People v. Newsom , 25 Mich. App. 371 ( 1970 )

25 Mich. App. 371 (1970) 181 N.W.2d 551

PEOPLE
v.
NEWSOM
PEOPLE
v.
YOUNG

Docket Nos. 7,219, 7,502.

Michigan Court of Appeals.

Decided July 28, 1970.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Division, and Arthur N. Bishop, Assistant Prosecuting Attorney, for the people.

William Brodhead, for Billy J. Newsom on appeal.

Perlman & Garber (Gilbert A. Donohue, of counsel), for Randolph R. Young on appeal.

Before: DANHOF, P.J., and V.J. BRENNAN and J.J. KELLEY, JR.,^[*] JJ.

DANHOF, P.J.

Both defendants were charged with robbery armed, MCLA § 750.529 (Stat Ann 1970 Cum Supp § 28.797). They pled guilty to reduced charges of larceny from a person, MCLA § 750.357 (Stat Ann 1954 Rev § 28.589).

The defendants recited in considerable detail sordid facts which indicated the truth of their pleas. The defendants said that on September 28, 1968, they were solicited by two women and that the four of them then went to a motel where the defendants purchased the women's sexual services for $10 each. The defendants stated that following the completion of the transactions they discovered that the women had stolen money from them and that this made the defendants angry. They then forcefully took back the stolen money and defendant Newsom also took back the $10 he had paid and a watch and ring from one of the women while defendant Young took back the $10 he had paid the other woman for her services.

On appeal defendant Young's only argument is that his actions did not constitute a crime since the agreement he made to purchase sexual services was illegal and so his forcefully taking back the $10 was not a crime.

We are not persuaded by that argument. The trial court did not enforce any contract legal or otherwise. The agreement had been completed and both parties had received the agreed-upon consideration. Defendant Young then forcefully took back the $10 which by that time belonged to the woman. Such action constituted the crime of larceny from a person. "Public policy requires that courts should lend active aid in punishing persons who obtain money or property from others by criminal means, and it is no defense that the complaining witness was himself engaged in an illegal transaction." 1 Gillespie, Michigan Criminal Law and Procedure (2d Ed), § 29, p 49.

On appeal defendant Newsom's only argument is that the trial court did not properly examine him as to whether his plea was freely and voluntarily offered. GCR 1963, 785.3(2), MCLA § 768.35 (Stat Ann 1954 Rev § 28.1058).

Defendant Newsom admits that no set form of examination is required. People v. Bumpus (1959), 355 Mich. 374, 379. However, heavy reliance was placed on the suggested form in People v. Taylor (1968), 9 Mich. App. 333. Since the briefs were filed in the present case, the Taylor case has been reversed. People v. Taylor (1970), 383 Mich. 338.

The record shows that the defendants were represented by separate counsel and that the trial judge advised the defendants that they were charged with robbery armed which carried a penalty of life imprisonment but that they could plead guilty to an included offense of larceny from a person which carried a maximum period of imprisonment of ten years. The trial judge also told the defendants that they must tell him accurately and truthfully what happened and if their testimony didn't state facts constituting a basis for the pleas he would not accept them.

The defendants were then asked if they understood and both answered affirmatively. Newsom was specifically asked if he wished to plead not guilty or guilty to the offense of larceny from a person. He replied, "Guilty." The court again asked him if he knew that he could be sentenced up to ten years and Newsom answered, "Yes."

In turn both defendants then stated facts which showed a substantial basis for accepting the pleas. Later defendant Newsom was sentenced to a term of 5-1/2 years to 10 years in prison and defendant Young was sentenced to a term of 5 to 10 years in prison.

Defendant Newsom does not allege that he is innocent or that his plea was not freely and voluntarily entered. His sole point is the failure of the court to interrogate him on the question of voluntariness.

The court rule is mandatory but failure to comply with it is not considered jurisdictional, GCR 1963, 785.3(4). As was said in People v. Winegar (1968), 380 Mich. 719, 729, 733:

"First of all, a conviction based upon a plea of guilty is a judgment of the trial court. If the court has jurisdiction to enter the conviction, it is presumptively valid.

* * *

"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."

We find no miscarriage of justice.

Affirmed as to both defendants.

All concurred.

NOTES

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