Opinion
Docket No. 43521.
Decided October 22, 1980.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief Appellate Attorney, and Thomas S. Richards, Assistant Prosecuting Attorney, for the people.
Stewart L. Young, for defendant on appeal.
Before: MacKENZIE, P.J., and BASHARA and D.C. RILEY, JJ.
Defendant was charged with two counts of assault with intent to murder, MCL 750.83; MSA 28.278, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). On January 9, 1978, she pled guilty to the felony-firearm count and a lesser charge of felonious assault, MCL 750.82; MSA 28.277. On January 18, 1978, the trial court sentenced defendant to consecutive terms of imprisonment of two to four years on the felonious assault conviction with credit for 117 days served and two years on the felony-firearm conviction. Defendant appeals by leave granted.
Defendant's allegations of error all relate to the procedure to be followed by the trial court before accepting a guilty plea under GCR 1963, 785.7. Failure to advise defendant of probation and parole consequences is harmless as this was her first offense and she was not on probation or parole. See Guilty Plea Cases, 395 Mich. 96, 128; 235 N.W.2d 132 (1975). Nor does the trial court's failure to inform defendant that her plea subjected her to sentence enhancement as an habitual offender require reversal. Since defendant had not previously been convicted of a felony, her guilty plea herein could not be used to trigger the habitual offender statute and there was no duty to so inform her. People v Sickmiller, 87 Mich. App. 332, 334; 274 N.W.2d 57 (1978).
Defendant's contention that she was not informed that she was relinquishing the rights she would have at trial is not supported by the record of the plea proceeding. We are satisfied that defendant was informed of her Jaworski rights and that there was substantial compliance with GCR 785.7(1)(g). See Guilty Plea Cases, supra, 124.
People v Jaworski, 387 Mich. 21; 194 N.W.2d 868 (1972).
Finally, defendant contends that there was an insufficient factual basis on the record to support her plea to the felonious assault and felony-firearm charges. At the plea proceeding defendant stated that she had signed a statement, which was admitted into evidence, that "[t]he gun discharged upon hitting the wall while it was pointed in my husband's direction". Additionally, the following colloquy ensued between defendant and the trial court:
"THE COURT: Well it says here that you had a gun and that it was pointed in your husband's direction. And it was in your hands, * * * and it discharged and struck him; is that right?
"THE DEFENDANT: No. It did not strike him. It discharged as it struck the wall.
"THE COURT: I see. What you wrote here is true?
"THE DEFENDANT: Yes, it is."
In reviewing the adequacy of the factual basis for a guilty plea, the requisite inquiry is whether a trier of fact could properly convict on the facts as stated by the defendant. "A factual basis for acceptance of a plea exists if an inculpatory inference can reasonably be drawn by a jury on the facts admitted by the defendant. The fact that an exculpatory inference could also be drawn is immaterial." People v Spry, 74 Mich. App. 584, 593-594; 254 N.W.2d 782 (1977), citing Guilty Plea Cases, supra, and People v Haack, 396 Mich. 367; 240 N.W.2d 704 (1976).
Initially, we note the reluctance of our courts to rely on a written statement of a defendant purporting to waive his constitutional rights or establish a factual basis for the charge. See Guilty Plea Cases, supra, People v Schneff 392 Mich. 15, 25-26; 219 N.W.2d 47 (1974) (plurality opinion), People v Napier, 69 Mich. App. 46; 244 N.W.2d 359 (1976). The court rule itself provides that "[i]f 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". GCR 1963, 785.7(3)(a).
In the case at bar, defendant argues that the record does not indicate that she intended to commit the crime of felonious assault. Felonious assault is a general intent crime. The intent necessary is that required in a simple assault: either an attempt to injure or an intent to put the victim in reasonable fear and apprehension of an immediate battery. People v Joeseype Johnson, 407 Mich. 196, 210; 284 N.W.2d 718 (1979).
Although the question here is close, we do not believe the record established that defendant aimed the gun at her husband with the intent to injure him or the intent to put him in fear of an immediate injury. The facts as recited by defendant show only that the gun happened to be pointed in her husband's direction and discharged upon hitting the wall. She did not testify regarding her husband's reaction to the shot.
On remand, the procedure established in Guilty Plea Cases, supra, 129, should be followed. What must be clarified is whether defendant aimed the gun in her husband's direction and attempted to injure him or put him in reasonable fear of an immediate battery. If that is the case, defendant's convictions should be upheld. But, if it is shown only that the gun accidentally discharged while not intentionally aimed at the victim, both of defendant's convictions must be reversed.
Remanded for proceedings in accordance with this opinion.
D.C. RILEY, J., concurred.
I respectfully dissent. The majority concedes that the facts show the gun was pointed in the direction of defendant's husband when it was discharged.
In adducing facts necessary to validate a guilty plea, it is not necessary that defendant be found guilty beyond a reasonable doubt. The Supreme Court clearly enunciated the requirements in Guilty Plea Cases, 395 Mich. 96, 130; 235 N.W.2d 132 (1975), wherein it was stated:
"A factual basis for acceptance of a plea exists if an inculpatory inference can reasonably be drawn by a jury from the facts admitted by the defendant even if an exculpatory inference could also be drawn and defendant asserts the latter is the correct inference."
The majority infers that a crucial element in the matter is the reaction of defendant's husband to the shot. That appeared to be an important consideration in People v Victor (Guilty Plea Cases), supra, 131. However, in that case, the gun was fired into the air, not pointed directly at the possible victim.
Based on the foregoing, I would affirm defendant's plea-based conviction.