181 N.W.2d 610 | Mich. Ct. App. | 1970
PEOPLE
v.
MILLER
Michigan Court of Appeals.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, and Arthur N. Bishop, Assistant Prosecuting Attorney, for the people.
Charles H. Brown, for defendant on appeal.
Before: J.H. GILLIS, P.J., and V.J. BRENNAN and O'HARA,[*] JJ.
*587 PER CURIAM.
The people have moved to affirm defendant's conviction by a plea of guilty of attempted possession of burglar's tools. MCLA § 750.116 (Stat Ann 1962 Rev § 28.311) and MCLA § 750.92 (Stat Ann 1962 Rev § 28.287).
Defendant and another were charged with possession of burglar's tools but offered to plead guilty to attempted possession of burglar's tools after several days of jury trial before the Honorable James Montante, Judge of Wayne County Circuit Court, on January 11, 1968.
Judge Montante explained the defendant's right to continue with the jury trial, the right to confront and cross-examine witnesses and to present his own witnesses, and the privilege not to take the stand. The court further explained that the offense was punishable by a five-year maximum prison term. Defendant acknowledged that no one had threatened him or promised him anything.
Defendant's plea was accepted and on February 6, 1968, defendant was sentenced to 2-1/2 to 5 years in prison. Defendant appeals as of right arguing that the record failed to show the necessary elements of the offense.
After careful review of the record, it is clear to this Court that there is more than a substantial factual basis in the record to justify the acceptance of the proffered plea. People v. Bartlett (1969), 17 Mich App 205.
Defendant also contends that the lesser included offense of attempted possession is not possible. We do not agree with this argument.
The Supreme Court in People v. Webb (1901), 127 Mich 29, stated every charge of crime necessarily includes an attempt. Defendant argues, however, that that pertains to the crimes consisting of different *588 degrees; and argues further that this crime he is charged with did not consist of degrees. We do not agree; we feel that the trial court, in its discretion, may accept a plea of guilty of attempted possession of burglar's tools not only to help facilitate the plea-bargaining process but also to provide lesser maximum sentences in areas where the court deems it advisable. The court, in this matter, felt that the five-year maximum sentence was a sufficient maximum to satisfy and meet the ends of justice.
Motion to affirm granted.
NOTES
[*] Former Supreme Court Justice, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.
