People v. Westman

• Decision Date: 31 May 1974
• Docket Number: Docket No. 17525,No. 3,3
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. George James WESTMAN, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 169

220 N.W.2d 169

53 Mich.App. 662

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. George James WESTMAN, Defendant-Appellant.

Docket No. 17525.

Court of Appeals of Michigan, Division No. 3.

May 31, 1974.

Released for Publication July 24, 1974.

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

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Gary C. Hoffman, Pros. Atty., for plaintiff-appellee.

Before ALLEN, P.J., and T. M. BURNS and SMITH,* JJ.

PER CURIAM.

On June 21, 1971, defendant George James Westman pleaded guilty to larceny of property valued over $100. M.C.L.A. § 750.356; M.S.A. § 28.588. He was given a deferred sentence and subsequently placed upon probation. Probation was revoked on October 6, 1972, and defendant was sentenced to 2 1/2 to 5 years imprisonment with 53 days credit for time spent in the county jail. Defendant now appeals as of right, assigning several errors.

Defendant first contends that the trial court failed to establish the requisite factual basis for his plea of guilty of larceny of property over $100 when it failed to establish that the property stolen was worth over $100.

The information in this case charged defendant with feloniously stealing and carrying away one 1969 Honda Model Z--50A (minibike) of the approximate value of $150. At the time of the plea acceptance, June 21, 1971, the minibike was 2 years old and worth considerably less than its original selling price of approximately $250. Defendant claims that since there was no proof of value offered at any time during the guilty plea proceeding, his plea should be set aside and a new trial granted. In essence, defendant's argument is that the prosecution failed to establish the crime in which defendant participated due to the fact that if the minibike was worth $100 or less, he could have only been convicted of a misdemeanor, whereas if the minibike was worth more than $100, the crime is a felony.

The value of the property alleged to have been stolen is an essential element of the crime where, as here, it is the test differentiating felonies and misdemeanors. People v. Fuzi, 46 Mich.App. 204, 208 N.W.2d 47 (1973).

In People v. Fuzi, Supra, this Court considered this same issue and stated at p. 211, 208 N.W.2d at p. 51:

'We are next confronted with the failure of the record of the plea-taking to establish the value of the goods taken. Proof that the value of the goods was not less than $5 was an essential element of the felony charged. People v. Hanenberg, 274 Mich. 698, 265 N.W. 506 (1936); People v. Haynes, 36 Mich.App. 705, 193 N.W.2d 899 (1971). Statute and court rule require that before accepting a plea of guilty, the trial judge must satisfy himself that '* ** said plea was made freely, With full knowledge of the nature of the accusation, and without undue influence'. M.C.L.A. 768.35; M.S.A. 28.1058; GCR 1963, 785.3. (Emphasis supplied.)

'In this case, it appears that none of the participants in this guilty--plea proceeding had the requisite 'full knowledge of the nature of the accusation'. The description of the items taken, as enunciated in the information, raises doubts as to whether their aggregate value would amount to $5. On the record of this plea-taking, it is impossible to determine whether defendant was convicted of a 5-year felony or a 90-day misdemeanor. We conclude that the trial judge erred in failing to establish the crime in which defendant participated. People v. Taylor, 387 Mich. 209, 224, 195 N.W.2d 856 (1972); People v. Barrows, 358 Mich. 267, 272, 99 N.W.2d 347 (1959). See People v. Williams, 386 Mich. 277, 192 N.W.2d 466 (1971).'

Such is the case here. Proof that the value of the minibike was more than $100 was an essential element of the crime charged. The fact that the minibike was only worth $250 in 1969 when it was new, raises doubt as to whether its value in 1971 would exceed $100. As in Fuzi, supra, from the record of this plea-taking proceeding, we cannot determine whether defendant was convicted of a felony or a misdemeanor. Consequently, we also must conclude that the trial court committed error in failing to establish the crime in which defendant participated.

While our previous discussion effectively disposes of this case, we shall briefly comment on defendant's remaining allegations of error.

Defendant claims that consideration by the sentencing court of a prior conviction violated his constitutional rights and requires resentencing since defendant was not represented by counsel at that prior conviction. United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972). This contention is meritless in light of our decisions in People v. Gavin, 50 Mich.App. 743, 213 N.W.2d 758 (1973), and People v. Elaman, 51 Mich.App. 55, 214 N.W.2d 557 (1974). Defendant must first establish in a separate post-conviction action that his prior conviction is constitutionally infirm.

With respect to the use of defendant's juvenile record at sentencing, this issue has been decided...