Opinion
Docket No. 16844.
Decided March 28, 1974.
Appeal from Jackson, Charles J. Falahee, J. Submitted Division 2 February 5, 1974, at Lansing. (Docket No. 16844.) Decided March 28, 1974.
Jimmie C. James, also known as Jack Banks, was convicted of larceny in a building and, on his plea of guilty, of delivery of heroin. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Bruce A. Barton, Prosecuting Attorney, and James M. Justin, Chief, Appeals Division, for the people.
Allan C. Miller, Assistant State Appellate Defender, for defendant.
Defendant pled guilty to delivery of heroin, and was sentenced to 7-1/2 to 20 years in prison, to be served consecutive to the 1-1/2 to 4-year sentence for larceny in a building he received on the same day. Defendant appeals as of right, raising four issues, only one of which merits any extensive discussion.
MCLA 335.341(1)(a); MSA 18.1070(41)(1)(a).
The consecutive sentence is pursuant to the provisions of MCLA 768.7b; MSA 28.1030(2), since the narcotics charge considered herein was committed while defendant was on bond for the larceny charge.
At the plea proceedings it was placed on the record that as part of the plea bargain agreement the prosecutor, in addition to dismissing two other charges pending against defendant, would dismiss two pending heroin possession charges against defendant's wife. While the record clearly reflects that defendant was concerned whether his plea would insure that the charges against his wife would be dismissed, defendant unequivocally stated that no threats had been made, that he was pleading guilty voluntarily, and that he was pleading guilty because he felt he was in fact guilty. Defendant also twice volunteered that the prosecutor had been fair. Defendant further expressed satisfaction with his attorney, indicated that his attorney had backed him up all the way, and indicated that everyone else had been fair.
On appeal, defendant's appellate counsel argues that reversal and remand for a new trial is mandated by the fact that the record herein establishes that defendant was coerced into entering his plea by reason of the threat of prosecution of his wife, if he did not plead guilty. Clearly appellate counsel has misconstrued the applicable legal principles and the facts of this case in arriving at that conclusion. As to the applicable rule of law, the majority opinion in People v Forrest, 45 Mich. App. 466, 469; 206 N.W.2d 745, 747 (1973), states:
"The majority of jurisdictions which have passed on this question have held that a promise of leniency for a relative is not, of itself, coercive enough to vitiate a guilty plea as a matter of law. Instead, the question in each case is whether the inducement for the guilty plea was one which necessarily overcame the defendant's ability to make a voluntary decision."
It would not appear that Judge T.M. BURNS in his dissent in Forrest disagreed with this statement, since in his dissent he speaks of the fact the concern for the fate of a family member "can result in coercion" rather than that it "does result in coercion".
It is thus obvious that the fact that defendant herein expressed a concern that his plea would result in the dismissal of the charges against his wife, and entered into a plea bargain agreement to secure the dismissal, does not as a matter of law constitute coercion such as would mandate reversal.
Appellate counsel is equally wrong in asserting that the record herein provides an adequate basis upon which a determination can be made that defendant offered his plea because he was coerced to do so by the threat of prosecution of his wife, if he did not offer the plea. As noted previously, defendant unequivocally stated at the time of his plea that there had been no threats, that his plea was voluntary and that everyone concerned had been fair in dealing with him. Certainly defendant's attestations at the plea proceeding belie any present assertion that there was some overt threat by the prosecutor or his trial counsel that his plea was the sine qua non to the continued freedom of his allegedly innocent wife.
On the record presented to us in this appeal, we cannot say, either as a matter of law or a matter of fact, that the plea was involuntarily given. Defendant, through his appellate counsel, has chosen to rely on the rather narrow question of whether this record provides a basis for holding that the plea was not voluntary, rather than move in the trial court to withdraw the plea and hold an evidentiary hearing from which the trial court could determine whether there was indeed facts to indicate that the plea was involuntary and coerced. The proper forum for entertaining a post-plea allegation of involuntariness on some basis not supported in the record is the trial court. To the extent that the assertion of lack of voluntariness is based on facts not in the record, the question has not been properly before this Court for appellate review; and to the extent that defendant relies on the facts contained in this record, we find that there is not a sufficient basis to warrant reversal and remand.
See People v Kenny Smith, 20 Mich. App. 307; 174 N.W.2d 8 (1969); People v Dorner, 24 Mich. App. 306; 180 N.W.2d 201 (1970); People v Horvath, 25 Mich. App. 649; 181 N.W.2d 646 (1970); People v Maddox, 28 Mich. App. 583; 184 N.W.2d 481 (1970); People v Sumlin, 32 Mich. App. 1; 188 N.W.2d 144 (1971); People v Ginther, 39 Mich. App. 113; 197 N.W.2d 281 (1972). See also the comments of Justice T.E. BRENNAN in People v John Robert Taylor, 383 Mich. 338, 359; 175 N.W.2d 715, 725 (1970) and People v Robert Taylor, 387 Mich. 209; 195 N.W.2d 856 (1972).
Defendant's assertion that the trial court did not elicit a sufficient factual basis before accepting the plea is wholly without merit. Defendant, in response to questions by the trial court, admitted that he did in fact transfer narcotics to some person, although he could not remember who, on the date in question, and further indicated the narcotic transferred was heroin.
Assuming arguendo that to convict for the actual transfer of narcotics within the meaning of MCLA 335.341(1); MSA 18.1070(41) requires a specific intent that thereby makes the question of intoxication germane, defendant's assertion that the plea herein should not have been accepted, because defendant was suffering from narcotic intoxication at the time of the crime, is without foundation or merit. While defendant did admit that he was a drug addict, there is absolutely no support for the assertion that he was suffering from drug intoxication at the time of the crime. Neither does the mere fact that defendant was a drug addict sufficiently suggest that there was a real possibility that defendant was intoxicated so as to require that the court sua sponte inquire as to the possible existence of such a defense.
The validity of this underlying assumption is in itself questionable. See People v Rios, 386 Mich. 172, 178; 191 N.W.2d 297, 300 (1971), which set forth the elements of sale of narcotics under the prior statutes, but gave no indication that there was any specific intent.
Defendant also asserts that he was not adequately informed of his right against self-incrimination because the trial judge failed to inform him of the fact that if he went to trial and did not take the stand no adverse inference could be drawn from his decision to exercise his right to remain silent. While such an instruction is required by GCR 1963, 785.7(1)(d)(iv) for all pleas taken after June 1, 1973, this Court has repeatedly held that pleas prior to that date are proper even though defendant was not informed of the fact no adverse inference can be drawn. See People v Melvin Jones, 40 Mich. App. 368; 198 N.W.2d 768 (1972); People v Adams, 42 Mich. App. 171; 201 N.W.2d 340 (1972); People v Kenneth Jones, 45 Mich. App. 351; 206 N.W.2d 477 (1973), lv den 389 Mich. 801 (1973); People v Killingbeck, 49 Mich. App. 380; 212 N.W.2d 256 (1973).
Affirmed.
All concurred.