People v. Cochran

155 Mich. App. 191 (1986) 399 N.W.2d 44

PEOPLE
v.
COCHRAN

Docket No. 87019.

Michigan Court of Appeals.

Decided August 13, 1986.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, John D. O'Hair, Prosecuting Attorney, Timothy A. Baughman, Deputy Chief, Civil and Appeals, and Rosemary A. Gordon, Assistant Prosecuting Attorney, for the people.

Jack J. Kraizman, for defendant.

Before: T.M. BURNS, P.J., and BEASLEY and R.M. PAJTAS,^[*] JJ.

PER CURIAM.

Defendant pled guilty to delivery of cocaine, MCL 333.7401(2)(a); MSA 14.15(7401)(2)(a), possession with intent to deliver cocaine, MCL 333.7401(2)(a); MSA 14.15(7401)(2)(a), two counts of assault with intent to murder, MCL 750.83; MSA 28.278, and felony-firearm, MCL 750.227b; MSA 28.424(2). Defendant was sentenced to a term of five to twenty years on Count I, five to fifteen years on Counts II, III, and IV, and two years for the felony-firearm.

Defendant now claims that the trial court erred in taking defendant's plea without first charging him with violation of his probation and granting him a probation revocation hearing. Defendant was not under probation; he was diverted from the criminal justice system pursuant to the Youthful Trainee Act (YTA), MCL 762.11; MSA 28.853(11). MCL 762.12; MSA 28.853(12) provides as follows:

The court of record, having jurisdiction over the criminal offense referred to in Section 1, may at any time terminate its consideration of the youth as a youthful trainee or, once having assigned the youth to the status of a youthful trainee, may at its discretion revoke such status at any time prior to the youth's final release. [Emphasis added.]

The YTA is not the same as probation. When youthful trainee status is terminated, the defendant is entitled to a trial. In this case the defendant pled guilty to those crimes that led to his being placed on youthful trainee status. There was no error.

Defendant also argues that no factual basis was established for conviction on the two counts of assault with intent to commit murder. After reviewing the record, we find that we disagree.

"A factual basis for acceptance of a plea exists if an inculpatory inference can reasonably be drawn by a jury from the facts admitted by defendant...." Guilty Plea Cases, 395 Mich 96, 130; 235 NW2d 132 (1975). See also People v Witt, 140 Mich App 365; 364 NW2d 692 (1985). However, even if a defendant denies an element of a crime, the trial court may properly accept the plea if an inculpatory inference can be drawn from what the defendant says. People v Bradford, 144 Mich App 416; 375 NW2d 764 (1985).

Assault with intent to commit murder contains the following elements: (1) an assault, (2) with specific intent to murder, (3) which, if successful, would make the killing murder. People v Branner, 53 Mich App 541; 220 NW2d 183 (1974). Specific intent to kill is the only form of malice which supports the conviction of assault with intent to commit murder. People v Gjidoda, 140 Mich App 294; 364 NW2d 698 (1985). Intent to inflict great bodily harm or wanton and wilful disregard of the recklessness of one's conduct is insufficient to support a conviction for assault with intent to commit murder. People v Taylor, 422 Mich 554; 375 NW2d 1 (1985).

The colloquy between the court and the defendant transpired as follows:

The Court: Now the next one. Apparently you assaulted two police officers, Derrick Anderson and Lamar Nowell, with a gun. Will you tell the Court what happened involving those?

Defendant Cochran: I had a gun in my pocket and when they jumped out of the truck, I didn't know who they was, and I ran from them and I shot. Shots were fired at me.

The Court: Then what happened?

Defendant Cochran: I just fled and I left the scene.

The Court: Did you fire any shots?

Defendant Cochran: Yes, sir,

The Court: All right, you didn't know whether they were holdup men or other drug —

Defendant Cochran: Yes, sir.

The Court: And you fired shots in the direction of the two of them?

Defendant Cochran: Right; up in the air.

The Court: What?

Defendant Cochran: I fired one shot in the air.

The Court: Well, didn't you intend to kill them?

Defendant Cochran: Yes, sir.

The Court: All right, you had a handgun at the time you fired the shots?

Defendant Cochran: Yes sir.

We believe the above established a factual basis for assault with intent to commit murder. Although the defendant stated that he fired "into the air" he affirmatively stated that he intended to kill. A fair reading of the plea-taking transcript does indeed establish the requisite intent.

Affirmed.

NOTES

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