People v. Hill , 36 Mich. App. 679 ( 1971 )

36 Mich. App. 679 (1971) 193 N.W.2d 909

PEOPLE
v.
HILL

Docket No. 10651.

Michigan Court of Appeals.

Decided October 27, 1971.

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

Markus S. Simon, for defendant on appeal.

Before: LESINSKI, C.J., and V.J. BRENNAN and O'HARA,^[*] JJ.

PER CURIAM.

The defendant was charged with breaking and entering an occupied dwelling house with intent to commit larceny therein. MCLA § 750.110 (Stat Ann 1971 Cum Supp § 28.305). While represented by retained counsel, he waived the preliminary examination and pled guilty to attempted breaking and entering of an occupied dwelling house with intent to commit larceny therein. MCLA § 750.92 (Stat Ann 1962 Rev § 28.287). He was sentenced to a term of three and one-half to five years in prison.

Appointed appellate counsel filed a delayed motion for a new trial and an evidentiary hearing to determine the voluntariness of the plea based on the allegation that the defendant expected probation, not a prison sentence, when he offered the plea. The motion was denied. Defendant's argument that his plea of guilty was induced by promises of leniency was not briefed or raised on appeal, and is therefore considered abandoned. People v. Williams (1971), 29 Mich. App. 420.

On appeal the defendant argues that the trial court did not comply with MCLA § 768.35 (Stat Ann 1954 Rev § 28.1058) and GCR 1963, 785.3(2) when the defendant's plea was accepted. Specifically, he contends that his testimony showed only an entry without a breaking and that therefore the court should have questioned him in greater detail regarding the voluntariness of his plea.

The "testimony" referred to is as follows:

"Q. [Court]: Did you go into that house?

"A. [Defendant]: Yes sir.

"Q. What time of the day or night?

"A. About 12:30, 11:00 o'clock.

"Q. How did you get in?

"A. It was already open, some of our boys had broke into it. They were talking about going back and get the stuff so I went in and tried to get it before them."

Although this testimony does not establish that the defendant himself did the "breaking"^[1] he could clearly have been found guilty of aiding and abetting. A person who aids and abets in the commission of a crime may be "prosecuted, indicted, tried and on conviction shall be punished as if he had directly committed such offense." MCLA § 767.39 (Stat Ann 1954 Rev § 28.979).

Therefore, the trial court did adduce a sufficient factual basis for the plea and the court's inquiry into the voluntariness of the plea was sufficient.

Affirmed.

NOTES

[*] Former Supreme Court Justice, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

[1] Even if defendant had pushed aside an already opened door, it would have been sufficient to constitute a breaking. People v. Davis (1970), 22 Mich. App. 70.