People v. Willsie ( 1980 )

96 Mich. App. 350 (1980) 292 N.W.2d 145

PEOPLE
v.
WILLSIE

Docket No. 78-4259.

Michigan Court of Appeals.

Decided February 25, 1980.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Ronald C. Zeller, Prosecuting Attorney (by Leonard J. Malinowski, Assistant Attorney General, Prosecuting Attorneys Appellate Service), for the people.

Kim Robert Fawcett, Assistant State Appellate Defender, for defendant on appeal.

Before: T.M. BURNS, P.J., and CYNAR and A.M. BACH,^[*] JJ.

PER CURIAM.

Defendant Gordon Willsie appeals of right his conviction of July 7, 1978, based on his plea of guilty but mentally ill to the offense of criminal sexual conduct in the first degree. MCL 750.520b(1); MSA 28.788(2)(1). On July 17, 1978, he was sentenced to life imprisonment. We affirm.

We reject defendant's argument that he is entitled to have his plea vacated because he was not readvised on July 17, 1978, of the rights contained in the court rule. On July 7, 1978, defendant was advised of the constitutional rights that he would be waiving by pleading guilty. Although defense counsel waived "any further detail" in the factual basis for the crime, the prosecutor objected to the lower court's acceptance of the plea without a more complete statement of its factual basis. Notwithstanding the prosecutor's objection, the lower court accepted defendant's plea. However, at the July 17 sentencing, the lower court granted the prosecutor's request and obtained a more detailed factual basis for the crime. At no time between the date that he offered his plea and the date of his sentencing did defendant seek to withdraw his plea.

Defendant's argument on this point has less merit than that presented by the appellant in People v Kosecki, 73 Mich App 293; 251 NW2d 283 (1977). There, a panel of this Court rejected a similar argument despite the fact that in that case the defendant had attempted to withdraw his plea prior to the date of sentencing. Further, under the holding of the Supreme Court in the Guilty Plea Cases, 395 Mich 96; 235 NW2d 132 (1975), cert den 429 US 1108; 97 S Ct 1142; 51 L Ed 2d 561 (1977), even if the lower court had not obtained on July 17 a more detailed statement of the factual basis of the crime, defendant would not, for that reason alone, be entitled to withdraw his plea. Rather, it would be the duty of this Court to remand and permit the prosecutor to establish a factual basis for the plea.

The recital of constitutional rights enumerated in GCR 1963, 785.7 is not a mere talismanic chant that simply validates guilty pleas. Rather, its practical purpose is to ensure that a defendant who wishes to plead guilty to a criminal charge does so voluntarily with full knowledge and understanding of his actions. Nothing contained in the record before us would lead us to believe that defendant's plea was not voluntarily, knowingly or understandingly made. Further, defendant does not even assert in this appeal that his plea was coerced or given in ignorance. Therefore, we decline to accept defendant's argument and reduce court rule 785.7 to the status of a pro forma litany.

Defendant also raises several constitutional challenges to the validity of the guilty but mentally ill statute. MCL 768.36(2); MSA 28.1059(2). Defendant's argument that the lower court lacked the jurisdiction to make a determination as to whether he was mentally ill at the time of the offense and his argument that the guilty but mentally ill statute violates the title-object clause of the Michigan Constitution, Const 1963, art 4, § 24, were both raised and disposed of by this Court in People v Sharif, 87 Mich App 196; 274 NW2d 17 (1978).

We are not persuaded by defendant's argument that the guilty but mentally ill statute violates Const 1963, art 4, § 25, because the Legislature did not re-enact and republish certain sections of the Mental Health Code that defendant claims were amended by the guilty but mentally ill statute. Specifically, defendant claims that the guilty but mentally ill statute amended § 400(g) of the Mental Health Code. MCL 330.1400(g); MSA 14.800(400)(g). This section of the Mental Health Code defines the term "court" for purposes of Chapter 4 of the Mental Health Code. However, we note that the criminal provisions of the Mental Health Code are set forth in Chapter 10 of the Code, MCL 330.2000-330.2050; MSA 14.800(1000)-14.800(1050), and in that chapter the term "court" is undefined. Therefore, because the scope of the term "court" in Chapter 10 of the Mental Health Code was not altered by passage of the guilty but mentally ill statute, Const 1963, art 4, § 25 has not been violated.

Defendant's final appellate argument is that his plea was illusory because it was based upon a promise that he would receive special psychiatric treatment and no such special treatment has been given him. We find no evidence in the record to support this allegation. As was noted in People v Sorna, 88 Mich App 351, 362; 276 NW2d 892 (1979), if the Department of Corrections is failing to provide the psychiatric care required under the guilty but mentally ill statute, the appropriate remedy would be a complaint for a writ of mandamus to compel the Department of Corrections to carry out its duty. Nonetheless, on the record before us we cannot say that defendant is not receiving proper care.

Affirmed.

NOTES

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