People v. Genes ( 1975 )

Van Valkenburg, J.

The defendant was originally charged with second degree murder. MCLA 750.317; MSA 28.549. After negotiating a plea to manslaughter, MCLA 750.321; MSA 28.553, the defendant appealed and this Court reversed in an order dated May 21, 1973. On remand further negotiations were conducted and the defendant pled guilty to a charge of attempted manslaughter. MCLA 750.321; MSA 28.553; MCLA 750.92; MSA 28.287. The defendant now appeals contending that it was error to accept his plea because there is no such crime as attempted manslaughter. We affirm.

We preface our discussion by noting that the fact that the record shows that the defendant is guilty of the completed offense is not a ground for setting aside a conviction of attempt. People v Bradovich, 305 Mich 329; 9 NW2d 560 (1943). Thus, the fact that the victim died would not prevent an attempt conviction.

We must reject the defendant’s argument that there is no such thing as attempted manslaughter. While there can be no such thing as attempted involuntary manslaughter, where the theory is voluntary manslaughter there can be an attempt. See LaFave & Scott, Criminal Law, § 59 p 423. The draftsmen of the proposed Michigan Revised Criminal Code state the rule as follows in their comments to Section 1001, p 82, of the code:

"The proposed definition of attempt follows the conventional pattern of limiting this inchoate crime to purposeful conduct, i.e., the actor must have an 'intent to commit a specific offense.’ Thus, where criminal liability rests on the causation of a prohibited result, the actor must have an intent to achieve that result even though violation of the substantive offense may require some lesser mens rea. Reckless driving, for example, does not constitute attempted manslaughter. A person charged with the substantive crime of manslaughter may be liable as a result of negligence or recklessness causing death, but the same recklessness would not be sufficient if the victim did not die and the actor were only charged with attempt; here, the state would have to show an intent to achieve the prohibited end result, death of the victim. In this area, as in others if the substantive crime requires only recklessness, the mens rea requirement for an attempt is substantially higher than that for the substantive crime.”

We also believe that a plea to attempted manslaughter may be accepted even when the only possible theory is involuntary manslaughter. A guilty plea to an attempt charge entered as a part of a plea bargain may be accepted even though a jury conviction on the same charge might have to be reversed. We reject the dicta to the contrary contained in a footnote to People v Brandon, 46 Mich App 484; 208 NW2d 214 (1973). On several occasions this Court has upheld pleas to attempt charges when, at least arguably, a jury conviction would have been reversed. People v Pickett, 21 Mich App 246; 175 NW2d 347 (1970); People v Miller, 25 Mich App 586; 181 NW2d 610 (1970); People v Burgan, 27 Mich App 216; 183 NW2d 413 (1970). We see no reason for departing from the rule of these cases.

The court rule, GCR 1963, 785.7(3)(c), provides that the factual basis for the plea must be placed on the record. This factual basis may support a finding that the defendant is guilty of either the crime charged or the crime pled to. Where the factual basis would support a finding of manslaughter a plea to attempted manslaughter may be accepted. When a plea is otherwise proper, a defendant may plead guilty to an attempt, even though a jury conviction might be improper.

In People v Foster, 19 NY2d 150; 278 NYS2d 603; 225 NE2d 200 (1967), the New York Court of Appeals was faced with a contention that a plea to attempted involuntary manslaughter was a nullity, had no basis in law, and violated due process. The Court answered these contentions as follows:

"[There is no violation] * * * when a defendant knowingly accepts a plea to attempted manslaughter as was done in this case in satisfaction of an indictment charging a crime carrying a heavier penalty. In such case, there is no violation of defendant’s right to due process. The defendant declined to risk his chances with a jury. He induced the proceeding of which he now complains. He made no objection or complaint when asked in the presence of his counsel whether he had any legal cause to show why judgment should not be pronounced against him, and judgment was thereafter pronounced. As a result the range of sentence which the court could impose was cut in half — a substantial benefit to defendant.”

The defendant has received the benefit of his bargain and we decline to hold that it was error to accord him this benefit.

Affirmed.

V. J. Brennan, P. J., concurred.