Defendant appeals as of right from the denial by the Detroit Recorder’s Court of his amended motion to withdraw his guilty pleas of second-degree murder and conspiracy to commit second-degree murder. Defendant was sentenced to concurrent terms of five to ten years in state prison for the convictions.
On appeal, defendant contends that his conviction of conspiracy to commit second-degree murder is infirm and must be vacated because there is no such criminal offense. We agree, and vacate the conviction and sentence for conspiracy to commit second-degree murder on the ground that the state *107 has no legitimate interest in securing a conviction of a nonexistent offense.
r
At the outset, we note that our review is hampered by the failure of the Wayne County Prosecutor to file a brief. While in the future we may view such nonparticipation as a confession of error, in the instant case we choose to address the merits of the issues raised by the defendant.
Before this decision, there existed a conflict of authority within the Court of Appeals regarding whether conspiracy to commit second-degree murder is a lesser included offense of conspiracy to commit first-degree murder. A panel of this Court in
People v Owens,
Subsequent panels, however, have disagreed with
Owens,
and have held that conspiracy to commit second-degree murder does not exist as a criminal offense.
People v Gilbert,
We agree with these later authorities and are persuaded by the following reasoning contained in People v Gilbert, supra at 749-750:
Criminal conspiracy is a specific intent crime which arises from a mutual agreement between *108 two or more parties to do or accomplish a crime or unlawful act. People v Atley,392 Mich 298 , 311;220 NW2d 465 (1974). The gist of a criminal conspiracy is the specific, mutual agreement to perform the crime in question; the conspiracy statute provides punishment for the actual advance planning and agreement to perform the substantive criminal acts. Id. However, second-degree murder is distinguishable from first-degree murder in that it does not require premeditation and in fact may not require a specific intent to kill. MCL 750.316; MSA 28.548, MCL 750.317; MSA 28.549; People v Aaron,409 Mich 672 , 728-729;299 NW2d 304 (1980).
In Hamp, supra, p 103, the Court reasoned:
"Since prior 'planning’ and 'agreement’ are necessary, mandatory requisite elements of the crime of conspiracy, we find it analytically consistent to 'plan’ to commit first-degree murder but logically inconsistent to 'plan’ to commit second-degree murder. To prove a conspiracy to commit murder, it must be established that each of the conspirators have [sic] the intent required for murder and, to establish that intent, there must be foreknowledge of that intent. Foreknowledge and plan are compatible with the substantive crime of first-degree murder as both the crime of conspiracy and the crime of first-degree murder share elements of deliberation and premeditation. Prior planning denotes premeditation and deliberation. The elements of conspiracy, conversely, are incompatible and inconsistent with second-degree murder. One does not 'plan’ to commit an 'unplanned’ substantive crime. It is not 'absence’ of the elements but the 'inconsistency’ of the elements which lead [sic] us to conclude that one conspires to commit first-degree murder but not second-degree murder.” Because of this logical inconsistency, we conclude as a matter of law that there is iio crime of conspiracy to commit second-degree murder. We therefore vacate defendant’s conviction and sentence for conspiracy to commit second-degree murder.
*109 We, like the panel in Gilbert, reject People v Owens, and hold that conspiracy to commit second-degree murder is not a criminal offense because such a conspiracy is logically inconsistent.
n
The next subissue is whether the state has a legitimate interest in securing a plea-based conviction of a fictional offense. Unlike Gilbert, the instant case involves a plea rather than a jury conviction.
We are cognizant of the fact that this Court on two prior occasions has permitted pleas of guilty of nonexistent offenses. In
People v Hooper,
We write to the proposition that a bargained plea to an alleged non-existent or paradoxical offense must be vacated because there is no such offense for two reasons.
First, the contention should be, and we hope is, consigned to oblivion. The idea that one who makes a bargain for his own benefit can be released from that bargain because what he bargained for is a non-existent crime is repugnant to any sense of justice, fairness and common sense. If the language, "shall affirmatively appear that the error complained of has resulted in a miscarriage of justice”, of MCL 769.26; MSA 28.1096 has any meaning left, it surely applies to the contention now before us, and we so hold.
We recognize that People v Collins,380 Mich 131 ;156 NW2d 566 (1968), did not involve a bargained plea and is otherwise factually dissimilar to this case of Hooper. However, at page 135 of that *110 opinion is found language which best expresses our reason for holding that defendant’s contention is untenable:
"If there is any miscarriage of justice, under these circumstances it can only be one in which the people of the State of Michigan have exacted an insufficient penalty. Putting it another way, if there has been, under these circumstances, a miscarriage of justice, it is a miscarriage which ran to the benefit of the defendants and to the detriment of the people. Of such a miscarriage of justice, only the people can complain.” [Id. at 133-134.]
Later, in
People v LeBlanc,
While we do not retreat from disapproval of such made-for-bargain charges, any detriment runs to the people and the benefit runs to the defendant. Defendants should not complain when they receive precisely what they bargained for. No prejudice is shown and no reversible error is found. [Id. at 346.]
We are normally persuaded by the argument that the defendant may not complain on appeal of receiving the benefit of his bargain. See
People v Vitale,
In
People v Richard Banks,
A corollary error is created when prosecutors accept guilty pleas to the nonexistent offense of attempted felonious assault. We are aware of People v Milton,36 Mich App 702 ;194 NW2d 1 (1971), but reject any intimation from this decision that a crime of attempted felonious assault exists which may be charged by the prosecutor in his discretion. In the future prosecutors must refrain from bargaining for guilty pleas to this nonexistent offense which could not be charged in the ñrst instance. [Id. at 690, n 8. Emphasis added.]
Although not articulated in
Hooper
and
LeBlanc,
it must be assumed that, under the "bargained-for-benefit” analysis, these panels concluded that a defendant may not appeal a plea-based conviction of a nonexistent offense because all defenses to the conviction were relinquished by operation of the plea bargain. Such a conclusion, however, was rejected by our Supreme Court in
People v New,
A literal interpretation of the language of Menna [v New York,423 US 61 ;96 S Ct 241 ;46 L Ed 2d 195 (1975)] and Blackledge [v Perry,417 US 21 ;94 S Ct 2098 ;40 L Ed 2d 628 (1974)] might allow a defendant to preserve a wide variety of defenses in spite of his guilty plea. However, the spirit of those cases, and respect for the state’s interest in the finality of conviction and judicial *112 economy as reflected in the guilty-plea procedure, undercuts the wisdom of such a construction. Further, the underlying rationale of the guilty plea in many cases is the notion of bargain and exchange. . . . Courts should be hesitant to allow a defendant to upset a bargain by which he knowingly and intelligently admitted his guilt.
. . . Only those rights and defenses which reach beyond the factual determination of defendant’s guilt and implicate the very authority of the state to bring a defendant to trial are preserved. Examples include: the prohibition against double jeopardy, Menna; the right to challenge the constitutionality of the statute under which one is charged, Journigan v Duffy, 552 F2d 283 (CA 9, 1977); the challenge that a charge is brought under an inapplicable statute, People v Beckner,92 Mich App 166 ;285 NW2d 52 (1979).
The examples cited by the Supreme Court are instructive. In
People v Beckner,
The prosecution also asserts that the defendant’s claim is waived by her guilty plea. Entry of a guilty plea does not waive the defendant’s right to assert that the state never had the power to proceed against her in the first place. That is the case when the charge is brought under an inapplicable statute. [Emphasis added.]
A claim that a plea was taken in violation of the constitutional bar against double jeopardy or that the defendant had pled guilty of the violation of an unconstitutional statute are further examples
*113
of defenses which survive a guilty plea because of the absence of a legitimate interest by the state in securing such a conviction. See
Menna v New York,
We hold that a plea of guilty of a nonexistent criminal offense is similar to the examples cited above in which the state never had a legitimate interest in securing a conviction. Accordingly, despite the plea bargain, the defendant may appeal and allege the illegality of his plea-based conviction of a nonexistent offense.
For these reasons, we conclude that the lower court abused its discretion in failing to grant defendant’s motion to withdraw his plea of guilty of conspiracy to commit second-degree murder.
hi
As a second issue, defendant argues that his plea-based conviction of second-degree murder must be reversed because: (1) his plea was not accepted by the lower court prior to his motion to withdraw, and (2) a sufficient factual basis was not established on the record to support the conviction. We disagree with the defendant, and affirm his conviction of second-degree murder.
The record reflects that, although the trial judge did not formally accept the defendant’s plea prior to sentencing, the motion to withdraw nevertheless was not made until after the defendant was sentenced. Our Supreme Court in
Guilty Plea Cases
The failure of the [trial] judge in Young formally to accept the plea before sentencing does not justify reversal. By sentencing the defendant the judge implicitly accepted the plea.
Further, although MCR 6.311(C) was not in effect at the time of defendant’s sentencing, and is therefore not applicable, we note that under the current rule the issue would not be preserved because of the defendant’s failure to raise the issue in the lower court:
A defendant convicted on the basis of a plea may not raise on appeal any claim of noncompliance with the requirements of the rules in this subchapter, or any other claim that the plea was not an understanding, voluntary, or accurate one, unless the defendant has moved to withdraw the plea in the trial court, raising as a basis for withdrawal the claim sought to be raised on appeal.
With regard to whether there was a sufficient factual basis for the plea of guilty of second-degree murder, the defendant’s own testimony clearly established that he aided and abetted. In response to the trial court’s questions, defendant stated that he participated in the murder by accompanying his cohorts to 15888 Coyle Street and serving as a "back up” for the others. Defendant carried a gun and was ready to use the gun to assist Willie Merriweather and the others should there arise a need to use the gun. There was no doubt from defendant’s testimony that defendant intended
*115
that Underwood be killed, because the murder was planned two days in advance. He also knew that Merriweather intended to kill Underwood, because that was the way the contract killing was planned, and because defendant saw Merriweather with an automatic firearm shortly before the murder. Although defendant was not actually in the house when Underwood was shot, it is clear that he aided and abetted the murder by supporting and assisting Merriweather and the other conspirators. We find such facts sufficient to support defendant’s conviction. See
People v Schultz,
iv
Defendant’s conviction of second-degree murder is affirmed. The lower court’s denial of defendant’s motion to withdraw his plea of guilty of conspiracy to commit second-degree murder is reversed. The case is remanded to the lower court for further proceedings consistent with this opinion. We do not retain jurisdiction.
Affirmed in part, reversed in part, and remanded.
Notes
The issue is more appropriately phrased in terms of relinquishment or forfeiture because it is asserted that such defenses are lost by operation of law, rather than by a deliberate, informed choice. See
People v Eaton,