author: Per Curiam. V. J. Brennan, P.J.

text:
    PEOPLE v HOLLIS
    Docket No. 43328.
    Submitted November 8, 1979, at Grand Rapids.
    Decided March 18, 1980.
    Garfield Hollis was convicted of first-degree criminal sexual conduct. At his 1977 trial in Kalamazoo Circuit Court, Marjorie Lee Luna, J., he moved for the suppression of any reference to his eight prior felony convictions for the purpose of impeachment if he chose to testify. The trial court suppressed reference to four of the prior felony convictions, i.e., three convictions for carrying a concealed weapon and one conviction for a larceny over $100, but the court refused to suppress reference to the other four felony convictions: a 1932 conviction for robbery with physical harm, a 1950 conviction for assault with intent to commit unarmed robbery, a 1951 conviction for indecent liberties with a minor child and a 1955 conviction for unarmed robbery. Defendant decided not to testify in his own defense. Defendant appeals. Held:

    1. The element of penetration, for the purpose of satisfying the requirements of the criminal sexual conduct statute, need not necessarily be established by eyewitness testimony. That element may be established by circumstantial evidence and by reasonable inferences drawn by the trier of fact. The victim’s testimony describing the circumstances of the assault and the physical sensations was sufficient to permit the jury to reasonably infer that penetration within the meaning of the statute had occurred.
    2. The element of personal injury under the criminal sexual conduct statutes was sufficiently shown by the testimony of the victim that the defendant had grabbed him around the neck and had thrown him to the bed prior to the sexual assault and by the evidence, including photographs, of bruises upon the victim’s neck.
    3. While the trial judge indicated that she was exercising her discretion in determining whether to permit reference to defendant’s prior convictions for the purpose of impeachment and adequately articulated on the record her reasons for the exercise of her discretion, the Court of Appeals must, nevertheless, review her determination for any abuse of discretion. Applying the balancing test with respect to the four felonies which the trial court would have permitted reference to, had defendant testified, and making particular note of the provisions of the Michigan Rules of Evidence which the Supreme Court adopted shortly after this trial and of the fact that one of those prior felony convictions was for a crime similar to the charged crime, this Court finds that the trial judge abused her discretion, since the possibility of prejudice to the defendant far outweighed the relevancy of that evidence to the question of determining defendant’s credibility.

      References for Points in Headnotes
    [1,2] 65 Am Jur 2d, Rape §§ 88, 89.
    [3] 4 Am Jur 2d, Appeal and Error §§ 18, 772, 774.
    [4,5] 29 Am Jur 2d, Evidence §§ 320, 327.
    [6] 29 Am Jur 2d, Evidence § 9.

      Reversed and remanded.
    V. J. Brennan, P.J., dissented. He would hold that the provisions of the new Michigan Rules of Evidence should not be applied retroactively and that, on the basis of the rules and case law in effect at the time the trial judge made her determination, there was no abuse of discretion on the part of the trial judge in ruling that evidence of the four prior convictions could be used for impeachment purposes. He would affirm.
    Opinion of the Court
    1. Criminal Law — Evidence — Criminal Sexual Conduct — Penetration — Sufficiency of the Evidence — Reasonable ■ Inferences — Statutes.
    The element of penetration, which is necessary to establish first-degree criminal sexual conduct under the criminal sexual conduct statute, need not necessarily be established by eyewitness testimony; the element of penetration is sufficiently established where the victim describes circumstances of the assault and physical sensations of that assault from which the trier of fact can reasonably infer penetration within the meaning of the statute (MCL 750.520b; MSA 28.788[2]).
    2. Criminal Law — Evidence — Criminal Sexual Conduct — Personal Injury — Sufficiency of the Evidence — Statutes.
    The element of personal injury under the criminal sexual conduct statute is sufficiently established where there is evidence that a defendant grabbed a victim around the neck with sufficient force to bruise the victim and threw the victim to a bed prior to the sexual assault (MCL 750.520b; MSA 28.788[2]).

      3. Appeal — Impeachment Evidence — Prior Convictions — Discretion — Abuse of Discretion.
    Review of a trial court’s determination as to the admissibility, for impeachment purposes, of evidence of a defendant’s prior convictions is not precluded merely because the trial court states on the record that it is exercising its discretion or because the court articulates the reasons for its exercising its discretion; rather, review is made to determine whether there was an abuse of discretion, since the discretion of the trial court to permit such evidence is limited.
    4. Criminal Law — Evidence — Impeachment Evidence — Prior Convictions — Charged Crime — Similarity — Admissibility.
    A conviction for the same type of offense as the offense for which a defendant is being tried militates against the admission of evidence of that conviction for the purposes of impeaching the defendant’s credibility.
    5. Criminal Law — Evidence — Impeachment Evidence — Prior Convictions — Admissibility — Abuse of Discretion.
    It is an abuse of discretion to permit the admission of evidence of a defendant’s 1932 conviction for robbery with physical harm, his 1950 conviction for assault with intent to commit robbery unarmed, his 1951 conviction for indecent liberties with a minor child and his 1955 conviction for unarmed robbery in the defendant’s 1977 trial for criminal sexual conduct, since the probability of prejudice to the defendant outweighs its relevancy for the purpose of determining credibility.
    Dissent by V. J. Brennan, P.J.
    6. Criminal Law — Evidence — Impeachment Evidence — Prior Convictions — Rules of Evidence — Retroactive Application.

      The provisions of the Michigan Rules of Evidence relative to the admission of evidence of prior convictions for the purpose of impeachment should not be retroactively applied in the review of the exercise of discretion by a trial judge in a trial occurring prior to the adoption of the Michigan Rules of Evidence, since the rules are not designated to be retroactive (MRE 609).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James J. Gregart, Prosecuting Attorney, Stephen M. Wheeler, Chief Appellate Attorney, and Judy A. Hughes, Appellate Attorney, for the people.

      Daudert, Tucker & Basch, for defendant on appeal.
    Before: V. J. Brennan, P.J., and Beasley and G. E. Bowles, JJ.

       Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

   Per Curiam.

Defendant, Garfield Hollis, was convicted by a jury of first-degree criminal sexual conduct, in violation of MCL 750.520b; MSA 28.788(2). After being sentenced to life imprisonment, he appeals as of right.

Defendant first alleges that there was not sufficient evidence to sustain his conviction on the charged offense. In People v Johnson, this Court set forth the standard to be followed where a claim is made that the evidence is insufficient upon which to find guilt:

"Would the evidence presented by the prosecution justify a reasonable person in concluding that all elements of the crime were established beyond a reasonable doubt?”

In this case, the complainant did not visually see the act of oral contact which would constitute penetration under the statute, but testified in terms of the physical sensations he experienced. Defendant contends that such testimony is insufficient to support a finding of penetration. We disagree. The elements of a criminal offense may be proved by circumstantial evidence and the reasonable inferences arising therefrom.

In People v Palmer, the Supreme Court noted that:

"It is the function of the jury alone to listen to testimony, weigh the evidence and decide the questions of fact. People v Mosden, 381 Mich 506, 510; 164 NW2d 26 (1969). In determining the facts the jury may draw reasonable inferences from the facts established by either direct or circumstantial evidence. People v Weyonen, 247 Mich 308, 311; 225 NW 552 (1929).”

The fact that the complainant did not witness the actions of the defendant at the moment of penetration does not render the evidence insufficient where the circumstances of the assault and the graphic description of physical sensations strongly point to the achievement of penetration. We find ample evidence to establish this element of the offense.

Defendant’s argument that the prosecution did not establish the element of "personal injury” under the sexual assault statute likewise fails under the facts of the case. The complainant testified that defendant forcefully grabbed him around the neck and pushed him onto the bed immediately prior to the assault. Complainant suffered bruises and scratches which were evidenced by photographic documentation. We believe that such bruising, caused by the forceful application of a hand, constitutes personal injury within the meaning of the applicable statutory definition. We con-elude that there was sufficient evidence to meet the Johnson standard.

Second, defendant alleges that the trial court abused its discretion in denying defendant’s motion to suppress evidence of his prior criminal record.

In this case, the 76-year-old defendant moved to suppress any reference to his eight previous felony convictions. The sentence for the last such felony was enhanced when defendant was convicted on a supplemental information as an habitual offender in 1956. The trial court suppressed reference to four felonies, three CCW’s and a larceny over $100, but indicated if defendant testified, he could be impeached by reference to the other four felonies, robbery with physical harm in 1932, assault with intent to commit unarmed robbery in 1950, indecent liberties with a minor child in 1951, and unarmed robbery in 1955. Faced by this ruling, the defendant, understandably, chose not to testify.

On appeal, defendant claims the trial court’s ruling constituted an abuse of discretion. We find, contrary to the argument of defendant, that the trial court adequately articulated on the record the reasons for exercising its discretion in allowing the use of evidence of the prior convictions. We note that, in this regard, the discretion of the trial court is not unlimited. The fact that the trial judge states on the record that she is exercising her discretion does not preclude judicial review to determine whether there is an abuse of discretion.

While this case was tried prior to March 1, 1978, the effective date of the Michigan Rules of Evidence, Rule 609 is helpful and instructive in indicating the direction of the Supreme Court’s thinking.

If we were to apply Rule 609 here, there would be a threshold question of whether the time limit subsection would prohibit use of these felonies for purpose of impeachment, since all were committed more than 10 years ago.

However, for the 1955 conviction and enhanced sentence as an habitual offender in 1956, there is indication defendant continued to serve time in prison until 1968. As this would be less than 10 years before trial in 1977, Rule 609 would not necessarily, on that 10-year time limitation basis, prohibit use of evidence of the 1955 felony to impeach. Under Rule 609, the other three felonies concerning which the trial judge would have here permitted cross-examination by the prosecutor would not have been admissible.

Part of the reason for the 10-year limitation is to furnish protection to rehabilitated offenders from attacks on their credibility for youthful, or long-passed, felonious indiscretions. Obviously, that rationale does not apply to an eight-time offender whose convictions occur with regularity and extend over a 30-year period. As a matter of fact, this case poses the difficult question of how the rule should be applied in the case of a lifetime, career offender.

In addition, one of defendant’s previous felony convictions was for a sex offense, namely, indecent liberties with a minor child in 1951. Under People v Baldwin, similarity of offense is one factor militating against admissibility.

Applying the balancing test to whether or not to permit cross-examination of defendant concerning these four felonies, we hold that the probability of prejudice to defendant far outweighs its relevancy for purposes of determining credibility and that to permit cross-examination of defendant concerning these four felonies constituted an abuse of discretion. The transcript appears to indicate an issue concerning whether the victim consented to this homosexual act of penetration, a question which can best be resolved by a jury hearing both defendant and the victim. As a practical matter, a ruling which would permit extensive cross-examination of defendant regarding four previous felonies prevented defendant from testifying.

In the event of retrial, we would believe that, if defendant chooses to testify, the prosecution should be entitled to ask this defendant if he had ever been convicted of a felony. In this connection, the relevancy or admissibility of evidence of past convictions does not depend upon the degree of probability with which recidivists commit further felonies. Under the so-called bad guy rule, the Supreme Court has held such evidence inadmissible. The possibility of it becoming admissible only arises where a witness (defendant) places his credibility in issue. Even then, such evidence is now only admissible within the parameters of Rule 609. Consequently, we neither speculate nor rule as to what further inquiry, if any, could be permitted without unduly prejudicing the defendant.

Consistent with this analysis, we reverse defendant’s conviction and remand this case to the trial court.

Reversed and remanded.

V. J. Brennan, P.J.

(dissenting). I respectfully dissent from that portion of the majority opinion dealing with the inadmissibility of evidence of certain of the defendant’s prior convictions.

The trial judge did not have the new rules of evidence to follow at the time of this trial. What rules and case law were available she did follow very thoughtfully.

As the majority points out, the application of the provisions of Rule 609 to a lifetime career offender may be difficult. The question is what to admit and what not to when credibility is placed at issue.

I would, however, point out that a lifetime career offender with a bedsheet record has very little credibility, if any. When such a witness takes the stand to tell his story, he should have other witnesses to substantiate that story, because his testimony alone usually isn’t believed, and understandably so.

I do not feel that the trial judge here abused her discretion in ruling that evidence of certain prior convictions was admissible on the question of credibility. She was very careful in her review and did exclude evidence of four of defendant’s eight prior convictions.

Although the majority opinion does not say that Rule 609 is retroactive, I believe that is its position. In any event, my position is that it is not. Court-made rules are not retroactive unless so designated.

I would affirm the conviction.

       83 Mich App 1, 18; 268 NW2d 259 (1978).

        People v Sherman Hall, 77 Mich App 456, 463; 258 NW2d 517 (1977), People v Ross, 69 Mich App 705; 245 NW2d 335 (1976).

       392 Mich 370, 375-376; 220 NW2d 393 (1974).

       See also, People v Thompson, 76 Mich App 705, 710; 257 NW2d 268 (1977).

       There is indication in the record that defendant was paroled in 1968.

       The trial court was silent as to whether reference could be made to the habitual offender conviction.

       See, People v Jackson, 391 Mich 323; 217 NW2d 22 (1974), People v Cherry, 393 Mich 261; 224 NW2d 286 (1974), People v Castillo, 82 Mich App 476; 266 NW2d 460 (1978).

        People v Bennett, 85 Mich App 68, 72; 270 NW2d 709 (1978).

       The Supreme Court adopted the Michigan Rules of Evidence to be effective March 1, 1978.

       MRE 609(b) states:
      "Time limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date.”

       405 Mich 550; 275 NW2d 253 (1979).

       Some trial courts have made it a practice to permit one question: "Have you ever been convicted of a felony?” If the answer is in the affirmative, no further questions are permitted. Probably, such a rule would be approved by the Supreme Court. We suggest this only as one possible solution to an issue which obviously divides both appellate and trial courts and do not intend it as an exclusive method.

       See footnote 10 in the majority opinion.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    PEOPLE v HALE
    Docket No. 45262.
    Submitted January 4, 1980, at Lansing.
    Decided March 18, 1980.
    Richard O. Hale was convicted of felonious assault and of resisting arrest, Clare Circuit Court, Paul F. O’Connell, J. Defendant appeals, alleging that by his conviction of both crimes he was twice placed in jeopardy and that the felonious assault charge should not have been submitted to the jury. Held:

    1. It is not necessary to a finding of guilty of either felonious assault or resisting arrest that the jury must have found the defendant guilty of the other crime. The two crimes are independent offenses with independent proofs. The defendant was not subjected to double jeopardy.
    2. An object not dangerous per se may be considered a dangerous weapon if it is used in a dangerous manner. That decision is for the fact finder.
    Affirmed.
    1. Assault and Battery — Felonious Assault — Resisting Arrest — Double Jeopardy.
    Felonious assault and resisting arrest are not crimes such that proof of one necessarily requires proof of the other; conviction of both crimes, resulting from a single transaction, does not violate the prohibition against double jeopardy (MCL 750.82, 750.479; MSA 28.277, 28.747).
    2. Weapons — Assault and Battery — Felonious Assault — Dangerous Weapons — Criminal Law.
    An object, not dangerous per se, may be considered a dangerous weapon for purposes of the felonious assault statute if the object is used in a dangerous manner (MCL 750.82; MSA 28.277).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Richard S. Al

      len, Prosecuting Attorney (by Thomas C. Nelson, Assistant Attorney General, Prosecuting Attorneys Appellate Service), for the people.

      References for Points of Headnotes
    [1] 21 Am Jur 2d, Criminal Law §§ 182, 188, 189.
    [2] 79 Am Jur 2d, Weapons and Firearms § 1.

      Dreyer & McLaughlin, for the defendant on appeal.
    Before: Allen, P.J., and V. J. Brennan and Mackenzie, JJ.
   Per Curiam.

Defendant Richard Ora Hale was convicted by a Clare County Circuit Court jury of felonious assault, contrary to MCL 750.82; MSA 28.277, and resisting arrest, contrary to MCL 750.479; MSA 28.747. The charges stemmed from a fracas between defendant and Deputy Richard Miller of the Clare County Sheriffs Department. Defendant was sentenced to a prison term of 2-1/2 to 4 years on the felonious assault count and 15 months to 2 years on the resisting arrest count. Defendant appeals his convictions as of right, raising two issues.

Defendant first contends that his right not to be placed in double jeopardy was violated by his conviction of both felonious assault and resisting arrest. Defendant relies upon those decisions which have found a double jeopardy violation where, on the facts of the particular case, the trier of fact must have necessarily found the defendant guilty of one of the offenses in order to have found him guilty of the other. See People v Martin, 398 Mich 303; 247 NW2d 303 (1976), People v Stewart (On Rehearing), 400 Mich 540; 256 NW2d 31 (1977), People v Anderson, 83 Mich App 744; 269 NW2d 288 (1978).

This Court disagrees with defendant’s contention that the jury must have found him guilty of either crime as a prerequisite to finding him guilty of the other crime. Felonious assault under MCL 750.82; MSA 28.277, and resisting arrest under MCL 750.479; MSA 28.747, are independent offenses. It is not necessary that a physical interference be shown in order to establish a resisting arrest charge. People v Kelley, 78 Mich App 769; 260 NW2d 923 (1977). Likewise, the proof of felonious assault is independent from the proof of resisting arrest. We thus conclude that defendant’s argument is without merit.

Defendant also argues that the felonious assault charge should not have been submitted to the jury. The facts of the present case are that defendant repeatedly kicked the Clare County deputy in the groin area while the deputy was attempting to arrest defendant and pull him from his automobile. The information upon which defendant was tried indicated that the defendant used a dangerous weapon, to-wit: a shoe, in committing the assault upon the deputy.

In People v Buford, 69 Mich App 27; 244 NW2d 351 (1976), this Court held that a boot could be considered a dangerous weapon under the felonious assault statute. The Court relied upon the Michigan Supreme Court holding in People v Goolsby, 284 Mich 375, 378; 279 NW 867 (1938), that an object, not dangerous per se, could be considered a dangerous weapon for purposes of the felonious assault statute if it is used in a dangerous manner. We thus conclude that a shoe as well as a boot may be considered a dangerous weapon under the statute since it is an object that may be used in a dangerous manner. It is for the fact finder to determine if the shoe was, in fact, employed in a dangerous manner. In the instant case, we are unable to conclude that the shoe was not a dangerous weapon as a matter of law.

Affirmed.


text:
    PEOPLE v SMITH
    Docket No. 45337.
    Submitted January 15, 1980, at Detroit.
    Decided March 18, 1980.
    Jerry Smith was convicted, on his plea of guilty, of felonious assault. At the time of his plea before the Recorder’s Court of Detroit, Vern C. Boewe, J., defendant was not informed of the four-year maximum sentence for felonious assault, apparently because it was the understanding of all involved that defendant would be sentenced to a prison term of one year and two months to two years. The trial judge at sentencing realized that he was obligated to impose a four-year maximum sentence. The trial court informed defendant of the four-year maximum sentence and gave defendant the opportunity to withdraw his guilty plea. Defendant declined the offer to withdraw his guilty plea and, rather, stood by his prior plea. Defendant was sentenced to a prison term of one year and two months to four years. Defendant appeals alleging as error the failure to inform him of the maximum sentence prior to the acceptance of the guilty plea and the failure to afford him his right to allocution at sentencing. Held:

    1. The error of the trial court in failing to inform defendant of the maximum sentence prior to the acceptance of the guilty plea was overcome by the trial court’s subsequently informing defendant of the maximum sentence and the unaccepted offer to permit defendant to withdraw his guilty plea. To hold otherwise would remove from the trial court the ability to correct its own errors.
    2. The failure of the trial court to accord the defendant his right to allocution, that right being mandated by the court rules, necessitates remand for resentencing. The right of allocution must be accorded to the defendant even though any statement he might make would be meaningless in terms of the sentence received, since the term of the sentence was fixed by the plea bargain agreement.

      References for Points in Headnotes
    [1] 21 Am Jur 2d, Criminal Law §§ 487, 504, 505, 506, 510.5.
    [2] 21 Am Jur 2d, Criminal Law § 530.
    Necessity and sufficiency of question to defendant as to whether he has anything to say why sentence should not be pronounced against him. 96 ALR2d 1292.

      Conviction affirmed, but remanded for resentencing.
    1. Criminal Law — Plea of Guilty — Maximum Sentence — Subsequent Advisement —• Nonwithdrawal of Guilty Plea — Court Rules.
    Any error which arises out of the failure to advise a defendant of the maximum sentence prior to the acceptance of a plea of guilty is overcome where the trial court, prior to sentencing, advises the defendant of the maximum sentence and gives the defendant the opportunity to withdraw his guilty plea and the defendant, confronted with accurate information, chooses to stand by his guilty plea (GCR 1963, 785.7[l][b]).
    2. Criminal Law — Plea of Guilty — Sentencing — Right of Allocution — Court Rules.
    Remand for resentencing is mandated where a criminal defendant is not accorded his right to allocution; the right of allocution is mandatory (GCR 1963, 785.8[2]).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and William T. Morris, Assistant Prosecuting Attorney, for the people.

      Chari Grove, Assistant State Appellate Defender, for defendant on appeal.
    Before: M. J. Kelly, P.J., and Bronson and D. C. Riley, JJ.
   Per Curiam.

Defendant was convicted by his plea of guilty to the charge of felonious assault, MCL 750.82; MSA 28.277. He was sentenced to a prison term of from one year, two months to four years, and appeals as of right.

Defendant first argues his conviction should be reversed for the trial court’s failure to advise him of the four-year maximum sentence for felonious assault. GCR 1963, 785.7(1)(b). See Guilty Plea Cases, 395 Mich 96, 117-118; 235 NW2d 132 (1975). Apparently it was the original understanding of all involved that defendant would be sentenced to a term of one year and two months to two years. At sentencing, however, the trial court realized it was obligated to impose a four-year maximum. The trial court then informed defendant of the four-year maximum, and gave him the opportunity to withdraw his guilty plea. We hold this was sufficient to overcome the error resulting from the initial failure to advise defendant of the maximum sentence he faced. Realizing that a mistake had been made, the trial court corrected the error and then allowed the defendant a chance to withdraw or stand by his plea based on the correct information. To hold otherwise would remove from the trial court the ability to correct its own errors. Once confronted with an accurate version of the matter, defendant could have chosen to withdraw his plea and begin again, but instead he chose to stand by his plea of guilty. He cannot now claim his plea was given in the absence of information the trial court was required to impart.

Defendant next claims he should be resentenced because he was not given the right to speak before sentence was passed. The right of allocution has been made mandatory by GCR 1963, 785.8(2). The prosecution concedes that defendant was not accorded this right, but argues that, since there was a sentence agreement in the instant case, defendant’s allocution would be meaningless. This argument unduly limits the purpose of the allocution right. Standard 5.4(a)(iii) of the American Bar Association’s Standards Relating to Sentencing Alternatives and Procedures contains the allocution right, and the commentary to that section concedes that the major argument in favor of such a right is its therapeutic effect. Standing convicted of a crime, the defendant should be accorded the right to speak regardless of whether it will actually affect the sentence ultimately imposed. While any statement the defendant may make might be "meaningless” in terms of the sentence to be received, we cannot say that the individual defendant would regard his or her remarks as meaningless.

Defendant’s conviction is affirmed, and the case is remanded to the trial court for resentencing. Before resentencing, defendant will be invited to exercise his right of allocution.

Affirmed and remanded for resentencing.


text:
    PEOPLE v WILLSIE
    Docket No. 78-4259.
    Submitted November 14, 1979, at Lansing.
    Decided February 25, 1980.
    Gordon P. Willsie entered a plea of guilty but mentally ill to the offense of criminal sexual conduct in the first degree. Prior to acceptance of the plea, the Hillsdale Circuit Court, Kenneth G. Prettie, J., advised defendant of the constitutional rights which he would be waiving upon the acceptance of his plea. The plea of guilty but mentally ill was accepted. At sentencing, the trial court, at the request of the prosecutor, obtained a more detailed factual basis for the crime. The trial court did not again advise the defendant of the constitutional rights that were being waived before securing this more detailed factual basis. Defendant was thereafter sentenced to life imprisonment. Defendant appeals. Held:

    1. There is no error arising out of the failure of the trial judge to again advise defendant of the constitutional rights which his guilty plea waived before proceeding with the taking of the more detailed factual basis at the sentencing hearing. This is particularly true where the defendant has not asserted that the plea was coerced or given in ignorance, and the record gives no indication that the plea was not voluntarily, knowingly and understandingly made.
    2. The guilty but mentally ill statute does not violate the title-object provision of the Michigan Constitution. Neither does that statute violate the re-enact and republish provision of the Michigan Constitution. Accordingly, the circuit court had jurisdiction to determine whether defendant was mentally ill at the time of his offense.
    3. Defendant’s contention that his guilty plea is rendered invalid by reason of the fact that the plea was based upon a promise of psychiatric treatment which has not been kept is not supported by the record on appeal. No evidence in the record supports the allegation that defendant is not receiving proper care. Further, if the Department of Corrections is failing to provide the statutorily mandated psychiatric care, the appropriate remedy is a complaint for a writ of mandamus to compel the department to carry out its duty, not the setting aside of the guilty plea.

      References for Points in Headnotes
    [1] 21 Am Jur 2d, Criminal Law §§ 484-486.
    Court’s duty to advise or admonish accused as to consequences of plea of guilty, or to determine that he is advised thereof. 97 ALR2d 549.
    [2] 21 Am Jur 2d, Criminal Law §§ 31-45.
    73 Am Jur 2d, Statute §§ 22, 322-324.
    [3] 21 Am Jur 2d, Criminal Law § 505.
    60 Am Jur 2d, Penal and Correctional Institutions § 4.

      Affirmed.
    1. Criminal Law — Plea of Guilty — Constitutional Rights — Waiver of Rights — Advice of Rights — Readvisement of Rights — Court Rules. r
    A defendant who is advised at the time of the taking of a guilty plea of the constitutional rights which he waives by his plea need not be again advised of those rights where, at sentencing, the trial court, at the request of the prosecutor, obtains a more detailed factual basis for the crime and the defendant does not assert that the plea was coerced or given in ignorance and nothing in the record indicates that the plea was not voluntarily, knowingly and understandingly made (GCR 1963, 785.7).
    2. Constitutional Law — Criminal Law — Guilty But Mentally III — Title-Object Clause — Re-enact and Republish Clause — Statutes.
    The guilty but mentally ill statute is not constitutionally invalid under the title-object provision of the Michigan Constitution, nor is the trial court lacking in jurisdiction to determine whether a defendant is mentally ill at the time of the offense since that statute does not violate the re-enact and republish provision of the Michigan Constitution (Const 1963, art 4, §§ 24, 25, MCL 768.36[2]; MSA 28.1059[2]).
    3. Criminal Law — Plea of Guilty — Promises — Psychiatric Treatment — Appeal — Record on Appeal — Appropriate Remedy — Mandamus.
    A guilty plea is not rendered invalid by reason of the fact that the plea was based upon the promise that the defendant would receive adequate psychiatric treatment and a defendant claims he -is not receiving such treatment where the Court of Appeals finds nothing in the record before it establishing that the defendant is not receiving proper care; further, the appropriate remedy, if the Department of Corrections is failing to provide adequate care, is a complaint for a writ of mandamus to compel the department to carry out its duty, not the setting aside of the guilty plea.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Ronald C. Zeller, Prosecuting Attorney (by Leonard J. Malinowski, Assistant Attorney General, Prosecuting Attorneys Appellate Service), for the people.

      Kim Robert Fawcett, Assistant State Appellate Defender, for defendant on appeal.
    Before: T. M. Burns, P.J., and Cynar and A. M. Bach, JJ.

       Former circuit judge, sitting on tibie Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

   Per Curiam.

Defendant Gordon Willsie appeals of right his conviction of July 7, 1978, based on his plea of guilty but mentally ill to the offense of criminal sexual conduct in the first degree. MCL 750.520b(1); MSA 28.788(2)(1). On July 17, 1978, he was sentenced to life imprisonment. We affirm.

We reject defendant’s argument that he is entitled to have his plea vacated because he was not readvised on July 17, 1978, of the rights contained in the court rule. On July 7, 1978, defendant was advised of the constitutional rights that he would be waiving by pleading guilty. Although defense counsel waived "any further detail” in the factual basis for the crime, the prosecutor objected to the lower court’s acceptance of the plea without a more complete statement of its factual basis. Notwithstanding the prosecutor’s objection, the lower court accepted defendant’s plea. However, at the July 17 sentencing, the lower court granted the prosecutor’s request and obtained a more detailed factual basis for the crime. At no time between the date that he offered his plea and the date of his sentencing did defendant seek to withdraw his plea.

Defendant’s argument on this point has less merit than that presented by the appellant in People v Kosecki, 73 Mich App 293; 251 NW2d 283 (1977). There, a panel of this Court rejected a similar argument despite the fact that in that case the defendant had attempted to withdraw his plea prior to the date of sentencing. Further, under the holding of the Supreme Court in the Guilty Plea Cases, 395 Mich 96; 235 NW2d 132 (1975), cert den 429 US 1108; 97 S Ct 1142; 51 L Ed 2d 561 (1977), even if the lower court had not obtained on July 17 a more detailed statement of the factual basis of the crime, defendant would not, for that reason alone, be entitled to withdraw his plea. Rather, it would be the duty of this Court to remand and permit the prosecutor to establish a factual basis for the plea.

The recital of constitutional rights enumerated in GCR 1963, 785.7 is not a mere talismanic chant that simply validates guilty pleas. Rather, its practical purpose is to ensure that a defendant who wishes to plead guilty to a criminal charge does so voluntarily with full knowledge and understanding of his actions. Nothing contained in the record before us would lead us to believe that defendant’s plea was not voluntarily, knowingly or understanding^ made. Further, defendant does not even assert in this appeal that his plea was coerced or given in ignorance. Therefore, we decline to accept defendant’s argument and reduce court rule 785.7 to the status of a pro forma litany.

Defendant also raises several constitutional challenges to the validity of the guilty but mentally ill statute. MCL 768.36(2); MSA 28.1059(2). Defendant’s argument that the lower court lacked the jurisdiction to make a determination as to whether he was mentally ill at the time of the offense and his argument that the guilty but mentally ill statute violates the title-object clause of the Michigan Constitution, Const 1963, art 4, § 24, were both raised and disposed of by this Court in People v Sharif, 87 Mich App 196; 274 NW2d 17 (1978).

We are not persuaded by defendant’s argument that the guilty but mentally ill statute violates Const 1963, art 4, § 25, because the Legislature did not re-enact and republish certain sections of the Mental Health Code that defendant claims were amended by the guilty but mentally ill statute. Specifically, defendant claims that the guilty but mentally ill statute amended § 400(g) of the Mental Health Code. MCL 330.1400(g); MSA 14.800(400)(g). This section of the Mental Health Code defines the term "court” for purposes of Chapter 4 of the Mental Health Code. However, we note that the criminal provisions of the Mental Health Code are set forth in Chapter 10 of the Code, MCL 330.2000-330.2050; MSA 14.800(1000)-14.800(1050), and in that chapter the term "court” is undefined. Therefore, because the scope of the term "court” in Chapter 10 of the Mental Health Code was not altered by passage of the guilty but mentally ill statute, Const 1963, art 4, § 25 has not been violated.

Defendant’s final appellate argument is that his plea was illusory because it was based upon a promise that he would receive special psychiatric treatment and no such special treatment has been given him. We find no evidence in the record to support this allegation. As was noted in People v Sorna, 88 Mich App 351, 362; 276 NW2d 892 (1979), if the Department of Corrections is failing to provide the psychiatric care required under the guilty but mentally ill statute, the appropriate remedy would be a complaint for a writ of mandamus to compel the Department of Corrections to carry out its duty. Nonetheless, on the record before us we cannot say that defendant is not receiving proper care.

Affirmed.


text:
    PEOPLE v VAN DORSTEN
    Docket No. 77-1930.
    Submitted January 5, 1979, at Grand Rapids.
    Decided August 22, 1979.
    Leave to appeal applied for.
    Charles Van Dorsten was convicted of delivery of heroin and of being a second felony offender, Calhoun Circuit Court, Stanley Everett, J. Defendant appeals, alleging several errors. Held:

    1. The trial judge did not abuse his discretion by ruling that evidence of certain prior convictions of the defendant could be admitted for impeachment purposes if the defendant chose to take the witness stand.
    2. Denial of the defendant’s motion for a new trial on the basis of newly discovered evidence was not an abuse of discretion where the new evidence was not likely to have produced a different result at a new trial.
    3. The trial court properly determined that certain evidence sought to be introduced by the defendant was irrelevant.

      4. The issue of an accomplice’s testimony was not so tightly drawn as to require the trial court to give sua sponte a cautionary instruction regarding accomplice testimony.
    5. No reversible error was created by asking a witness whether he had previously dealt with the defendant where, before the question was answered, an objection by the defense was sustained and a cautionary instruction was given to the jury.
    6. Failure to object to an allegedly prejudicial statement by the prosecutor precludes appellate review of the issue of the propriety of the statement where the prejudicial effect of the statement is not so great that it could not have been cured by a cautionary instruction.

      References for Points in Headnotes
    [1] 58 Am Jur 2d, New Trial § 164 et seq.

    [2] 29 Am Jur 2d, Evidence § 251.
    [3] 75 Am Jur 2d, Trial § 818.
    Necessity of, and prejudicial effect of omitting, cautionary instructions to jury as to accomplice’s testimony against defendant in criminal trial. 17 ALR Fed 249.
    [4] 5 Am Jur 2d, Appeal and Error § 624 et seq.

    [5] 5 Am Jur 2d, Appeal and Error § 808. 81 Am Jur 2d, Witnesses §435.
    [6] 75 Am Jur 2d, Trial §§ 1025, 1027.
    [7] 65 Am Jur 2d, Quo Warranto § 18 et seq.

      7. A witness’s inadvertent and unexpected answer, referring to the defendant’s sentence for a previous crime, does not require reversal where the trial court instructed the jury to disregard the answer.
    8. The trial court had the discretion to permit certain papers and documents to be taken into the jury room for consideration by the jury.
    9. The defendant may not challenge in this criminal case the assistant prosecutor’s authority to sign the arrest warrant. That challenge may he made in a quo warranto proceeding only.
    Affirmed.
    1. New Trial — Newly Discovered Evidence.
    The grant of a new trial on the ground of newly discovered evidence is discretionary with the trial court; a new trial should not be granted unless it is shown that the evidence is newly discovered and not merely cumulative, that the party offering the evidence could not have discovered and produced it at trial with reasonable diligence, and that the use of the evidence would probably render a different result on a retrial of the matter.
    2. Evidence — Relevance of Evidence — Judge’s Discretion.
    The determination of the relevance of evidence is within the discretion of the trial court.
    3. Evidence — Criminal Law — Accomplice Testimony — Instructions to Jury.
    A trial court should give sua sponte a cautionary jury instruction regarding the testimony of an accomplice where the issue of credibility is tightly drawn, such as where the sole evidence linking a defendant to an offense is the testimony of the accomplice and the defendant makes a denial of that accomplice’s testimony.
    4. Criminal Law — Prosecutor’s Statements — Failure to Object.
    The failure to object at trial to a prosecutor’s statement in closing argument precludes appellate review of the issue of the propriety of the statement where the prejudicial effect of the statement was not so great that it could not have been cured by a cautionary instruction to the jury.

      5. Witnesses — Unanticipated Answers.
    A witness’s inadvertent and unanticipated answer to a proper question, in which the witness referred to a defendant’s sentence for a previous crime and which the trial court instructed the jury to disregard, did not create error requiring reversal of the defendant’s conviction.
    6. Jury — Documents — Consideration by Jury — Judge’s Discretion.
    It is within the discretion of a trial court to permit papers and documents to be taken into the jury room for the consideration of the jury.
    7. Quo Warranto — Public Officers — Authority to Hold Office.
    A challenge to test the right of a person to hold and exercise the authority of a public office may be raised only in a quo warranto proceeding.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James Norlander, Prosecuting Attorney, and Conrad Sindt, Senior Assistant Prosecutor, for the people.

      Domnick J. Sorise, Assistant State Appellate Defender, for defendant on appeal.
    Before: D. E. Holbrook, Jr., P.J., and R. B. Burns and M. J. Kelly, JJ.
   Per Curiam.

Defendant appeals as of right his November 4, 1976, jury conviction for delivery of heroin, contrary to MCL 335.341(1)(a); MSA 18.1070(41)(1)(a), and his January 6, 1977, jury conviction as a second felony offender, contrary to MCL 769.10; MSA 28.1082. He was sentenced on February 4, 1977, to a prison term of not less than 15 years nor more than 30 years. On this date he also moved for a new trial based upon new evidence, but this motion was denied. Defendant now appeals as of right raising numerous issues.

Defendant’s primary contention on appeal was that the trial judge abused his discretion in ruling that evidence of his prior convictions for forgery and indecent liberties would be admissible for impeachment purposes if defendant chose to testify. A review of the record indicates that the trial judge listened to the arguments of both counsel prior to his ruling on this motion. He then determined that evidence of both convictions would be admissible for impeachment purposes, but would be admissible only as evidence of unnamed prior convictions so as to prevent prejudice, and would be the subject of a limiting instruction given to the jury. We are convinced the trial judge adequately recognized that the decision to allow impeachment by evidence of prior convictions was within his discretion, and that he did not abuse this discretion by ruling in favor of the admissibility of the evidence of the prior convictions. People v Jackson, 391 Mich 323; 217 NW2d 22 (1974), People v Cherry, 393 Mich 261; 224 NW2d 286 (1974), People v Worden, 91 Mich App 666; 284 NW2d 159 (1979).

Defendant’s second contention is that the trial court erred in not granting his motion for new trial. The grant of a new trial on the ground of newly discovered evidence is discretionary with the trial court. People v Howard, 78 Mich App 592; 261 NW2d 15 (1977). In order for the defendant to be entitled to a new trial it must be shown that the evidence is newly discovered and not merely cumulative, that the party offering the new evidence could not have discovered and produced it at trial with reasonable diligence, and that its use would probably render a different result on a retrial of the matter. People v Barbara, 400 Mich 352, 362; 255 NW2d 171 (1977). After the filing of the motion for a new trial the trial court held an evidentiary hearing in which it heard the testimony of George Worden, Michael Martin, Randall Duck, Charles Van Dorsten, John Ripple and Karen Van Dorsten. A review of the pertinent parts of their testimonies indicates that Mr. Worden testified that Mr. Ripple told him that he (Ripple) did not know defendant Van Dorsten but would lie about his involvement in the drug transaction. Mr. Martin testified that Ripple told him that he was going to lie about Van Dorsten’s involvement in the drug transaction. He indicated that he had relayed this information to Van Dorsten in April of 1976. However, after a noon recess in which he had lunch with Van Dorsten, he modified his testimony to indicate that he had only told Van Dorsten that Ripple had sold his name in April of 1976 and that he had not informed Van Dorsten of the full details of his conversation with Ripple until January, 1977. Mr. Duck then testified that Ripple told him about the drug bust but had never mentioned Van Dorsten’s name. Mr. Van Dorsten then took the stand and confirmed that Mr. Worden, Mr. Martin and Mr. Duck had informed him of their conversations with Mr. Ripple. Mr. Ripple then testified that he never told anyone, much less Mr. Worden, Mr. Martin and Mr. Duck, that he intended to testify falsely against Mr. Van Dorsten. He further testified that he had met Mr. Van Dorsten in January of 1975 in Detroit, four months before the drug transaction took place, and that he had once met Mrs. Van Dorsten at her home. Mrs. Van Dorsten then took the stand and testified that Mr. Van Dorsten was home the entire month of January, 1975 recuperating from a gunshot wound arid that he had not, to the best of her knowledge, been in Detroit during that time. After hearing this testimony the trial judge denied defendant’s motion for a new trial. In making this determination he found that while Mr. Martin’s testimony would have been available to defendant prior to his trial with the exercise of reasonable diligence, neither the testimony of Mr. Worden nor Mr. Duck could have been produced. He also determined that their testimony would not be merely cumulative but ultimately concluded that had it been presented at trial it would not have been highly probable that a different result would have occurred. We agree with the trial court’s determination. The only relevancy of this testimony concerned Mr. Ripple’s credibility. His credibility had already been attacked by the introduction of evidence of his prior criminal convictions as well as an indication that he was testifying against Mr. Van Dorsten in order to fulfill a plea bargain which was advantageous to himself. Clearly Mr. Ripple’s credibility had already been sufficiently impeached to alert the jury of the possibility that he might not be telling the truth in order to prevent further imposition of punishment upon himself. The additional testimony would not have significantly enhanced this prior impeachment, especially since the credibility of these witnesses was also subject to impeachment based upon their prior conviction records. For these reasons, it was not error for the trial court to deny defendant’s motion for a new trial.

Defendant’s remaining contentions of error are without merit and will be addressed only briefly. Defendant sought to have Mr. Ripple testify and name the individual who gave him defendant’s phone number. The trial court held that this question was irrelevant and did not require Ripple to answer. The determination of relevance is within the trial court’s discretion. People v Miller, 78 Mich App 336; 259 NW2d 877 (1977). In this instance, we agree with the trial court that the name of the individual from whom Ripple got defendant’s phone number has no relevance.

The trial court did not sua sponte give a cautionary instruction regarding the accomplice testimony of Ripple, but did give a general cautionary instruction concerning the credibility of witnesses. People v McCoy, 392 Mich 231; 220 NW2d 456 (1974), held that it was reversible error for a court not to give sua sponte a cautionary instruction regarding an accomplice’s testimony where the issue was tightly drawn. People v Gordon Hall, 77 Mich App 528; 258 NW2d 547 (1977), indicates that the issue is tightly drawn where the sole evidence linking a defendant to an offense is the testimony of the accomplice and defendant makes a total denial of this accomplice’s testimony. In this instance there was other evidence linking defendant to the crime, convincing us that the issue is not so tightly drawn as to require a sua sponte cautionary instruction.

At trial testimony was received concerning the quality of the heroin which defendant was charged with delivering. This testimony was hot objected to, but even if it had been its admission would not constitute reversible error. People v Castillo, 82 Mich App 476; 266 NW2d 460 (1978). The prosecutor also asked Ripple whether he had ever done business with defendant in the past. Before his answer was received, defense counsel objected and the trial court sustained this objection. After sustaining this objection the trial court instructed the jury that any other contact between Ripple and the defendant prior to the date of the transaction was not to be considered as relating to innocence or guilt. In view of this cautionary instruction there was no reversible error created by the asking of the question. See People v Moss, 70 Mich App 18, 34; 245 NW2d 389 (1976) (M. J. Kelly, J., concurring).

Defendant contends that the prosecution improperly bolstered the credibility of Ripple in its closing argument by stating that the only way he could get the deal he did was to put his finger on the right man. The prejudicial effect of this statement is not so great that it could not have been cured by cautionary instruction, and defendant’s failure to object bars this issue from appellate review. People v Hernandez, 80 Mich App 465; 264 NW2d 343 (1978).

Defendant’s contentions of error concerning his second felony offender trial are also without merit. Mrs. Goins, the mother of the victim of defendant’s indecent liberties conviction, volunteered information concerning defendant’s sentence. Her testimony was struck and the trial judge instructed the jury to disregard it. Her statement was an inadvertent and unanticipated answer to a proper question and does not create reversible error. People v Almond, 67 Mich App 713; 242 NW2d 498 (1976). Nor was it error for the trial court to deliver the exhibits to the jury in the absence of a request. It is within the discretion of the trial court to permit papers and documents to be taken into the jury room for the consideration of the jury, People v Benberry, 24 Mich App 188; 180 NW2d 391. (1970), and the trial court may do this on its own motion. People v Ciatti, 17 Mich App 4; 168 NW2d 902 (1969).

Defendant’s final contention is that the district court was without jurisdiction over him because he was bound over to the circuit court on the arrest warrant that was signed by a prosecuting attorney who had not been sworn to his post. There is nothing in the lower court record to indicate that Prosecutor Le Beuf was not sworn in as an assistant prosecuting attorney, and thus the issue is not properly before this Court. Additionally we note that People v Russell, 347 Mich 193; 79 NW2d 603 (1956), indicates that challenges to test the right of a person to hold and exercise the authority of a public office may not be raised in a motion to dismiss but only in a quo warranto proceeding. Thus, under this authority, it is clear that defendant may not challenge Prosecutor Le Beufs authority to sign the arrest warrant in this proceeding.

Affirmed.


author: Per Curiam. T. M. Burns, J.

text:
    PEOPLE v HUTCHERSON
    Docket No. 78-1869.
    Submitted September 4, 1979, at Grand Rapids.
    Decided January 10, 1980.
    Defendant, Rickey L. Hutcherson, was charged with assault with intent to rob being armed and felony-firearm and was convicted, on his pleas of guilty, of assault with intent to commit criminal sexual conduct involving penetration and felony-firearm in the Kent Circuit Court, George V. Boucher, J. Defendant appeals. Held:

    1. A court rule states: "[i]f the defendant pleads guilty, the court, by questioning him, shall establish support for a finding that he is guilty of the offense charged or the offense to which he is pleading”. This requirement is met if the court elicits from the defendant support for a finding that he is guilty of either the charged offense or the offense to which he is pleading. The plea was not defective because the questioning of defendant established support for a finding that defendant was guilty of the crime charged.
    2. Conviction of both assault with intent to commit criminal sexual conduct involving penetration and felony-firearm does not violate the constitutional prohibition against double jeopardy.
    3. The trial court’s failure to inform the defendant of the consequences of a pending, unrelated escape charge does not affect the validity of his plea.
    4. The defendant was a potential subject of habitual offender supplementation; therefore, the prosecutor’s promise not to charge defendant as a habitual offender in return for his plea did not render the plea bargain illusory.

      References for Points in Headnotes
    [1,6] 21 Am Jur 2d, Criminal Law § 484 et seq.

    [2] 21 Am Jur 2d, Criminal Law §§ 188, 189.
    [3] 21 Am Jur 2d, Criminal Law §§ 488-490.
    Court’s duty to advise or admonish accused as to consequences of plea of guilty, or to determine that he is advised thereof. 97 ALR2d 549.
    [4] 21 Am Jur 2d, Criminal Law § 487.
    39 Am Jur 2d, Habitual Criminals and Subsequent Offenders § 19.
    [5] 5 Am Jur 2d, Appeal and Error § 962.
    21 Am Jur 2d, Criminal Law § 485.

      5. Defendant, in the trial court, moved to withdraw his plea, alleging that it was involuntary. The court never decided the issue of voluntariness.
    Remanded for a hearing on the issue of voluntariness.
    T. M. Burns, J., concurred in part and dissented in part. He concurred in the remand for a hearing on the issue of voluntariness but disagreed with the holding that the establishment of support for a finding that defendant was guilty of the crime charged satisfied the court rule governing guilty pleas. He would also remand for a hearing to allow the prosecutor to establish the missing elements of assault with intent to commit criminal sexual conduct involving penetration, with instructions that the plea be vacated in the event the prosecutor is unable to do so.
    Opinion op the Court
    1. Criminal Law — Plea op Guilty — Court Rules.
    A court rule states: "[i]f the defendant pleads guilty, the court, by questioning him, shall establish support for a finding that he is guilty of the offense charged or the offense to which he is pleading”; this requirement is met if the court elicits from the defendant support for a finding that he is guilty of either the charged offense or the offense to which he is pleading (GCR 1963, 785.7[3][aj).
    2. Assault and Battery — Felony-Firearm — Constitutional Law — Double Jeopardy.
    Conviction of both assault with intent to commit criminal sexual conduct involving penetration and felony-firearm does not violate the constitutional prohibition against double jeopardy.
    3. Criminal Law — Plea op Guilty — Other Pending Charges.
    A plea of guilty is unaffected by the trial court’s failure to inform the defendant of the consequences of a pending charge for an unrelated offense.
    4. Criminal Law — Plea of Guilty — Habitual Offenders.
    A plea bargain was not illusory where the prosecutor agreed not to charge the defendant as a habitual offender and where the defendant was in fact a potential subject of habitual offender supplementation.

      5. Appeal — Criminal Procedure — Criminal Law — Plea of Guilty — Voluntariness of Plea.
    The Court of Appeals should remand a case for an evidentiary hearing on the issue of the voluntariness of a defendant’s plea of guilty where the issue was timely raised in the trial court but not decided.
    Partial Concurrence and Partial Dissent by T. M. Burns, J.
    6. Criminal Law — Plea of Guilty — Court Rules.

      The court rule which states: ”[i]f the defendant pleads guilty, the court, by questioning him, shall establish support for a fínding that he is guilty of the offense charged or the offense to which he is pleading’’ requires that the court satisfy itself that the defendant has pled to an offense of which he might have been convicted at trial (GCR 1963, 785.7[3][a]).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, David H. Sawyer, Prosecuting Attorney, and Carol S. Irons, Assistant Prosecuting Attorney, for the people.

      Buth, Wood & Weidaw (by George S. Buth and Stephen M. Tuuk), for defendant.
    Before: Allen, P.J., and R. B. Burns and T. M. Burns, JJ.
   Per Curiam.

On December 8, 1977, defendant pled guilty to assault with intent to commit criminal sexual conduct involving penetration, contrary to MCL 750.520g(1); MSA 28.788(7)(1), and possession of a firearm in the commission thereof, contrary to MCL 750.227b; MSA 28.424(2). On March 20, 1978, he was sentenced to prison for six to ten years on the assault charge and to a consecutive sentence of two years on the felony-firearm charge. A number of issues are raised on appeal.

. First, defendant claims that his guilty plea on the assault charge was defective because the trial court failed to elicit a sufficient factual basis pursuant to GCR 1963, 785.7(3)(a). In particular, defendant contends that his plea to the crime of assault with intent to commit criminal sexual conduct involving penetration was defective because the elements of that charge were not made out by his recitation of the facts. The prosecution concedes this fact but asserts that GCR 1963, 785.7(3)(a) does not require recitation of facts which support the charge of assault with the intent to commit criminal sexual conduct where the facts pleaded support a finding that defendant is guilty of the offense charged.

GCR 1963, 785.7(3)(a) states:

"If the defendant pleads’ guilty, the court, by questioning him, shall establish support for a finding that he is guilty of the offense charged or the offense to which he is pleading.” (Emphasis supplied.)

Since defendant was originally charged with assault with intent to rob while being armed (MCL 750.89; MSA 28.284) and since he acknowledged during the plea taking that he had committed armed robbery of the victim, we conclude that a sufficient factual basis was obtained in conformity with GCR 1963, 785.7(3)(a). People v Sinclair, 58 Mich App 609, 612-613; 228 NW2d 486 (1975), cf. People v Hooper, 58 Mich App 132; 227 NW2d 250 (1975).

Next, defendant claims that his conviction under the felony-firearm statute is invalid because the statute violates his constitutional right against double jeopardy. This claim was recently settled and has been rejected by the Michigan Supreme Court in Wayne County Prosecutor v Recorder’s Court Judge, 406 Mich 374; 280 NW2d 793 (1979).

Third, defendant contends that, because he was not advised during his plea of the sentence consequences regarding a possible escape charge, a knowing and understanding plea was not entered. The record clearly indicates that the trial judge informed the defendant that if he was on probation or parole at the time of the violation for which he was presently pleading, he could be sentenced for violating probation or parole. This conforms with GCR 1963, 785.7(1)(e). That defendant may also have been subject to further sentencing based upon a separate, substantive criminal charge of escape is inconsequential to the voluntariness or understanding of defendant’s plea to the instant charge. Thus, the trial court’s failure to inform the defendant of the consequences of a pending charge for escape from a work release program is legally insignificant since it involves an unrelated offense upon which the instant plea has no effect.

Fourth, defendant claims that his plea was a product of an illusory bargain because as part of the agreement in exchange for defendant’s plea, the prosecutor agreed that "there will be no charge made against Mr. Hutcherson as an habitual offender”. Defendant argues that since the prosecutor was fully aware of defendant’s previous felony conviction and chose not to charge him under the habitual offender statute (MCL 769.10 et seq.; MSA 28.1082 et seq.) prior to the plea taking, he was precluded from doing so under the rule announced in People v Fountain, 407 Mich 96; 282 NW2d 168 (1979). Since the prosecution could not legally apply the habitual offender statute to the defendant, it is claimed that the use of this statute as a bargaining tool rendered the bargain illusory, mandating reversal under People v Roderick Johnson, 86 Mich App 77, 79; 272 NW2d 200 (1978). We disagree.

People v Fountain, supra, involved two distinct situations in which the prosecutor filed supplemental informations under the habitual offender statute following the defendant’s convictions by trial. In contrast, the instant situation involves a negotiated plea by defendant, represented by counsel, and the prosecutor not to charge defendant as an habitual offender. The agreement was reached prior to defendant’s plea. Presumably, if an agreement had not been reached, the prosecutor would have pursued all of the pending and potential charges against defendant. The rule announced in Fountain does not preclude the prosecutor from proceeding with a prosecution under the habitual offender act so long as its action is prompt, providing fair notice to the accused sufficiently in advance of a conviction on the current charge. Since, at the time the plea bargain was made and accepted, the accused was in fact "a potential subject of habitual offender supplementation” the offer by the prosecutor to forego supplementation as part of the plea agreement was not illusory. People v Roderick Johnson, supra, 79.

Finally, defendant claims that he is entitled to a remand for an evidentiary hearing to determine whether his plea was "involuntary in fact” allegedly because his attorney misinformed him regarding the offense to which defendant would plead guilty.

We note that the factors alleged by defendant in the instant case as rendering his plea involuntary are materially different from the factors relied on by the Courts in People v James, 393 Mich 807, 808 (1975), and People v Walker, 75 Mich App 552; 255 NW2d 658 (1977), relied on by defendant. Here, defendant claims that an unkept promise by his attorney that defendant would be able to plead guilty to a charge other than the one to which he ultimately pleaded caused an improperly induced plea. This was followed by defendant’s motion to withdraw his plea, which was apparently never ruled on by the lower court. In contrast, in People v James, supra, and People v Walker, supra, the Courts were confronted with situations in which there was a possibility of coercion as a matter of fact, arising from the prosecutor’s promise of leniency for defendant’s relative in exchange for a guilty plea to the current charge.

Nonetheless, because the trial judge did not rule on the defendant’s motion to withdraw his plea, we remand for an evidentiary hearing as to the voluntariness of defendant’s plea. The trial judge shall determine, after an evidentiary hearing, whether defendant was improperly induced by his trial counsel to plead to assault with intent to commit criminal sexual conduct involving penetration, after being assured by counsel that his plea would be to assault with intent to commit a felony. If so, defendant’s convictions on the instant charges are reversed and should be set for trial. If not, or if it is determined that defendant voluntarily chose to plead to the instant offenses, notwithstanding his attorney’s assurances to the contrary, then the convictions are affirmed.

Remanded. This Court retains no further jurisdiction.

T. M. Burns, J.

(concurring in part; dissenting in part). I agree that this case ought to be remanded for an evidentiary hearing on the voluntariness of defendant’s plea. However, I disagree with the majority’s interpretation of GCR 1963, 785.7(3)(a). The majority would support defendant’s guilty plea conviction of assault with intent to commit criminal sexual conduct involving penetration even though there is no factual support for this conviction in the guilty plea transcript.

In People v Haack, 396 Mich 367, 378; 240 NW2d 704 (1976), the Supreme Court, quoting People v Coates, 32 Mich App 52, 70; 188 NW2d 265 (1971) (Levin, J., dissenting), stated:

"A guilty plea 'may be accepted even though the defendant is unsure of his guilt and even where he denies his guilt if after careful inquiry the judge satisfies himself that there is a substantial factual basis for the plea and that the plea represents a well-considered and well-advised choice by the defendant’.” (Emphasis in original.)

In the instant case there is no "substantial factual basis for the plea”. The construction given this Court Rule by the majority does an injustice to the spirit of this Court Rule as evidenced by the Supreme Court’s opinion in the Guilty Plea Cases, 395 Mich 96, 129; 235 NW2d 132 (1975), cert den sub nom Saunders v Michigan, 429 US 1108; 97 S Ct 1142; 51 L Ed 2d 561 (1977), where the Supreme Court reviewed the factual basis of the various pleas by the defendants before it and affirmed many of them on the basis that "it appears on the record that the defendant pled guilty to an offense of which he might have been convicted at trial”.

On the facts presented at the guilty plea proceeding below, defendant could not have been convicted by a jury of assault with intent to commit criminal sexual conduct involving penetration. It is irrelevant that he could have been convicted of any other charge because it was this crime that he pleaded guilty to. Therefore, I would hold that on remand the prosecutor be required to establish the missing elements of this crime. Id., 129. If he is able to do so, then defendant’s conviction should be affirmed. However, if the prosecutor is unable to do so, defendant’s guilty plea should be vacated.


text:
    In re SELLE ESTATE
    Docket No. 43491.
    Submitted January 15, 1980, at Detroit.
    Decided February 26, 1980.
    Max Selle and Mary V. Selle entered into an antenuptial agreement which provided that their separate property before marriage would remain separate and property acquired during marriage would take on all legal attributes of jointly owned property. The parties jointly purchased a vendee’s interest in a lot. Thereafter Max Selle entered into an agreement to construct a house on the lot. Loans for construction were secured by funds in his personal savings accounts rather than by encumbrances on the real property. Then Max Selle died and Mary was appointed special administratrix of his estate. Mary’s petition to payoff the loans with money from the decedent’s personal savings accounts was granted by the probate court. The petition made no mention of the use of the loan proceeds to finance construction of the house or that the property was for sale. Thereafter she sold the property, paid the builder, paid the closing expenses and retained the proceeds. Mary filed a first and final account which listed the loan repayment as an expenditure. A legatee, Hilda Garvin, objected to Mary’s account. A hearing was held and the probate court disallowed the loan repayment expenditure and directed Mary to reimburse the estate. The court concluded that she was guilty of self-dealing. Oakland Circuit Court, Richard D. Kuhn, J., affirmed the probate court order. Mary Selle appeals by leave granted. Held:

    The house and lot belonged to Max and Mary by the entire-ties since both purchased the vendee’s interest. Therefore, when Max died, Mary acquired title as the survivor, not under the statutes of descent but by death of the other tenant and by operation of law. When the property was sold after Max’s death Mary was entitled to keep the proceeds since it was her property. The probate and circuit courts assumed that a loss was suffered by the estate by payment of the loans with Max’s personal accounts rather than the proceeds from the sale of the house. However, the loans were secured by savings accounts, not the real property, and the bank would have looked to those accounts for'payment, having no rights in the property. Mary Selle’s action did not cause a loss to the estate; therefore, the probate court erred in charging her with the amount of the loan payments.

      Reference for Points in Headnote
    [1] 41 Am Jur 2d, Husband and Wife §§ 55, 72.

      Reversed and remanded.
    Husband and Wipe — Estates by the Entirety — Survivorship — Statutes op Descent — Operation of Law.
    A lot is held by both husband and wife by the entirety where the wife’s name appears along with her husband’s as a purchaser in a land contract under which the lot was purchased; if a house is constructed on the lot, it becomes part of the realty and both the house and the lot belong to the husband and wife as entireties property and where one dies, the title devolves to the survivor, not under the statutes of descent, but by death of the other tenant and by operation of law.

      Hampton, Snavely, Ranno, Lightbody & Girard, for the estate of Max Selle.

      Sauer, Sterling & Stout, for Hilda Garvin.

      John H. Waldeck, for Mary V. Selle.
    Before: M. J. Kelly, P.J., and Bronson and D. C. Riley, JJ.
   Per Curiam.

Mary V. Selle was granted leave to appeal circuit court orders of June 7 and June 28, 1978, which affirmed orders of the Oakland County Probate Court. The probate court had found that Mrs. Selle acted improperly as special administratrix of her deceased husband’s estate in repaying certain loans and charged her with the amount of the repayments. It also denied her petition for a widow’s allowance on the ground that she waived her right to such an allowance in an antenuptial agreement. Mrs. Selle appealed to the circuit court, which affirmed the decision on the loan repayment issue and dismissed the appeal on the widow’s allowance issue, which was filed separately, on the ground that the filing was not timely under GCR 1963, 701.2. Mrs. Selle filed a motion for an order allowing a belated appeal, which was denied by the circuit court. Her application for leave to appeal the circuit court orders was granted by this Court on May 4, 1979.

Mary V. and Max Selle entered into an antenuptial agreement on June 23, 1965, immediately before their marriage, which provided, inter alia, that property owned by the parties prior to their marriage would remain separate property and property acquired jointly during the marriage would take on "all legal attributes of jointly owned property”. The agreement also contained a provision under which Mrs. Selle waived her rights to dower and permanent alimony, and accepted the agreement "in lieu of all other statutory rights and benefits”.

The parties jointly purchased the vendee’s interest in a lot in December, 1969, and on March 3, 1973, Max Selle entered into an agreement which called for construction of a house on the lot. Mr. Selle financed construction of the house by obtaining bank loans and he arranged the financing so that the loans were secured by funds in his personal savings accounts with the bank, rather than by encumbrances on the real property. The apparent purpose of the development of the lot was profit from the investment rather than use of the house as a residence for the Selles, and shortly after completion of the house in September, 1973, the property was listed for sale. Max Selle died on May 1, 1974, and Mrs. Selle was appointed special administratrix of his estate on May 13, 1974. The decedent’s will nominated two of his friends as co-executors of the estate and did not name Mrs. Selle as a beneficiary, referring to the antenuptial agreement. On June 4, 1974, Mrs. Selle filed a petition for instructions requesting, inter alia, that the probate court issue an order permitting her, as special administratrix, to pay off the bank loans secured by the savings account funds to prevent the accrual of further interest charges. The petition made no mention of the use of the loan proceeds to finance construction of the house or that the property was then for sale. The petition was granted and Mrs. Selle paid off the loans with money from the decedent’s personal savings accounts. The real property was sold by Mrs. Selle on July 3, 1974, for $47,000. She paid the builder his profit under the construction agreement and the closing expenses and retained the remaining proceeds.

Mrs. Selle filed a first and final account as special administratrix and listed the loan repayment as an expenditure. Legatee Hilda Garvin objected to the account and following a hearing on March 8, 1976, the probate court disallowed the loan repayment expenditure and directed Mrs. Selle to reimburse the estate the amount of the repayment, which was $30,152.91. In its opinion, the probate court held that Mrs. Selle acted improperly by repaying the loans out of the estate funds without first disclosing in her petition for instructions that the loans were used to finance construction of the house. The court concluded that she was guilty of self-dealing.

Mrs. Selle first contends that the circuit court erred in affirming the probate court’s order that she reimburse the estate for the amount of the loan repayments, because the loans were a proper claim against the estate, which suffered no loss as a result of the repayment and she did not benefit at the expense of the estate because she had no legal obligation to turn over proceeds from the sale of the real property to it.

Mrs. Selle’s name appears along with her husband’s as a purchaser in the land contract under which the lot was originally purchased. Therefore, the lot was held by both as tenants by the entirety. Zeigen v Roiser, 200 Mich 328; 166 NW 886 (1918). When the house was constructed on the lot, it became part of the realty and therefore the lot and house thereon belonged to decedent and his wife as entireties property. Michigan Mutual Life Ins Co v Cronk, 93 Mich 49; 52 NW 1035 (1892), Rzeppa v Seymour, 230 Mich 439; 203 NW 62 (1925). When property is held by tenants by the entirety, upon the death of one, the title devolves upon the survivor, not under the statutes of descent, but by death of the other tenant and by operation of law. Therefore, in the instant case, Mrs. Selle became the fee simple owner of the property upon her husband’s death on May 1, 1974. Farmers & Merchants National Bank & Trust Co v Globe Indemnity Co, 264 Mich 395; 249 NW 882 (1933). When the property was sold on July 3, 1974, Mrs. Selle was entitled to keep the proceeds, since it was her property.

The probate court based its decision on two cases, In re McKenna’s Estate, 334 Mich 368; 54 NW2d 611 (1952), and In re Tolfree Estate, 347 Mich 272; 79 NW2d 629 (1956), each of which involved self-dealing by a fiduciary resulting in financial losses to the estate for which the fiduciary was charged. Michigan statutes in effect during the time of the present case also indicate that fiduciaries are properly charged for losses caused to the estate they represent. MCL 704.35; MSA 27.3178(286), MCL 704.37; MSA 27.3178(288).

The probate and circuit courts assumed tfiat a loss was suffered by the estate when Mrs. Selle paid the bank loans with the funds in the decedent’s personal savings accounts rather than the proceeds from the sale of the house. However, the loans were secured by the savings accounts, not the real property, and the bank would have looked to those accounts for payment, having no rights in the property. Mrs. Selle’s action did not cause a loss to the estate; therefore the probate court erred in charging her with the amount of the loan repayments.

We find that the other issues raised by Mrs. Selle lack merit.

Reversed and remanded.


text:
    STANICH v LIQUOR CONTROL COMMISSION
    Docket No. 43822.
    Submitted December 12, 1979, at Detroit.
    Decided February 26, 1980.
    The Liquor Control Commission imposed fines and revoked the Class C liquor license of Joseph Stanich, doing business as the Fairlane Cafe, for allowing entertainment on the premises without obtaining a permit and for showing films on the premises depicting explicit sexual conduct, both in violation of commission rules. Stanich filed a complaint for review in Wayne Circuit Court, which affirmed the commission’s decision, Harry J. Dingeman, Jr., J. Stanich’s motion for a rehearing was denied. He appeals, alleging that there must be a showing that dispensation of liquor by the drink occurred oh the licensed premises simultaneously with the proscribed conduct before the rules may be enforced against the licensee. Held: Neither the rules nor case law require a showing that consumption of alcoholic beverages occurred simultaneously with the proscribed conduct.
    Affirmed.
    Intoxicating Liquors — Liquor Control Commission •— Administrative Law — Sexually Explicit Films.
    Rules of the Liquor Control Commission which prohibit the showing of films depicting explicit sexual conduct in an establishment which is licensed to sell liquor by the drink do not require a showing that liquor is actually dispensed at such an establishment or that consumption of alcoholic beverages occurred at the same time that prohibited films were shown (1977 AACS R 436.37[2], 436.39[2]).

      Doherty & Thomas, P.C., for plaintiff.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and A. C. Stoddard
      and Thomas J. Giachino, Assistants Attorney General, for defendant.

      Reference for Points in Headnote
    [1] 45 Am Jur 2d, Intoxicating Liquor §§ 389, 444.

      Before: M. J. Kelly, P.J., and M. F. Cavanagh and P. C. Elliott, JJ.

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

   Per Curiam.

This matter involves three complaints issued by the Michigan Liquor Control Commission against plaintiff Joseph Stanich who did business as the Fairlane Cafe and as such was the holder of a Class C liquor license. Plaintiff was charged with allowing entertainment on the licensed premises without having obtained an entertainment permit, in violation of Michigan Liquor Control Commission Rule 436.14(a) and 436.14(f), 1954 AACS R 436.14(a), (f), and with showing films, on the licensed premises, in which divers persons exposed to public view the pubic region, anus or genitals and which also depicted certain explicit sexual activities, in violation of commission Rules 436.37(2) and 436.39(2), 1977 AACS R 436.37(2), 436.39(2). Hearings on these complaints were held before Liquor Control Commissioner Thomas A. Van Tiem, Sr., on January 12, 1978. On March 6, 1978, Commissioner Van Tiem found that plaintiff had violated commission Rules 436.37(2) and 436.39(2). Plaintiff was fined, and his liquor license was revoked. An appeal hearing was held on April 27, 1978. On May 1, 1978, the appeal board adopted the findings of fact made by the hearing commissioner and affirmed his order.

On May 17, 1978, plaintiff filed a complaint for review in the Wayne County Circuit Court. He claimed that Rule 436.39 was unconstitutional and that the findings and decisions of the Liquor Control Commission were not supported by competent, material, and substantial evidence. Wayne County Circuit Judge Harry J. Dingeman, Jr., found plaintiffs constitutional and evidentiary challenges to be without merit and affirmed defendant’s order revoking plaintiffs liquor license in an opinion issued on October 26, 1978. A judgment affirming the decision of the Liquor Control Commission was entered on November 17, 1978.

On December 7, 1978, plaintiff filed a motion for a rehearing. Judge Dingeman heard arguments on this motion on January 26, 1979. Plaintiff argued that California v La Rue, 409 US 109; 93 S Ct 390; 34 L Ed 2d 342 (1972), reh den 410 US 948; 93 S Ct 1351; 35 L Ed 2d 615 (1973), required three elements to be shown: (1) a showing of certain sexual performances, (2) the dispensation of liquor by the glass, and (3) a license. Plaintiff then contended that a new hearing was mandated because no evidence showing the dispensation of liquor by the glass was presented at the administrative hearing. The motion was denied. Plaintiff appeals as of right.

The question presented is whether or not there must be a showing that the dispensation of liquor by the drink occurred on the licensed premises simultaneously with the proscribed conduct before sanctions can be imposed against an on-premise liquor licensee under Michigan Liquor Control Commission Rules 436.37(2) and 436.39(2).

In California v La Rue, supra, the constitutionality of certain regulations promulgated by the California Department of Alcoholic Beverage Control was at issue. The regulations prohibited certain sexually explicit live entertainment or films in establishments that were licensed to sell liquor by the drink. The Court held that in view of the states’ broad authority to control intoxicating liquors under the Twenty-first Amendment, the challenged regulations did not, on their face, violate the Federal Constitution, notwithstanding that the regulations proscribed some acts which were not obscene and which were within the limits of the First and Fourteenth Amendments’ protection of freedom of expression. In sustaining the regulations, the United States Supreme Court drew a distinction between statutes or ordinances which censor dramatic performance in the theater and regulations which only prohibit such exposure in establishments where liquor is sold by the drink.

"The substance of the regulations struck down prohibits licensed bars or nightclubs from displaying, either in the form of movies or live entertainment, 'performances’ that partake more of gross sexuality than of communication. While we agree that at least some of the performances to which these regulations address themselves are within the limits of the constitutional protection of freedom of expression, the critical fact is that California has not forbidden these performances across the board. It has merely proscribed such performances in establishments that it licenses to sell liquor by the drink.

"The Department’s conclusion, embodied in these regulations, that certain sexual performances and the dispensation of liquor by the drink ought not to occur at premises that have licenses was not an irrational one. Given the added presumption in favor of the validity of the state regulation in this area that the Twenty-first Amendment requires, we cannot hold that the regulations on their face violate the Federal Constitution.” 409 US 109, 118-119. (Emphasis added.)

The rules of the Michigan Liquor Control Commission involved in the instant case are substantially similar to those adopted in California. Rule 436.37(2) provides as follows:

"An on-premise licensee shall not suffer or allow in or upon the licensed premises the showing of films, television, slides, or other electronic reproduction depicting scenes wherein any person exposes to public view the pubic region, anus, or genitals, as well as other types of nudity prohibited by statute or local ordinance. This prohibition shall not apply to any publicly broadcast television transmission from a federally licensed station.”

Rule 436.39(2) provides as follows:

"An on-premise licensee shall not suffer or allow in or upon the licensed premises the showing of films, television, slides, or other electronic reproduction depicting scenes wherein a person performs, or simulates performance of, the following explicit sexual activities: sexual intercourse, masturbation, sodomy, bestiality, fellatio, or cunnilingus. This prohibition shall not apply to any publicly broadcast television transmission from a federally licensed station.”

This Court recently upheld the constitutionality of Rule 436.37 on the basis of La Rue. Bundo v Liquor Control Comm, 92 Mich App 20; 283 NW2d 860 (1979).

The instant case, however, does not involve a constitutional challenge to the rules in question. Rather, plaintiff contends that La Rue set forth a two-pronged test which was not met in the instant case. Plaintiff argues that La Rue requires a showing of objectionable actions and the dispensing of liquor. Plaintiff cites the following language from La Rue to support his contention:

"The Department’s conclusion, embodied in these regulations, that certain sexual performances and the dispensation of liquor by the drink ought not to occur at premises that have licenses was not an irrational one.” 409 US 109, 118.

Our reading of La Rue is that the phrase "the dispensation of liquor by the drink” refers to a type of license, and not a fact which must be shown in addition to showing that the establishment did indeed have a liquor license. Nor do Rules 436.37 or 436.39 require an evidentiary showing that consumption of alcoholic beverages occurred at the same time the prohibited films were shown. These rules simply state that an "on-premise licensee” shall not show such films in or upon the licensed premises.

In the instant case, the hearing commissioner took administrative notice that plaintiff was a Class C licensee. Plaintiff admitted this fact in his pleadings. By statutory definition a "Class C license” means "any place licensed to sell at retail beer, wine and spirits for consumption on the premises”. MCL 436.2t; MSA 18.972(20). Testimony at the administrative hearing established that the proscribed conduct did occur on the licensed premises. Moreover, examination of the two hearing transcripts reveals that the violations of November 14 and 15 of 1977 occurred during the hours of service under 1957 AACS R 436.10.

Neither La Rue, supra, nor Rules 436.37(2) and 436.39(2) require an evidentiary showing that consumption of alcoholic beverages occurred simultaneously with the proscribed conduct. It is sufficient to show that plaintiff had a liquor license which permitted the dispensation of liquor by the drink and he allowed the offending entertainment in violation of Michigan Liquor Control Commission Rule 436.14(a) and (f) and Rule 436.37(2) and 436.39(2).

Affirmed.


text:
    UNIVERSAL LIFE CHURCH, INC v COMMISSIONER OF LOTTERY
    Docket No. 44195.
    Submitted December 6, 1979, at Grand Rapids.
    Decided March 10, 1980.
    Leave to appeal applied for.
    The Universal Life Church, Inc., filed a declaratory judgment action in Kent Circuit Court against the Commissioner of Lottery when it became apparent that the Commissioner was about to revoke certain bingo licenses issued to a Universal Life Church in the Grand Rapids area. The licenses were subsequently revoked and the circuit court, Stuart Hoffius, J., upheld the revocation. The plaintiff appeals, alleging that the licenses were issued not to the local church but to the Universal Life Church, Inc. of California, which was a qualified organization, and that Reverend Jay Rode of the Grand Rapids church did not supply the Commissioner with false information in his application for a bingo license on behalf of his church. Held:

    1. The trial court’s determination that the Grand Rapids church was a separate and individual church is clearly supported by the record.
    2. The record also supports the trial court’s finding that Reverend Rode supplied false and misleading information in the application for licenses.
    3. The plaintiff failed to preserve for review the issue of the constitutionality of the licensing statute and the record reveals no clear and manifest injustice such as to require appellate review on this issue.
    Affirmed.
    1. Declaratory Judgments — Appeal — De Novo Review.
    The Court of Appeals reviews a declaratory judgment action de novo; however, the trial court’s ruling will be upheld absent an abuse of discretion. 2. Agency — Right oe Control.

      References for Points in Headnotes
    [1] 5 Am Jur 2d, Appeal and Error § 872.
    [2] 3 Am Jur 2d, Agency § 2.
    [3] 5 Am Jur 2d, Appeal and Error § 574.
    16 Am Jur 2d, Constitutional Law § 174.

      The test for determination of whether or not an agency exists is whether the principal maintains a right of control; the label which the parties themselves place on their relationship is not determinative.
    3. Appeal — Statutes — Constitutional Law — Preserving Question.
    The issue of the constitutionality of a statute is not preserved for appellate review where no objections were made in the proceedings below concerning the statute’s constitutionality unless there is clear and manifest injustice.

      Morris & Smigiel, for plaintiff.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Robert J. Taube and E. Boomie Mikrut, Assistants Attorney General, for defendant.
    Before: Bronson, P.J., and Allen and R. M. Maher, JJ.
   Per Curiam.

Plaintiff appeals by right the order of the trial court denying the requested declaratory relief and upholding the decision of the Commissioner of Lottery revoking certain bingo licenses which had been issued to a Universal Life Church located in the Grand Rapids area.

On appeal, plaintiff argues that the applicant and recipient of the bingo licenses was the Universal Life Church, Inc. of California, and that this church was a qualified organization under MCL 432.103(6); MSA 18.969(103X6) either because the church had been in existence continuously in excess of five years, or because it possessed a tax-exempt status. Plaintiff further argues that the Reverend Jay Rode of the Universal Life Church located in the Grand Rapids area did not supply the Commissioner of Lottery with false or misleading information in his application for a bingo license on behalf of the church, in violation of the statute and administrative rules relative to the issuance of bingo licenses.

Our review of this declaratory judgment action is de novo, and the precise question before us is whether the trial court abused its discretion. Ravenna Education Ass’n v Ravenna Public Schools, 70 Mich App 196, 200; 245 NW2d 562 (1976), rem’d on other grounds 399 Mich 854 (1977).

The basic issue in this case is whether the Universal Life Church, Inc. of California was the applicant and recipient of the bingo licenses, or whether the individual Universal Life Church located in the Grand Rapids area and led by the Reverend Jay Rode was the applicant and recipient of the licenses. The record indicates that, if Universal Life Church, Inc. of California was the applicant and recipient of the bingo licenses, it clearly was a qualified organization, either because it had been in existence for a period of over five years, or because it possessed a tax-exempt status. If the Reverend Rode’s Universal Life Church, as a separate and individual church, was the applicant and recipient of the bingo licenses, however, it was not a qualified organization under the applicable statute.

The trial court determined as fact that Reverend Rode’s Universal Life Church located in the Grand Rapids area was not the same church as the Universal Life Church, Inc. of California, and did not act on behalf of the California church but was a separate and individual church. Our review of the record supports that determination.

The test of whether an agency exists is whether the principal maintains a right to control. Chester v World Football League, 75 Mich App 455, 458; 255 NW2d 643 (1977). The label which the parties themselves place on their relationship is not determinative. Lincoln v Fairfield-Nobel Co, 76 Mich App 514, 520; 257 NW2d 148 (1977). The facts of the instant case clearly show that the Universal Life Church, Inc. of California had no control over the actions of Reverend Rode’s Universal Life Church located in Grand Rapids. Reverend Rode’s only connection with the Universal Life Church, Inc. of California, after his congregation came into being, was certain minimal reporting duties and a requirement to pay $2 per month to the California church for record keeping functions. Reverend Hensley, the founder and president of Universal Life Church, Inc. of California, admitted that he knew nothing of Reverend Rode’s applications for bingo licenses until after those applications were made. The record clearly supports the trial court’s finding that Reverend Rode’s Universal Life Church located in the Grand Rapids area was a separate and individual church, and was not the same church as the Universal Life Church, Inc. of California.

The record also supports the trial court’s finding that Reverend Rode’s Universal Life Church supplied false and misleading information to the Commissioner of Lottery in support of its application for bingo licenses. Reverend Rode stated in the application for the first bingo license that his church had been in existence for a period of six years, when in fact it had not. Furthermore, Reverend Rode supplied the Commissioner of Lottery with a document indicating the tax-exempt status of the Universal Life Church, Inc. of California, upon which the Commissioner of Lottery believed that the Universal Life Church possessed a group tax exemption. In fact, the tax-exempt status granted to the Universal Life Church, Inc. of California was only an individual tax exemption. Based on his belief that the exemption was a group exemption, the Commissioner believed that Reverend Rode’s Universal Life Church was covered under the group exemption and therefore was also tax exempt.

Plaintiff finally argues that MCL 432.103(6); MSA 18.969(103)(6) violates the First Amendment of the United States Constitution by favoring more established religions. Since plaintiff made no objections in the proceedings below concerning the constitutionality of this statute, this issue is not preserved for appellate review unless there is clear and manifest injustice. See People v Penn, 70 Mich App 638, 642; 247 NW2d 575 (1976). Our review of the record and briefs on appeal indicates no clear and manifest injustice.

Affirmed.