report and that the requirement cannot be waived. People v. Brown, 393 Mich. 174, 224 N.W.2d 38 (1974); People v. McDonald, 99 Mich.App. 150, 297 N.W.2d 639 (1980).

Contrary to defendant's claim, however, the record clearly shows that the trial judge did use a current presentence report. The trial judge stated:

"I am in receipt of a probation report on another matter which is updated, and with your consent, Mr. Yura, I can impose sentence in both cases."

Defense counsel responded:

"I've had the opportunity to read that report, and I'm satisfied with it, Your Honor."

Thus, compliance with the requirement concerning presentence reports is shown.

The final issue on appeal is that the court erred in disposing of another charge against the defendant, attempted burning of personal property over $100, in the same proceeding.

The record indicates that the clerk called two cases involving the defendant, Dockets No. 80 045 033 FZ and No. 81 103 936 FA. It was to the latter...