Opinion
Docket No. 7,355.
Decided October 1, 1969.
Appeal from Recorder's Court of Detroit, Vincent J. Brennan, J. Submitted Division 1 August 26, 1969, at Lansing. (Docket No. 7,355.) Decided October 1, 1969.
Darryl McCurtis was convicted, on his plea of guilty, of murder in the second degree. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Samuel J. Torina, Chief Appellate Lawyer, and Arthur N. Bishop, Assistant Prosecuting Attorney, for the people.
Virginia Sobotka, for defendant on appeal.
Before: DANHOF, P.J., and McGREGOR and BRONSON, JJ.
Defendant was charged with murder in the first degree, CL 1948, § 750.316 (Stat Ann 1954 Rev § 28.548), and, after a preliminary examination, he was bound over to Recorder's Court where he subsequently entered a plea of guilty to murder in the second degree, CL 1948, § 750.317 (Stat Ann 1954 Rev § 28.549). This timely claim of appeal is grounded on three contentions of error. First, the preliminary examination failed to establish corpus delicti. Second, the trial court failed to comply with the requirements of CL 1948, § 768.35 (Stat Ann 1954 Rev § 28.1058), the examination of defendant having failed to reveal all of the elements of the crime. Third, the trial court failed to conduct a separate hearing to determine the degree of the crime pursuant to CL 1948, § 750.318 (Stat Ann 1954 Rev § 28.550). The plaintiff has filed a motion to affirm the conviction.
Alleged defects in the preliminary examination are waived upon the entry of a guilty plea. People v. Collins (1968), 380 Mich. 131. The trial court did examine the defendant as to the facts of the crime and his participation therein. People v. Stearns (1968), 380 Mich. 704. "The prosecution is under no obligation to prove anything during the examination by the court of one seeking to plead guilty." People v. Paul (1968), 13 Mich. App. 175, 177. Defendant does not contend that his plea was untruthful or involuntary. He does not assert his innocence.
"A convicted defendant no longer enjoys the presumption of innocence. (Citations omitted.) He has the burden of showing something more than technical noncompliance with a rule. Absent a showing of violation or denial of constitutional rights, he has the obligation of alleging in a motion to withdraw plea such facts as would, if true, substantiate a finding that there was noncompliance which resulted in a miscarriage of justice." People v. Winegar (1968), 380 Mich. 719, 733.
Defendant specifically pled guilty to murder in the second degree and, therefore, no hearing was necessary to determine the degree of the crime. People v. Grillo (1948), 319 Mich. 586; People v. Carl (1968), 11 Mich. App. 226.
The motion to affirm the conviction is granted.