DocketNumber: Docket 43521
Citation Numbers: 300 N.W.2d 408, 100 Mich. App. 776
Judges: MacKenzie, P.J., and Bashara and D.C. Riley
Filed Date: 10/22/1980
Status: Precedential
Modified Date: 8/7/2023
Defendant was charged with two counts of assault with intent to murder, MCL 750.83; MSA 28,278, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). On January 9, 1978, she pled guilty to the felony-firearm count and a lesser charge of felonious assault, MCL 750.82; MSA 28.277. On January 18, 1978, the trial court sentenced defendant to consecutive terms of imprisonment of two to four years on the felonious assault conviction with credit for 117 days served and two years on the felony-firearm conviction. Defendant appeals by leave granted.
Defendant’s allegations of error all relate to the procedure to be followed by the trial court before accepting a guilty plea under GCR 1963, 785.7. Failure to advise defendant of probation and parole consequences is harmless as this was her first offense and she was not on probation or parole. See Guilty Plea Cases, 395 Mich 96, 128; 235 NW2d 132 (1975). Nor does the trial court’s failure to inform defendant that her plea subjected her to sentence enhancement as an habitual offender require reversal. Since defendant had not previously been convicted of a felony, her guilty plea herein could not be used to trigger the habitual offender statute and there was no duty to so inform her. People v Sickmiller, 87 Mich App 332, 334; 274 NW2d 57 (1978).
Defendant’s contention that she was not informed that she was relinquishing the rights she would have at trial is not supported by the record of the plea proceeding. We are satisfied that defendant was informed of her Jaworski
"THE COURT: Well it says here that you had a gun and that it was pointed in your husband’s direction. And it was in your hands, * * * and it discharged and struck him; is that right?
"THE DEFENDANT: No. It did not strike him. It discharged as it struck the wall.
"THE COURT: I see. What you wrote here is true?
"THE DEFENDANT: Yes, it is.”
In reviewing the adequacy of the factual basis for a guilty plea, the requisite inquiry is whether a trier of fact could properly convict on the facts as stated by the defendant. "A factual basis for acceptance of a plea exists if an inculpatory inference can reasonably be drawn by a jury on the facts admitted by the defendant. The fact that an exculpatory inference could also be drawn is immaterial.” People v Spry, 74 Mich App 584, 593-594; 254 NW2d 782 (1977), citing Guilty Plea Cases, supra, and People v Haack, 396 Mich 367; 240 NW2d 704 (1976).
Initially, we note the reluctance of our courts to rely on a written statement of a defendant purporting to waive his constitutional rights or establish a factual basis for the charge. See Guilty Plea Cases, supra, People v Schneff 392 Mich 15, 25-26; 219 NW2d 47 (1974) (plurality opinion), People v
In the case at bar, defendant argues that the record does not indicate that she intended to commit the crime of felonious assault. Felonious assault is a general intent crime. The intent necessary is that required in a simple assault: either an attempt to injure or an intent to put the victim in reasonable fear and apprehension of an immediate battery. People v Joeseype Johnson, 407 Mich 196, 210; 284 NW2d 718 (1979).
Although the question here is close, we do not believe the record established that defendant aimed the gun at her husband with the intent to injure him or the intent to put him in fear of an immediate injury. The facts as recited by defendant show only that the gun happened to be pointed in her husband’s direction and discharged upon hitting the wall. She did not testify regarding her husband’s reaction to the shot.
On remand, the procedure established in Guilty Plea Cases, supra, 129, should be followed. What must be clarified is whether defendant aimed the gun in her husband’s direction and attempted to injure him or put him in reasonable fear of an immediate battery. If that is the case, defendant’s convictions should be upheld. But, if it is shown only that the gun accidentally discharged while not intentionally aimed at the victim, both of defendant’s convictions must be reversed.
Remanded for proceedings in accordance with this opinion.
People v Jaworski, 387 Mich 21; 194 NW2d 868 (1972).