People v. Sheets , 138 Mich. App. 794 ( 1984 )

138 Mich. App. 794 (1984) 360 N.W.2d 301

PEOPLE
v.
SHEETS

Docket No. 73163.

Michigan Court of Appeals.

Decided November 7, 1984.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Paul F. Berger, Prosecuting Attorney, and K. Davison Hunter, Assistant Prosecuting Attorney, for the people.

Thomas H. Bissell, for defendant on appeal.

Before: BRONSON, P.J., and MacKENZIE and J.L. BANKS,^[*] JJ.

PER CURIAM.

Defendant appeals as of right his plea-based conviction of the charged offense of two counts of felonious assault, MCL 750.82; MSA 28.277. Defendant's plea of guilty to the two counts charged was pursuant to a plea bargain according to which the prosecutor agreed not to file a supplemental information charging defendant as a habitual offender.

Defendant's first claim on appeal is that the plea bargain was illusory since the prosecutor failed to file promptly any supplemental habitual offender information, thus precluding the prosecutor from proceeding with a habitual offender charge and rendering his promise not to file a supplemental information a nullity. Under the rule articulated in People v Shelton, 412 Mich 565; 315 NW2d 537 (1982), which is applicable to the present case, a supplemental habitual offender information is promptly filed if it is filed no more than 14 days after the defendant is arraigned or waives arraignment on the information charging the underlying felony, or before trial if the defendant is tried within that 14-day period. Defendant's plea of guilty was entered and accepted on the date scheduled for defendant's arraignment on the information. Hence, at the time defendant's plea was taken, the prosecutor still could have timely filed a supplemental habitual offender information. Defendant's plea bargain was not illusory in the sense that the prosecutor could not have met the prompt filing requirement. Compare People v Robinson, 117 Mich App 63; 323 NW2d 594 (1982).

Nevertheless, defendant argues that since filing of a supplemental information is a prerequisite to proceeding with a habitual offender charge, and since the prosecutor failed to file any supplemental information, the plea bargain was illusory. This contention is without merit. Were we to adopt defendant's reasoning, prosecutors would never be able, as part of a plea agreement, simply to promise not to file a supplemental habitual offender information; rather, prosecutors would be required to first file the supplemental information, even knowing that they intend to withdraw it later, and then promise to withdraw it. We do not believe a valid plea bargain requires such a useless formality. It is sufficient for the prosecutor to promise not to file a supplemental information, and the plea bargain is not illusory if, as in the instant case, the prosecutor could have timely filed the supplemental information when the defendant's plea is taken. Also, to hold the plea bargain to be illusory because of the prosecutor's failure to file the supplemental information would do violence to the terms of the plea bargain, since the obvious reason the prosecutor did not file the supplemental information was because he had promised not to do so.

Defendant's reliance on People v Martin, 100 Mich App 447, 459; 298 NW2d 900 (1980), and People v Griffis, 107 Mich App 764; 309 NW2d 583 (1981), is misplaced. To the extent those decisions interpreted the "prompt filing" requirement of People v Fountain, 407 Mich 96; 282 NW2d 168 (1979), to mean that the supplemental habitual offender information must be filed prior to the initiation of plea negotiations, People v Shelton, supra, has since clarified that Fountain did not purport to require filing of the supplemental information prior to initiation of plea bargaining. People v Robinson, supra, p 66. Indeed, even prior to the Supreme Court's clarifying Shelton decision, the holding in People v Martin that Fountain requires filing prior to commencement of plea negotiations, which holding was followed in People v Griffis, was repudiated as erroneous in People v Ruff, 108 Mich App 716, 724; 310 NW2d 852 (1981).

Defendant's second claim on appeal is that there was not an adequate factual basis for his guilty plea, GCR 1963, 785.7(3)(a), since there was no indication that defendant possessed the requisite criminal intent to support his conviction of felonious assault. The intent element for felonious assault, MCL 750.82; MSA 28.277, is "either an intent to injure or an intent to put the victim in reasonable fear or apprehension of an immediate battery". People v Joeseype Johnson, 407 Mich 196, 210; 284 NW2d 718 (1979). At the plea-taking proceeding, defendant first stated that while driving his car he saw two people emerge from between two parked cars, they ran out in front of his car, he slammed on the brakes, and the car then slid sideways toward the two people. Subsequently, the following exchange between the trial court and defendant occurred:

"The Court: But, before you did that [i.e., slammed on the brakes], were you intending to scare them?

"The Defendant: Yeah, I basically believe that's what my intentions were, to maybe get them out of the way of the front of the car. So, I could go on through to maybe scare them, yes.

"The Court: To not respond to their efforts as officers to stop you?

The Defendant: Yes."

This admission by defendant provided an adequate factual basis as to the requisite intent for felonious assault. That defendant did not at first describe his intention before applying the brakes, and then did so in a somewhat equivocal manner, did not preclude the court from accepting defendant's tendered guilty plea:

"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." Guilty Plea Cases, 395 Mich 96, 130; 235 NW2d 132 (1975); also see People v Tilliard, 98 Mich App 17, 19; 296 NW2d 180 (1980).

We further find that defendant's admission that he continued to drive his automobile toward the two persons with the intention of scaring them, prior to applying the brakes, provided a sufficient factual basis for concluding that defendant used his automobile as a "dangerous weapon" in contravention of the felonious assault statute, MCL 750.82; MSA 28.277. Defendant used the automobile in furtherance of accomplishing the assault, and the automobile was capable of inflicting serious injury. People v Goolsby, 284 Mich 375, 378; 279 NW 867 (1938).

Defendant's third and final claim, that he received ineffective assistance of counsel at the guilty plea proceeding, is without merit. We cannot agree with defendant that defense counsel "took on the role of prosecutor" by responding to the court's inquiry into the intent required for conviction of felonious assault. Furthermore, although defense counsel may have misstated the requisite intent for felonious assault, any mistake was harmless since, as explained above, there was a sufficient factual basis establishing the requisite intent.

Affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.