People v. Loveday , 390 Mich. 711 ( 1973 )

390 Mich. 711 (1973) 212 N.W.2d 708

PEOPLE
v.
LOVEDAY

No. 5 November Term 1973, Docket No. 54,429.

Supreme Court of Michigan.

Decided December 18, 1973.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Edward R. Wilson, Assistant Prosecuting Attorney, for the people.

State Appellate Defender Office (by Judith K. Munger), for defendant on appeal.

M.S. COLEMAN, J.

Defendant offered a plea of guilty on October 12, 1971 to a charge of attempted gross indecency between male and female.^[1] The plea was accepted on December 14, 1971. Defendant was sentenced to a term of 4-5 years.

The Court of Appeals granted the people's motion to affirm defendant's conviction on September 28, 1972. It was their conclusion "that the questions sought to be reviewed are so unsubstantial as to need no further argument or formal submission."

Leave to appeal was granted on March 15, 1973. 389 Mich. 776.

It is defendant's claim that his sentence should be no greater than two and one-half years. He claims the gross indecency statute does not speak to attempts to commit an act of gross indecency. Therefore, his sentence should be governed by MCLA 750.92; MSA 28.287 which provides in part:

"Any person who shall attempt to commit an offense prohibited by law, and in such attempt shall do any act towards the commission of such offense, but shall fail in the perpetration, or shall be intercepted or prevented in the execution of the same, when no express provision is made by law for the punishment of such attempt, shall be punished as follows:

* * *

"2. If the offense so attempted to be committed is punishable by imprisonment in the state prison for life, or for 5 years or more, the person convicted of such attempt shall be guilty of a felony, punishable by imprisonment in the state prison not more than 5 years or in the county jail not more than 1 year;

"3. If the offense so attempted to be committed is punishable by imprisonment in the state prison for a term less than 5 years, or imprisonment in the county jail or by fine, the offender convicted of such attempt shall be guilty of a misdemeanor, punishable by imprisonment in the state prison or reformatory not more than 2 years or in any county jail not more than 1 year or by a fine not to exceed 1,000 dollars; but in no case shall the imprisonment exceed 1/2 of the greatest punishment which might have been inflicted if the offense so attempted had been committed."

Defendant claims the limitation found in paragraph 3 applies to the entire statute.

The people do not contest defendant's interpretation of MCLA 750.92. The gross indecency statute does punish attempts to procure acts of gross indecency. Defendant's activities are said to constitute an attempt to procure.

The people's position is untenable. At no time was defendant charged with an attempt to procure. The recognizance described the alleged offense as gross indecency between male and female persons. The information was similarly labeled as was the waiver of examination and the arraignment.

The court file contains a document where the prosecutor recommends acceptance of a plea to "Attempt [sic] Gross Indecency between Male & Female with a Max. Penalty of 2 1/2." At the proceeding where defendant pled guilty, the prosecution told the court that defendant agreed to plead to the above charge. However, the prosecution did say the penalty was 5 years not 2-1/2.

The file contains a document signed by the trial judge which shows a change of plea to guilty of "attempt [sic] gross indecency between male and female." Another document signed by the trial judge committed defendant to the state prison for "the crime of Attempted Gross Indecency Between Male and Female Persons." The same offense was shown on the warrant for defendant's removal to the state prison, which is also signed by the trial judge.

It is evident that defendant at no time was charged with an attempt to procure an act of gross indecency. His plea was to attempted gross indecency. This was his understanding, it was the prosecutor's understanding, it was the trial court's understanding. There is no ambiguity or confusion in this record.

As noted above, the people do not contest defendant's interpretation of the limitation found in paragraph 3 of MCLA 750.92. The only case to have directly addressed this question is O'Neil v People, 15 Mich. 275 (1867). Defendant was charged with attempted larceny from a person. Punishment for the completed offense was not more than five years in the state prison or not more than one year in the county jail. Defendant had been sentenced to a term of three years.

The Court, speaking through Justice CHRISTIANCY held the limitation in paragraph 3 applicable to all sections of the statute:

"We see no reason to doubt that such was the intention of the statute. The reasons for limiting the period of imprisonment for an attempt to commit an offense, to one-half that provided for the consummated offense, are, in our view, equally strong, in the cases provided for in the second subdivision as for applying the same limitation to those mentioned in the third, and this being so, there should be some plain reason furnished by the language of the statute, to confine the operation of the clause to the third subdivision only.

"We can discover nothing in the language of the provision or in the punctuation to thus confine it. On the other hand, the prohibition is general, and all the terms used apply equally well to both subdivisions, ``but in no case shall the punishment by imprisonment exceed,' etc. Had it been the intention to confine the operation of the clause to the cases of ``imprisonment' mentioned in the third subdivision, we should naturally have expected some indication of the intention thus to limit it, such as ``in no case mentioned in this subdivision,' or something of similar import." Defendant's sentence was limited to two and one-half years. This interpretation was adopted by the Attorney General at OAG, 1939-1940, p 57 (March 21, 1939).

As is often the case, we find the reasoning of Justice CHRISTIANCY persuasive. We reaffirm the holding of O'Neil. This case is remanded for resentencing in accordance with this opinion.

T.M. KAVANAGH, C.J., and T.E. BRENNAN, T.G. KAVANAGH, SWAINSON, WILLIAMS, and LEVIN, JJ., concurred with M.S. COLEMAN, J.

NOTES

[1] MCLA 750.338b; MSA 28.570(2) reads in part:

"Any male person who, in public or in private, commits or is a party to the commission of any act of gross indecency with a female person shall be guilty of a felony, punishable as provided in this section. * * * Any person who procures or attempts to procure the commission of any act of gross indecency by and between any male person and any female person shall be guilty of a felony punishable as provided in this section. Any person convicted of a felony as provided in this section shall be punished by imprisonment in the state prison for not more than 5 years, or by a fine of not more than $2,500.00 * * *."