317 N.W.2d 308 | Mich. Ct. App. | 1982
PEOPLE
v.
CISCO
Michigan Court of Appeals.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, George N. Parris, Prosecuting Attorney, Don L. Milbourn, Chief Appellate Lawyer, and Robert John Berlin, Assistant Prosecuting Attorney, for the people.
Boyer & Churilla, P.C., for defendant.
*111 Before: N.J. KAUFMAN, P.J., and BASHARA and R.I. COOPER,[*] JJ.
PER CURIAM.
Defendant appeals his guilty-plea conviction of breaking and entering an occupied dwelling with intent to commit larceny, MCL 750.110; MSA 28.305.
Initially, defendant argues that the plea bargain was illusory and must be set aside. This contention is based upon the assertion that the prosecutor was precluded from filing habitual offender charges against defendant on the authority of People v Fountain, 407 Mich. 96; 282 NW2d 168 (1979).
We disagree. The record repeatedly shows that defendant agreed during pretrial proceedings to plead guilty in exchange for a minimum sentence recommendation of no more than four years and an agreement not to file habitual offender charges. At the time this agreement was made, the prosecutor still could have filed the supplemental information. Consequently, the promise to forego the charge was not illusory. People v Hutcherson, 96 Mich. App. 365; 292 NW2d 466 (1980), People v Haywood, 97 Mich. App. 621; 296 NW2d 127 (1980), and People v Leitner, 105 Mich. App. 681; 307 NW2d 405 (1981).
The acceptance of the prosecutor's plea offer not to file habitual offender charges is not illusory for the reason that the defendant is simply assured there will not be a subsequent attempt by the prosecutor to do so, even if the chances of a successful filing possibly would be minimal. It goes against all logic to give a defendant this assurance, which in many and probably most cases is requested by the defense as a matter of precaution *112 by the defense attorney, and then on appeal use it as a basis to reverse.
Next, defendant asserts that there is an insufficient factual basis on the record to support the conviction. Specifically, he contends that there was no factual basis in support of the "occupied" element of the crime. A factual basis for acceptance of a plea exists if an inculpatory inference can be reasonably drawn by a jury on the facts admitted by the defendant. The fact that an exculpatory inference could also be drawn is immaterial. Guilty Plea Cases, 395 Mich. 96, 130; 235 NW2d 132 (1975), People v Frazier, 100 Mich. App. 776, 779; 300 NW2d 408 (1980).
Defendant stated that he went to a house with the intent to rob it. He broke down the door of the home and stole a television set. No one was home at the time.
We find a sufficient basis on this record to infer that the place which defendant robbed was "occupied". The fact an owner is temporarily absent from a dwelling place does not preclude a finding that the residence was "occupied". People v Traylor, 100 Mich. App. 248; 298 NW2d 719 (1980). An inculpatory inference can be drawn from defendant's description to sustain the plea-based conviction. Guilty Plea Cases, 395 Mich. 96; 235 NW2d 132 (1975).
Affirmed.
N.J. KAUFMAN, P.J. (dissenting).
I respectfully dissent. I would hold defendant's guilty plea to have been the product of an illusory bargain inasmuch as it was based in part on the prosecution's promise not to file a supplemental habitual offender complaint. People v Mallory, 111 Mich. App. 629; 314 NW2d 716 (1981).
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.