Opinion
Docket No. 47418.
Decided August 12, 1980.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert L. Kaczmarek, Prosecuting Attorney, and Linda B. Wright, Appellate Prosecuting Attorney, for the people.
Derrick A. Carter, Assistant State Appellate Defender, for defendant on appeal.
Defendant, Abel Ornelas, pled guilty to breaking and entering an unoccupied building with intent to commit larceny in violation of MCL 750.110; MSA 28.305. After defendant was sentenced to not less than two and one-half years nor more than 10 years in prison, he appeals as of right.
Defendant claims that he made an insufficient factual showing of guilt, specifically with respect to proof of breaking. The claim is without merit. Defendant said:
"On January 30th, Monday, Joe Vargas and me and my brother broke into a dry cleaners on Hess Street. We gained entrance through a door and then through a screen up on top of the building."
Defendant also claims that the district judge abused his discretion in binding defendant over for trial because there was no proof that defendant intended to commit larceny. Defendant then reasons that insufficient evidence to bind over is a defect that is not waived by a plea of guilty, citing People v Alvin Johnson.
396 Mich. 424; 240 N.W.2d 729 (1976).
While some of the dicta in Johnson might indicate otherwise, we do not agree that an error on the bind-over can never be waived by a plea of guilty where no effort is made on the record to preserve for appeal an alleged abuse of discretion on the bind-over. As noted in People v McIntyre, any contrary rule would lead to one of two results:
74 Mich. App. 661, 665; 254 N.W.2d 603 (1977).
"(1) Prior to accepting every plea of guilty each trial judge would have to review the magistrate's decision to bind the defendant over, or;
"(2) This Court would be placed in the position of the circuit court in reviewing preliminary examination findings despite the defendant's failure to raise the issue below."
Seeking to avoid these results, this Court has held that the issue of the sufficiency of the evidence to bind over is waived by failure to raise it below and, similarly, that the issue of the sufficiency of the proof of the corpus delicti is waived where the defendant has waived preliminary examination and never raised the issue below.
People v McIntyre, supra, People v Hill, 86 Mich. App. 706, 712-713; 273 N.W.2d 532 (1978).
People v Peterson, 90 Mich. App. 345, 347-348; 282 N.W.2d 315 (1979).
The question of whether a circuit court has jurisdiction to entertain a defendant's plea where there had not been a valid preliminary examination has also been found to have been waived by the defendant's plea.
People v Hall, 97 Mich. App. 143; 293 N.W.2d 742 (1980).
However, in this case, it is unnecessary to decide whether or not an alleged error on the bind-over is waived by a plea of guilty because we find no abuse of discretion in the bind-over. The proofs show defendant was apprehended inside of the cleaning establishment, that entry had been made through a shaft in the ceiling by pushing a screen, that defendant was hiding under a pile of clothes, and that clothing had been bagged up near the shaft. From these proofs, there was no abuse of discretion in inferring an intent to commit larceny. This evidence supported binding defendant over for trial.
People v Lambo, 8 Mich. App. 320; 154 N.W.2d 583 (1967), People v Dale Wilson, 27 Mich. App. 395; 183 N.W.2d 626 (1970), People v Thompson, 41 Mich. App. 272; 199 N.W.2d 859 (1972).
Affirmed.