text:
    PEOPLE v DANDY
    Docket No. 48438.
    Submitted April 23, 1980, at Detroit.
    Decided May 23, 1980.
    Leave to appeal applied for.
    Jack L. Dandy was convicted on three counts of receiving or concealing stolen property with a value in excess of $100, Wayne Circuit Court, Roland L. Olzark, J. He appealed. The people moved to affirm, which motion was granted by the Court of Appeals. Subsequently, the Supreme Court reversed and remanded to the Court of Appeals for plenary consideration, 407 Mich 816 (1979). Defendant alleges error in that 1) the trial court gave conflicting instructions to the jury, 2) similar-acts testimony was inadmissible, 3) reference by the prosecutor to a dismissed charge denied him a fair trial, 4) evidence of the stolen nature of the property was insufficient, 5) hearsay evidence was admitted, and 6) evidence of the value of the alleged stolen items was insufficient. Held:

    1. The trial court erred in instructing the jury as to the nature of a similar-acts witness in also identifying him as an accomplice of the defendant, but such conflicting instructions did not result in manifest injustice.
    2. The similar-acts testimony was admissible in that there was no question that defendant participated in the prior acts; they were sufficiently similar to the charged offenses; defendant’s knowledge was placed directly in issue; and the probative value of the testimony outweighed its prejudicial effect.
    3. Defense counsel failed to object to the prosecutor’s references to a dismissed charge at trial, and such remarks did not prejudice the defendant.
    4. There was sufficient circumstantial evidence presented at trial to allow the trier of fact to find that the property was stolen.

      References for Points in Headnotes
    [1] 75 Am Jur 2d, Trial §§ 628, 906, 920.
    [2] 75 Am Jur 2d, Trial § 665.
    [3] 5 Am Jur 2d, Appeal and Error § 797 et seq.

    [4] 5 Am Jur 2d, Appeal and Error §§ 786, 797 et seq.

    [5] 29 Am Jur 2d, Evidence § 387.

      5. Defendant’s argument regarding admission of hearsay evidence was not raised below and need not be considered, but its admission was, nonetheless, harmless.
    6. The testimony as to the value of the stolen property was sufficient in that it was determined by the price each item would have brought if sold at the time and the locality where it was received by the defendant.
    Affirmed.
    1. Criminal Law — Conflicting Instructions to the Jury — Similar Acts — Accomplices — Harmless Error — Failure to Object — Manifest Injustice.
    Conflicting instructions to the jury by the trial court that a witness who testified under the similar-acts statute to establish the defendant’s guilty knowledge was an accomplice and the jury could convict on the testimony of the witness alone constitutes error; however, reversal is not warranted where defense counsel failed to object to the instructions during trial and the trial court emphasized the necessity of the prosecutor’s proving the elements of the crime beyond a reasonable doubt, so that such instructions did not result in manifest injustice.
    2. Criminal Law — Nature of Testimony — Necessity to Balance — Trial Court — Trial Record.
    Failure of the trial court to balance the probative value against the prejudicial effect of similar-acts testimony prior to admission into evidence does not, alone, require reversal; moreover the trial court is not required to place the balancing process on the record.
    3. Witnesses — Similar-Acts Testimony — Criminal Law — Dismissed Charges — Undue Prejudice.
    The fact that a witness referred to a matter pertaining to a dismissed charge while giving similar-acts testimony does not indicate undue prejudice as long as the acts were sufficiently similar.
    4. Evidence — Hearsay Testimony — Harmless Error — Support by Competent Testimony.
    Erroneous admission of hearsay testimony is harmless where the same facts are shown by other competent testimony.
    5. Criminal Law — Valuation of Stolen Items — Evidence.
    The value of items which are stolen is to be determined during a criminal trial for receiving or concealing stolen property by the price such items will bring on the open market at the time and the locality where they were received by the defendant.

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

      Bolden & Blake, for defendant.
    Before: V. J. Brennan, P.J., and Bronson and H. E. Deming, JJ.

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

   Per Curiam.

The defendant was convicted on three counts of receiving or concealing stolen property with a value in excess of $100, contrary to MCL 750.535; MSA 28.803. The instant appeal is before this Court after the Supreme Court reversed this Court’s granting on January 24, 1979, of a motion to affirm.

Testimony at the trial established that the following items were found in or near the garage of the defendant’s residence: the cab of a blue 1976 Ford pickup truck (Count I), two doors and the bed (rear portion from the cab to the rear axle) of a red 1970 Ford stake truck (Count II), the cab of a red 1973 Ford pickup truck (Count III), and the front end of a blue 1975 Chevrolet pickup truck (Count IV).

All three owners of the vehicles described in Counts I-III testified that they held title to the trucks and that they were stolen during the winter of 1975-1976. Each identified as his own the vehicles that were found near the defendant’s residence. The identification of two of the vehicles was further established by certain tele-date tickets that were hidden on the vehicles by the manufacturer. The value of the vehicles was set by an expert witness at $1,200, $250, and $750 for the trucks in Counts I, II, and III, respectively.

On the second day of the trial, the fourth count in the complaint was dismissed on motion of the prosecutor, since the owner of the vehicle was not available to testify at trial.

The defendant, owner of an automobile parts junkyard, testified that he had purchased all of the vehicles. He stated that he had no knowledge that the vehicles were stolen.

Defendant assigns as error the instructions to the jury concerning the testimony of Charles Finney who had testified under the similar acts statute to establish the defendant’s guilty knowledge that the automobile parts were stolen. The trial court erroneously instructed the jury that Finney was an accomplice and that they could convict on his testimony alone. While these instructions were error, reversal is not warranted.

Trial counsel failed to object to the instructions, and we do not find that they resulted in manifest injustice as required under GCR 1963, 516.2. See People v Clemons, 91 Mich App 68, 73; 282 NW2d 838 (1979). The instructions that Finney was an "accomplice” to the defendant was, if anything, beneficial to the defendant since the court stressed that this testimony should be scrutinized very closely before it could be accorded any weight. The instruction to the effect that the conviction could be based on Finney’s testimony alone did erroneously expand the limited scope of this similar acts testimony beyond the restricted purpose of showing the defendant’s guilty knowledge. However, the trial court properly instructed the jury with respect to the limited purpose of Finney’s testimony, and the court emphasized that the prosecutor was required to prove all four elements of the charged offenses beyond a reasonable doubt. Any claimed error could have been cured by a timely objection. Based on the above, we conclude that the erroneous instructions did not result in manifest injustice.

Defendant’s second contention is that the similar-acts testimony was inadmissible. Charles Finney, the perpetrator of 75 to 100 automobile thefts, testified that he sold stolen automobile parts to the defendant on four or five occasions. Finney described the sale of one vehicle which was contained in the fourth dismissed count of the complaint. Finney stated that the defendant knew that the vehicles were stolen as shown by their confidential discussions concerning the sales and the defendant’s statement that he would not buy any cars stolen from his own neighborhood.

Based on the ruling of this Court in People v Wilkins, 82 Mich App 260; 266 NW2d 781 (1978), and the more recent Supreme Court decision of People v Major, 407 Mich 394; 285 NW2d 660 (1979), we find that the similar-acts testimony was properly admitted. There is no question that the defendant had actually participated in the prior sales. The sales were sufficiently similar to the charged offenses based on the same type of property, the location of the sale, and the same, general time frame for its occurrence. Further, the defendant’s knowledge was placed directly in issue since he testified he had no knowledge and no way of knowing that the automobile parts were stolen.

Defendant’s main contention on appeal centers on the probative/prejudicial leg of the Wilkins test. Defendant argues that the trial court failed to take into account the prejudicial nature of the testimony. While the record does not indicate whether the trial judge balanced the probative value against the prejudicial effect, this fact alone does not require reversal. The trial court is not required to place this balancing process on the record. People v Bolden, 92 Mich App 421; 285 NW2d 210 (1979). Moreover, we find that the probative value did outweigh the prejudicial effect. The testimony did not extend over an inordinate length of time, and the potential for delay was minimal. The striking similarity between the purchases evidenced that the testimony directly tended to prove the defendant’s knowledge. The fact sought to be proved was critical to the case, and it could not be readily proved in any other manner. Finally, the testimony of Charles Finney cannot be classified as cumulative.

Defendant argues that the testimony was prejudicial because it tended to implicate the defendant in all of the 75 to 100 thefts by Finney. Yet, Finney testified that his dealings with defendant were restricted to sales on only four or five occasions. There was no testimony to the effect that Dandy was involved in all of the thefts by Finney. The defendant’s claim that the testimony was prejudicial because it included the stolen property of a dismissed charge is also without merit. As long as the acts were sufficiently similar, the fact that the witness referred to the stolen property of a dismissed charge does not indicate undue prejudice.

Defendant’s third contention that the prosecutor’s references to the dismissed charge resulted in the denial of the defendant’s right to a fair trial is without merit. The defense counsel failed to object to any remarks by the prosecutor, and we do not find any miscarriage of justice. See People v Duncan, 402 Mich 1; 260 NW2d 58 (1977). In his closing remarks, the prosecutor properly stated that the last count had been dismissed and the reasons therefor. The remarks did not prejudice the defendant.

Defendant’s fourth claim of error is that there was insufficient evidence under Count I that the property was stolen because the prosecutor failed to present any testimony by a representative of the insurer, the record owner at the time the property was seized. Even absent any such testimony, we conclude that there was sufficient circumstantial testimony that the property was stolen. The former owner testified that his vehicle was stolen on December 10, 1975. He did not see the truck again until he viewed it in the police yard in March, 1976. The cab portion of the truck was found in the garage of the defendant’s residence. The identification plates had been removed, and the defendant could not produce any registration or certificate of title. We conclude that there was sufficient circumstantial evidence at trial so that a rational trier of fact could have found that the property in Count I was stolen. People v Hampton, 407 Mich 354; 285 NW2d 284 (1979).

Defendant’s fifth claim of error focuses on the admission into evidence of certain tele-date tickets which identified two of the stolen vehicles. Defendant argues that the tickets were improperly admitted into evidence because the prosecutor failed to present any testimony by the maker of the tickets, that is, the manufacturer of the vehicles. Defendant claims that such testimony is mandatory under MRE 803(6).

While we need not address this argument since it was not raised below, People v Cochran, 84 Mich App 710; 270 NW2d 502 (1978), we conclude that any error was harmless. This Court has often stated that the erroneous admission of hearsay testimony is harmless error where the same facts are shown by other competent testimony. People v Hoerl, 88 Mich App 693, 702; 278 NW2d 721 (1979), People v Petrov, 75 Mich App 532; 255 NW2d 673 (1977). A review of the record indicates that the vehicles were sufficiently identified by the witnesses, so that the tele-date tickets were merely cumulative identification testimony.

Defendant’s last claim of error centers on the testimony concerning the value of the stolen property. The value of items that are stolen is to be determined by the price an item will bring on the open market, People v Tillman, 59 Mich App 768, 771; 229 NW2d 922 (1975), at the time and the locality where they are received by the defendant. People v Fishel, 270 Mich 82; 258 NW 217 (1935). A body shop manager testified that as of July, 1976, the vehicles in Counts I, II, and III were worth $1,200, $250, and $750, respectively. The delay of four months between the time the property was seized and when it was valued does not require reversal on the grounds that there was no evidence that the vehicles were worth more than $100. The four-month delay does not sufficiently discredit the testimony since it is highly unlikely that the vehicles could have significantly appreciated in value over such a short period of time.

The decision of the lower court is affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    PEOPLE v HOLLOWAY
    Docket No. 78-473.
    Submitted May 6, 1980, at Grand Rapids.
    Decided June 18, 1980.
    Defendant, Charles E. Holloway, was arrested on a traffic warrant for driving with a suspended license. When he stopped his vehicle, the arresting officers saw two opened film canisters on the seat between defendant’s legs. One of the canisters contained a brown powder. The officers, who were working as part of a special unit investigating narcotic cases, knew defendant and had spoken with him on several occasions. On this occasion, defendant did not speak but continuously moved his mouth in a chewing motion. When requested to open his mouth defendant refused. The officers then forced defendant’s mouth open and removed partly chewed tinfoil packets containing heroin and cocaine. Defendant was convicted of possession of both heroin and cocaine in the Calhoun Circuit Court, Paul Nicolich, J. Defendant appeals. Held:

    1. Under the circumstances, the arresting officers had probable cause to believe that a crime had been committed and that a search would produce evidence of that crime. Further, the search was not invalid as being incident to a "pretext” arrest. The evidence was properly admitted against defendant.
    2. The trial court erred in refusing to instruct the jury on the offense of attempted use of cocaine while instructing on the offense of use of cocaine. However, the error is not reversible.
    Affirmed.
    Appeal — Evidence — Admissibility.
    A trial court’s determination on the admissibility of evidence will only be reversed where clearly erroneous.
    Reference for Points in Headnote
    [1] 5 Am Jur 2d, Appeal and Error § 881.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James Norlander, Prosecuting Attorney, and John H. MacFarlane, Assistant Prosecuting Attorney, for the people.

      James R. Neuhard and Karla Kendall, State Appellate Defenders, for defendant on appeal.
    Before: R. B. Burns, P.J., and J. H. Gillis and D. C. Riley, JJ.
   Per Curiam.

Defendant was convicted by a jury of possession of heroin, MCL 335.341(4)(a); MSA 18.1070(41)(4)(a), and possession of cocaine, MCL 335.341(4)(b); MSA 18.1070(41)(4)(b). On appeal, defendant maintains that the trial court committed reversible error in failing to suppress evidence that was seized at the time of defendant’s arrest on a traffic offense.

Defendant was arrested on a traffic warrant for driving with a suspended license. When he stopped his vehicle, the arresting officers saw two opened film canisters on the seat between defendant’s legs. One of the canisters contained a brown powder. The officers, who were working as part of a special unit investigating narcotic cases, knew defendant and had spoken with him on several occasions. On this occasion, defendant did not speak but continuously moved his mouth in a chewing motion. When requested to open his mouth defendant refused. The officers then forced defendant’s mouth open and removed partly chewed tinfoil packets containing heroin and cocaine.

Defendant asserts that the search of his mouth was made without probable cause. In this Court, a trial court’s determination of whether evidence is admissible, after a suppression hearing has been held, is reversed only where it is clearly erroneous. People v White, 84 Mich App 351, 354; 269 NW2d 598 (1978), People v Ulrich, 83 Mich App 19; 268 NW2d 269 (1978). Under the circumstances of this case we find that the arresting officers had probable cause to believe that a crime had been committed and probable cause to believe that a search would produce evidence of that crime.

We further reject defendant’s assertion that the search was invalid because it was incident to a "pretext” arrest. The officers’ arrest of defendant for driving with a suspended license was properly made on a valid warrant.

Defendant’s final contention is that the trial court erred in refusing to instruct on the offense of attempted use of cocaine though the court did instruct the jury on the offense of use of cocaine. We agree. People v Ora Jones, 395 Mich 379; 236 NW2d 461 (1975). Because a conviction for possession of cocaine carries only a two-year maximum sentence, it was error for the trial court to fail to instruct on the offense of attempted use even though the attempt offense carries a maximum penalty of less than one year. People v Chamblis, 395 Mich 408; 236 NW2d 473 (1975).

In the present case, we find that the failure to instruct on the offense of attempted use of cocaine did not constitute reversible error. People v Herbert Ross, 73 Mich App 588; 252 NW2d 526 (1977).

Affirmed.


text:
    PEOPLE v HALE
    Docket No. 44432.
    Submitted April 7, 1980, at Detroit.
    Decided July 7, 1980.
    Thomas Hale was convicted, on his plea of guilty, of armed robbery, Wayne Circuit Court, Victor J. Baum, J. Prior to sentencing, defendant moved to withdraw his guilty plea because of defense counsel’s failure to proceed on the day of the plea with a scheduled evidentiary hearing on the admissibility of a confession which defendant had made. During a colloquy with the court, defendant indicated that the police had given him the impression that if he cooperated he would get no more than a two-year sentence. The trial court denied the motion to withdraw the guilty plea and sentenced defendant to a prison term of from 10 to 25 years. Defendant appeals, arguing that the trial court abused its discretion by denying defendant’s motion to withdraw his guilty plea, since defendant’s reason for seeking withdrawal of the guilty plea, Le., that his defense counsel had failed to proceed with a challenge to a confession which had been induced by promises by the police of leniency, was not frivolous in nature. Held:

    1. While there is no absolute right to withdraw a guilty plea, even when the motion is made prior to sentencing, trial courts should treat motions to withdraw a guilty plea with great liberality. Trial courts need not grant a motion to withdraw a guilty plea where the reasons stated in support of the motion are obviously frivolous; however, the courts should resolve any doubts about the substantiation of the reasons for the motion to withdraw the plea in favor of the defendant.
    2. A claim of ineffective assistance of counsel is reviewable in an appeal of a conviction by a plea of guilty. The Court of Appeals will not review the merits of such a claim where the court record contains insufficient evidence to substantiate a defendant’s unsupported allegation of ineffective assistance of counsel.

      References for Points in Headnotes
    [1] 21 Am Jur 2d, Criminal Law § 503 et seq.

    Withdrawal of plea of guilty or nolo contendere, under Rule 32(d) of Federal Rules of Criminal Procedure. 6 ALR Fed 665.
    [2] 58 Am Jur 2d, New Trial §§ 160,161.
    [3] 5 Am Jur 2d, Appeal and Error § 962.

      3. Since defendant’s claim that he was denied effective assistance of counsel by counsel’s failure to proceed with a hearing on the admissibility of his confession and was thereby induced to offer his plea of guilty is not obviously frivolous, it is necessary to remand the matter to the trial court for a hearing wherein the defendant may present evidence that substantiates his claim that his plea of guilty was the result of the failure of defense counsel to challenge the confession which had allegedly been induced by promises of leniency and the prosecution may submit proof to the contrary. The trial court shall make its findings and those findings, along with a transcript of the evidentiary hearing, shall be submitted to the Court of Appeals.
    Bemanded with instructions. The Court of Appeals retains jurisdiction.
    1. Criminal Law — Guilty Pleas — Withdrawal of Guilty Plea.
    There is no absolute right to withdraw a guilty plea once it has been accepted; however, while a trial court need not grant a motion to withdraw a guilty plea made before sentencing where the reasons stated for the withdrawal are "obviously frivolous”, the trial court must treat such motions with greát liberality and must resolve doubts about substantiation of the reasons for withdrawal in favor of the defendant.
    2. Appeal — Criminal Law — Guilty Pleas — Effective Assistance of Counsel.
    A claim of ineffective assistance of counsel is reviewable in an appeal of a conviction by a plea of guilty; however, the Court of Appeals will not review a claim of ineffective assistance of counsel where there is insufficient support in the trial court record establishing the defendant’s claim and the defendant has failed to raise the issue of ineffective assistance of counsel before the trial court by a motion for new trial or for an evidentiary hearing.
    3. Appeal — Criminal Law — Guilty Pleas.
    The Court of Appeals will remand for an evidentiary hearing on the question of whether a defendant should be permitted to withdraw his guilty plea where, upon review of the trial court record relative to the motion to withdraw the plea, the Court of Appeals is neither able to conclude that the defendant’s reasons for seeking to withdraw his plea are substantiated nor able to conclude that the defendant’s reasons for seeking to withdraw his guilty plea were obviously frivolous.

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

      Derrick A. Carter, Assistant State Appellate Defender, for defendant on appeal.
    Before: Danhof, C.J., and Cynar and Mackenzie, JJ.
   Per Curiam.

Defendant pled guilty to armed robbery, MCL 750.529; MSA 28.797. Prior to sentencing, defendant made a request to withdraw his guilty plea, which request was denied. Defendant was then sentenced to 10 to 25 years imprisonment. He appeals as of right.

Defendant raises one issue for review, contending that the trial court abused its discretion in refusing to grant defendant’s motion to withdraw his plea of guilty.

On December 19, 1978, the date set for trial, defendant pled guilty to armed robbery. When asked whether anybody had promised him anything to induce him to plead guilty, defendant said no. On January 9, 1979, the date of sentencing, defense counsel stated that defendant wished to withdraw his guilty plea because of counsel’s failure to go through with an evidentiary hearing on the admissibility of the defendant’s confession scheduled for the day the . plea was entered.

The defendant and the court engaged in the following colloquy:

"THE DEFENDANT: Your Honor, to start with, I was not so much as promised, I was — well, the deal was I was, I wasn’t supposed to get any more than two years.
"THE COURT: Now, with whom, with whom is there such a deal?
"THE DEFENDANT: The Detroit Police, and in front of witnesses which I haven’t had a chance to bring to court, and I was under the impression that I was coming and getting ready to have evidentiary hearing, which didn’t wind up as being evidentiary hearing at all, and I—
"THE COURT: You understood you didn’t have to plead guilty on the day you were in court. What day was that?”

Defendant indicated: "[Tjhey didn’t tell me to plead guilty. They told me if I cooperated, I would get two years and be on the street in 18 months”. The trial judge refused to allow the plea to be withdrawn.

There is no absolute right to withdraw a guilty plea once it is accepted. People v Bentley, 94 Mich App 19; 287 NW2d 355 (1979). However, the trial court must treat such motions with great liberality when made before sentencing. People v Hollman, 12 Mich App 231, 235; 162 NW2d 817 (1968), app dis 381 Mich 791 (1968), People v Hatcher, 83 Mich App 307, 308; 268 NW2d 389 (1978), People v Zaleski, 375 Mich 71, 79; 133 NW2d 175 (1965). A trial court need not grant a motion to withdraw a guilty plea where the reasons stated for the withdrawal are "obviously frivolous”. People v Thomas, (After Remand), 83 Mich App 235; 268 NW2d 356 (1978), Zaleski, supra. Furthermore, doubts concerning substantiation of the reasons for withdrawal must be resolved in the defendant’s favor. People v Moomey, 53 Mich App 576, 579; 220 NW2d 210 (1974), Thomas, supra.

This Court has applied the "great liberality” standard to reverse a denial of a motion to withdraw a guilty plea under facts similar to those in the case at bar. In People v Stockard, 49 Mich App 540, 544-545; 212 NW2d 609 (1973), lv den 391 Mich 772 (1974), the defendant filed a motion to withdraw his guilty plea prior to sentencing. This Court, in reversing and ordering a remand for trial, stated:

"In the hearing on the motion to withdraw plea, the most serious arguments advanced by defense counsel were as follows: (1) representations by police officers had been made to defendant out of the presence of defense counsel that things would go easier for defendant were he to plead guilty; (2) defendant’s plea was entered the day following damaging admissions made in reference to the murder charge. Defendant claimed these admissions to have been involuntary. Thus, defendant alleged that his decision to plead guilty came at a time of great psychological confusion and was influenced thereby.
"While defendant’s most serious allegations in support of his motion to withdraw plea may not have been completely substantiated, neither were they clearly frivolous. In People v Bencheck, 360 Mich 430, 433; 104 NW2d 191, 192 (1960), it was stated:
" 'Where, as here, a defense of innocence is asserted at the time of a request to withdraw the plea, and the request is not obviously frivolous and is made before commencement of trial and before sentence, the plea should be granted. The right we deal with here is the right to a jury trial, and even what may prove a well-founded belief in defendant’s guilt on the part of the trial judge should not impede the exercise of that right.”

We, therefore, hold that defendant’s motion to withdraw plea should have been granted.

Defendant further argues that he was denied effective assistance of counsel when his attorney failed to proceed with a scheduled Walker hearing prior to the entry of the guilty plea. An ineffective assistance of counsel claim is reviewable after a guilty plea. People v McDonnell, 91 Mich App 458; 283 NW2d 773 (1979). There is insufficient support in the record to establish the defendant’s claim since, among other things, there is nothing but the defendant’s unsupported allegation to indicate that his confession was involuntary. See People v Krokker, 83 Mich App 474; 268 NW2d 689 (1978). This Court will not review this issue where the defendant has made no motion for a new trial or for an evidentiary hearing. People v Clemons, 74 Mich App 448; 253 NW2d 795 (1977), People v McKenzie, 67 Mich App 356; 241 NW2d 205 (1976). People v Lewis, 64 Mich App 175; 235 NW2d 100 (1975), is distinguishable because, in that case, there was substantial support in the record for the defendant’s claim of ineffective assistance.

We are neither able to conclude that the defendant’s reasons for seeking to withdraw his plea were "obviously frivolous” nor, for that matter, that defendant’s reasons for seeking to withdraw his plea were substantiated. This matter is remanded to the trial court for a hearing to permit defendant to present evidence to substantiate his claim and for the people to submit proof to the contrary concerning defendant’s claim that he was induced to plead guilty by promises of leniency. The evidentiary hearing is to be completed and the trial court’s findings, together with the transcript of said hearing, are to be submitted to this Court within 60 days from the date this opinion is issued. We retain jurisdiction.

        People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965).


text:
    PEOPLE v WOMACK
    Docket Nos. 78-4172, 78-4173.
    Submitted October 11, 1979, at Detroit.
    Decided November 14, 1979.
    Alfred Womack was convicted on his plea of guilty in Wayne Circuit Court, Charles Kaufman, J., to seven criminal counts in two separate informations. In the first case, the defendant pled guilty to two counts of armed robbery, two counts of assault with intent to do great bodily harm less than murder and one count of possession of a firearm during the commission of a felony. In the second case, which arose out of separate and distinct acts occurring on a different date from the acts giving rise to the first case, the defendant pled guilty to one count of armed robbery and one count of possession of a firearm during the commission of a felony. Defendant was given a sentence of five years on each of the felony-firearm convictions. Those sentences were to run concurrently with each other but consecutively to the sentences imposed for the armed robbery and assault convictions. Defendant appeals, challenging the propriety of the felony-firearm convictions and the sentences imposed for those convictions. Held:

    1. The constitutional right to be secure from double punishment for the same crime is not violated by convictions for both a felony-firearm violation and the underlying felony out of which the felony-firearm convictions arose.
    2. The provision of the felony-firearm statute which provides for an increased sentence upon a second conviction is unambiguous in its language, it providing that the increased statute shall be applied to the second conviction irrespective of whether the second offense occurred subsequent to the first conviction. It, however, was error for the trial court to impose the increased sentence on the first conviction.
    The sentence on the first conviction under the felony-firearm statute being in excess of the sentence mandated by the statute for such a conviction, the Court of Appeals will modify that sentence by reducing the sentence to the two year sentence mandated by the statute for a first conviction under the felony-firearm statute.

      Refebences fob Points in Headnotes
    [1] 21 Am Jur 2d, Criminal Law § 189.
    [2, 3] 21 Am Jur 2d, Habitual Criminals and Subsequent Offenders §e.
    Chronological or procedural sequence of former convictions as affecting enhancement of penalty for subsequent offense under habitual criminal statutes. 24 ALR2d 1247.

      Affirmed as modified.
    1. Criminal Law — Constitutional Law — Double Jeopardy — Firearms — Felony-Firearm — Statutes.
    Convicting a defendant of both the underlying felony and carrying or possessing a firearm during the commission of a felony does not violate the constitutional rule against double punishment (MCL 750.227b; MSA 28.424[2]).
    2. Criminal Law — Sentencing — Felony-Firearm — Second Conviction — Increased Sentence — Statutes.
    The provision of the felony-firearm statute which provides for an increased sentence upon a second conviction under that statute applies to the second conviction even though the second offense did not occur subsequent to the first conviction (MCL 750.227b; MSA 28.424[2]).
    3. Criminal Law — Sentencing — Felony-Firearm — First Conviction — Second Conviction — Increased Sentence — Statutes.
    The increased sentence provision of the felony-firearm statute applies only to second convictions under the statute; accordingly, it is error to impose the increased sentence for the first conviction under the statute even if a second conviction under the statute is had prior to the sentencing on the first conviction under the statute (MCL 750.227b; MSA 28.424[2]).

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

      Daniel J. Wright, Assistant State Appellate Defender, for defendant on appeal.
    Before: J. H. Gillis, P.J., and V. J. Brennan and Mackenzie, JJ.
   Per Curiam.

On June 27, 1978, the defendant pled guilty to seven criminal counts contained in two separate informations. In the first case (lower court #78-806650-FR), the defendant pled guilty to two counts of armed robbery, MCL 750.529; MSA 28.797, two counts of assault with intent to do great bodily harm less than murder, MCL 750.84; MSA 28.279, and one count of possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). In the second case (lower court #78-806648-FR), which arose from a separate and distinct offense occurring on a different date, the defendant pled guilty to one count of armed robbery and one count of possession of a firearm during the commission of a felony.

He was sentenced to 10 to 20 years imprisonment on each of the armed robbery counts and five to ten years imprisonment on each of the assault counts. The above sentences were to run concurrently. He was sentenced to five years imprisonment on each of the felony-firearm counts. These sentences were to run consecutively to the above sentences but concurrently with one another. He appeals by right. GCR 1963, 806.1.

The defendant first challenges the constitutionality of his convictions under the felony-firearm statute on double jeopardy grounds. The issue has been decided adversely to the defendant in the recent case of Wayne County Prosecutor v Recorder’s Court Judge, 406 Mich 374; 280 NW2d 793 (1979).

The defendant next contends that his sentences of five years imprisonment on each of the felony-firearm counts was impermissible, arguing that the increased scale of punishment set forth in the statute is applicable only when the defendant has committed a second violation of the felony-firearm statute subsequent to a previous like conviction. We cannot agree.

MCL 750.227b; MSA 28.424(2) provides:

"A person who carries or has in his possession a firearm at the time he commits or attempts to commit a felony, except the violation of section 227 or section 227a, is guilty of a felony, and shall be imprisoned for 2 years. Upon a second conviction under this section, the person shall be imprisoned for 5 years. Upon a third or subsequent conviction under this section, the person shall be imprisoned for 10 years.”

The statutory language is unambiguous. The only precondition to the imposition of a five-year sentence is a second conviction under the statute. There is no requirement that commission of the second offense occur subsequent to a first conviction.

Lastly, though not raised by the parties, we note that the imposition of a five-year sentence on the first of the two felony-firearm convictions exceeded the sentence mandated by the statute. That sentence mandated by statute in the case of a first conviction under the statute is two years. Accordingly, we modify the defendant’s sentence by reducing the term of imprisonment on the felony-firearm count in case #78-806648-FR from five to two years. GCR 1963, 820.

Affirmed as modified.


text:
    DETROIT AUTOMOBILE INTER-INSURANCE EXCHANGE v NEEQUAYE
    Docket No. 78-3959.
    Submitted February 5, 1980, at Detroit.
    Decided April 25, 1980.
    Shavonne H. Neequaye was injured when her automobile was struck by an uninsured motorist. Neequaye also had no insurance, but she lived with her grandmother, who had an insurance policy on an automobile the grandmother owned. Neequaye filed a claim for uninsured motorist benefits with the insurer, Detroit Automobile Inter-Insurance Exchange. DAIIE claimed that there was no coverage because of an exclusion in the policy. The matter went to arbitration and the arbitration panel granted an award of benefits to Neequaye under her grandmother’s policy. DAIIE filed a motion to vacate the award in Wayne Circuit Court, which was denied, Thomas Roumell, J. DAIIE appeals, alleging that the arbitrators made a clear error of law and thereby exceeded their powers. Held:

    At the time of the arbitrators’ decision there was a split of authority in the Court of Appeals on the validity of the exclusionary clause relied upon here by DAHE. Therefore, there was no law on the matter, and under these circumstances the Court of Appeals cannot say that the arbitrators exceeded their power by making a clear error of law. In addition, the Court of Appeals should not substitute its view of the law for that of the arbitrators.
    Affirmed.
    . 1. Arbitration — Error of Law — Split of Authority.
    An arbitration panel did not exceed its powers by disregarding applicable case law where, because of a split of appellate authority at the time of the panel’s decision, there was no law on the subject matter.
    2. Arbitration — Appeal — Ruling Contrary to Law.
    The Court of Appeals should not substitute its view of the law for that of an arbitration panel; the fact that an arbitration panel may have ruled contrary to law does not always mean that the panel has exceeded its powers.

      Reference for Points in Headnotes
    [1, 2] 5 Am Jur 2d, Arbitration and Award § 167.

      Selby, Dickinson, Pike, Mourad & Brandt (by Rex M. Valentine), for plaintiff.
    Before: N. J. Kaufman, P.J., and D. E. Holbrook, Jr., and R. M. Maher, JJ.
   Per Curiam.

This is an appeal from the trial court’s denial of plaintiff’s motion to vacate an arbitration award.

On May 6, 1971, the defendant sustained injuries when the 1966 Ford automobile she owned and operated was struck by an automobile owned and operated by an uninsured motorist. Defendant had no insurance on this 1966 Ford. At the time of the accident, defendant was living in the same household as her grandmother. During this time the grandmother held an automobile insurance policy with the plaintiff on a 1965 Ford. Defendant filed a claim for the uninsured motorist benefits with plaintiff.

On February 26, 1978, the parties appeared before the Accident Claims Tribunal of the American Arbitration Association which granted an award of $5,000 to defendant under the uninsured motorist provision of her grandmother’s policy. Plaintiff then filed a motion to vacate this award on the grounds that no contract of insurance existed between defendant and DAIIE. Following a circuit court hearing plaintiff’s motion to vacate was denied. From this adverse determination plaintiff appeals as of right. We affirm.

Plaintiff contends that the arbitrators exceeded their powers by disregarding applicable case law in violation of GCR 1963, 769.9(l)(c). We do not agree. At the time the arbitrators made the existing award there was a split of authority in this Court as to the validity of exclusionary clauses such as found here. Rice v Detroit Automobile Inter-Insurance Exchange, 66 Mich App 600; 239 NW2d 675 (1976), Priestly v Secretary of State, 67 Mich App 96; 240 NW2d 282 (1976), and Nunley v Turner, 57 Mich App 473; 226 NW2d 528 (1975), found such an exclusion to be valid. Hickman v Community Service Ins Co, 78 Mich App 1; 259 NW2d 367 (1977), Bradley v Mid-Century Ins Co, 78 Mich App 67; 259 NW2d 378 (1977), and Ellis v State Farm Ins Co, 78 Mich App 189; 259 NW2d 421 (1977), lv gtd in all three cases, 402 Mich 950r (1978), held the contrary. Under these circumstances we cannot say that the arbitrators exceeded their power by making a clear error of law. There simply was no law. It therefore makes little difference which line of cases we follow, those which hold the exclusion clause valid or those which hold it invalid.

Moreover, even if we were convinced that the arbitrators’ view of the law was erroneous, it is not for us to substitute our view of the law for theirs. When the parties agree to submit disputes to arbitration, they agree to accept the arbitrators’ views of the facts and law. If it were otherwise, arbitration decisions would signal the beginning of litigation, rather than avoidance of litigation. The fact that an arbitration panel may have ruled contrary to law does not always mean that they have exceeded their powers. Chippewa Valley Schools v Hill, 62 Mich App 116; 233 NW2d 208 (1975), lv den 395 Mich 806 (1975), Detroit Automobile Inter-Insurance Exchange v Ayvazian, 62 Mich App 94; 233 NW2d 200 (1975). The arbitrators did not exceed their authority and it was proper for the trial court to rule as it did.

Having ruled as we have, further discussion of plaintiff’s remaining allegations of error is rendered unnecessary.

Affirmed.


author: R. M. Maher, P.J.

text:
    PEOPLE v PAVLAK In re INTERNATIONAL FIDELITY INSURANCE COMPANY
    Docket No. 77-1926.
    Submitted January 9, 1980, at Detroit.
    Decided August 11, 1980.
    Michael A. Pavlak was charged with breaking and entering in the Recorder’s Court of Detroit. International Fidelity Insurance Company posted a bond to secure his appearance. When Pavlak failed to appear for sentencing on September 13, 1976, his bond was forfeited. He was rearrested on October 7, 1976. On that same day, Fidelity voluntarily paid the face value of the bond into the court. Fidelity moved to have the forfeiture set aside and the bond money returned. The prosecutor was served with notice. The court reinstated the bond and ordered the money paid in remitted to Fidelity on condition that Fidelity first release its collateral and pay court costs. Fidelity did so. Then, the Wayne County Board of Auditors refused to remit the money, claiming the county’s corporation counsel rather than the prosecutor should have been served. The trial judge set aside its order of reinstatement and stated reimbursement would be mandated if Fidelity filed again and served the corporation counsel. When Fidelity did this, the court, Justin C. Ravitz, J., denied the motion, holding it had no authority to remit forfeitures to corporate sureties. Fidelity appeals. Held:

      A rule or statute which denies a corporate surety the same right to relief from forfeiture of a bond as an individual depositor of bail would have is inconsistent with the ordinary rules of suretyship law and is in violation of the equal protection clause. Under the circumstances, Pavlak would have been entitled to remission had he posted a cash bond. Fidelity is also entitled to remission.
    Reversed.
    M. F. Cavanagh, J., concurred in the result only.
    Suretyship and'Guarantee — Bail Bonds — Equal Protection — Statutes.
    Liability of a surety is coextensive with the liability of a principal on a bond and cannot be extended any further; a corporation is a "person” within the meaning of the equal protection clause; a rule or statute which denies a corporate surety the same right to relief from forfeiture of a bond as an individual depositor of bail would have is inconsistent with the ordinary rules of suretyship law and is in violation of the equal protection clause (MCL 765.15; MSA 28.902).

      References for Points in Headnote
    [I] 8 Am Jur 2d (Rev), Bail and Recognizance § 101.
    18 Am Jur 2d, Corporations § 21.

      George H. Cross, Corporation Counsel, and W. B. McIntyre, Jr., Assistant Corporation Counsel, for the Wayne County Board of Auditors.

      Norman L. Zemke and James M. Cohen, for appellant International Fidelity Insurance Company.
    Before: R. M. Maher, P.J., and M. F. Cavanagh and Cynar, JJ.
   R. M. Maher, P.J.

The appellant herein is a corporate surety which posted a $1,000 criminal bail bond in Detroit Recorder’s Court to secure the appearance of the defendant, Michael Pavlak. When Pavlak failed to appear for sentencing on September 13, 1976, his bond was forfeited and canceled and a capias was issued for his arrest.

On October 7, 1976, the defendant was stopped for a minor traffic violation, and a LEIN check disclosed his fugitive status. He was taken into custody in connection with the still-pending criminal case. On that same date, the surety had voluntarily paid the $1,000 face value of the bond into the court, foregoing the requirement of MCL 765.28; MSA 28.915 and People v Person, 44 Mich App 630; 205 NW2d 610 (1973), that the prosecutor first obtain a judgment for the bond forfeiture.

A few days after defendant was apprehended, the appellant moved to have the forfeiture set aside and for reinstatement of the bond and reimbursement of the $1,000 which had previously been paid. The prosecutor was served in accordance with then-current practice in Recorder’s Court. The prosecutor did not oppose the petition for reinstatement. At a hearing held October 21, 1976, the trial court reinstated the bond and ordered that the $1,000 forfeiture be remitted to the surety on condition that the surety first release its collateral and pay $200 in court costs. The surety complied with these preconditions. Subsequently, the Wayne County Board of Auditors refused to remit the $1,000, claiming that the surety’s petition for reinstatement of the bond should have been served on the County Corporation Counsel rather than on the prosecutor and was therefore inadequate.

The trial judge heard argument on the issue of service, then set aside its prior order of reinstatement. The trial judge stated to the appellant surety that if it filed again for reinstatement and served the corporation counsel, the return of the $1,000 would, in the trial court’s view, be mandated.

Appellant filed and served a new petition for remission. At this time, the trial court denied the petition, based upon People v Tom Johnson, 72 Mich App 702; 250 NW2d 508 (1976). Although the trial judge recognized that the surety had been prejudiced by his inconsistent rulings in that it had released its collateral and had paid $200 in court costs, he said that under People v Tom Johnson, supra, he had no authority to remit forfeitures to corporate sureties._

The statute governing the remission of bond forfeitures, MCL 765.15; MSA 28.902, provides as follows:

"Sec. 15. (a) If such bond or bail be forfeited, the court shall enter an order upon its records directing, within 45 days of the order, the disposition of such cash, check or security, and the treasurer or clerk, upon presentation of a certified copy of such order, shall make disposition thereof. The court shall set aside the forfeiture and discharge the bail or bond within 1 year from the time of the forfeiture judgment, in accordance with subsection (b) of this section if the person who forfeited bond or bail is apprehended and the ends of justice have not been thwarted and the county has been repaid its costs for apprehending the person.
"(b) If such bond or bail be discharged, the court shall enter an order to that effect with a statement of the amount to be returned to the depositor. Upon presentation of a certified copy of such order, the treasurer or clerks having such cash, check or security shall pay or deliver the same to the person named therein or to his order.
"(c) In case such cash, check or security shall be in the hands of the sheriff or any officer, other than such treasurer or clerk, at the time it is declared discharged or forfeited, the officer holding the same shall make such disposition thereof as the court shall order, upon presentation of a certified copy of the order of the court.”

In People v Tom Johnson, supra, a panel of this Court held that the term "security” in MCL 765.15 applies solely to such negotiable securities as are permitted to be filed in lieu of bond or bail under MCL 765.12; MSA 28.899. The basis for distinction between the deposit and the corporate surety bond was explained thusly, 72 Mich App 702, 708:

"In the deposit situation, the depositor puts up something of value which is forfeited upon an order while in the surety bond situation, the surety merely makes a promise to make good the bond after a judgment is entered. The difference lies in who has possession of the valuable during the interim, and also who is entitled to the interest on the security during that time.

We find the reasoning of People v Tom Johnson unpersuasive and do not see any basis for the distinction in treatment between deposit bail and a bond posted by a corporate surety. MCL 765.6; MSA 28.893 expressly provides that the amount of bail shall be uniform whether the bond is executed by the accused or by a surety. MCL 765.12; MSA 28.899 allows the deposit of cash, certified checks, etc., in an amount equal to the bond or bail which is required, and "in lieu thereof’. The obvious legislative intent behind these provisions is that both sorts of bail should be treated similarly. Common sense, and fidelity to the Legislature’s apparent intent, would dictate that bonds which are to be treated alike should be treated alike for all purposes, including remission of forfeitures.

Furthermore, in People v Judge of Recorder’s Court, 23 Mich App 126, 128; 178 NW2d 146 (1970), this Court stated:

"While People v Benmore (1941), 298 Mich 701, dealt specifically with the return of cash bail, we see no reason legitimately to differentiate between cash bail and surety bail. We read Benmore to hold that the grant or denial of the relief sought and obtained by this surety is discretionary. See also 84 ALR 420.”

A corporate surety is permitted to post bond through a recognizance, rather than by the deposit of a cash, check or other negotiable security, because the sufficiency of its assets, and thus its ability to pay, have previously been determined by the Commissioner of Insurance. MCL 500.103-500.104; MSA 24.243-24.244 Therefore, a corporate surety provides the people with the same degree of financial security in connection with a recognizance as does the deposit of a negotiable security. In our opinion, the issue of entitlement to interest on an interest-bearing security is irrelevant in construing the statute on the remission of forfeitures, especially since the securities in question need not be interest-bearing instruments.

It is well-settled that the liability of a surety is coextensive with the liability of a principal on a bond and cannot be extended any further. 74 Am Jur 2d, Suretyship, § 104, p 76, In re MacDonald Estate, 341 Mich 382; 67 NW2d 227 (1954). In other words, a surety stands in the shoes of its principal. If a defendant in a criminal case had posted $1,000 of his own funds as bail, this $1,000, less costs, would have been returned to him upon his rearrest and sentencing. But if we were to adhere to the analysis and the holding of People v Tom Johnson, supra, the surety would not have the same rights as his principal under MCL 765.15(a); MSA 28.902(a). Such a rule makes the surety’s position inferior to that of its principal, a result which seems to be inconsistent with the ordinary rules of suretyship law, as well as a violation of the constitutional guaranty of equal protection.

A corporation is a "person” within the meaning of the equal protection clause. Grosjean v American Press Co, Inc, 297 US 233; 56 S Ct 444; 80 L Ed 660 (1936), Louis K Liggett Co v Lee, 288 US 517; 53 S Ct 481; 77 L Ed 929 (1933). If both the principal and the surety are "persons” within the meaning of the equal protection clause, and, by virtue of ordinary suretyship law must be "similarly situated”, it then becomes an inescapable conclusion that a rule which treats the principal and, surety differently offends the equal protection clause. See e.g., Hartford Steam Boiler Inspection & Ins Co v Harrison, 301 US 459; 57 S Ct 838; 81 L Ed 1223 (1937), Reed v Reed, 404 US 71; 92 S Ct 251; 30 L Ed 2d 225 (1971), Johnson v Robison, 415 US 361; 94 S Ct 1160; 39 L Ed 2d 389 (1974).

There is no rational basis for the unequal treatment. The purpose of bond or bail is to guarantee that the accused will appear at a set time. The bond is forfeited if he fails to appear, but the money can be recovered if the accused is apprehended within the allotted time at no added expense to the court system. That same purpose is served whether the bail was secured by a surety or by funds deposited by the accused and his family. Retention of interest on bail money is not a proper purpose to be served by the statutory scheme.

Furthermore, it is our opinion that a rule which denies corporate sureties the relief provided for in MCL 765.15(a) is unsound as a matter of public policy. We have previously noted that "the surety’s function on the bail-bond contract operates to relieve the state from policing court attendance of bailed defendants and thus furthers the state’s interests”. Citizens for Pre-trial Justice v Goldfarb, 88 Mich App 519, 567; 278 NW2d 653 (1979) (Brennan, J.). GCR 1963, 790.4(b) also recognizes the necessity of a surety bond to secure the appearance of a criminal accused in some circumstances.

It is well recognized in Michigan that a professional bondsman has the power to arrest an absconding client. Citizens for Pre-trial Justice v Goldfarb, supra, 556. It is likely that a surety would spend large amounts of time and capital in locating and apprehending an absconder. If we now preclude the surety from recouping the amount of the forfeited bond, we will, as a practical matter, take away or at least greatly diminish his incentive to pursue such clients. This result would be detrimental to the court system of this state.

Another , argument which is made in support of the distinction between sureties and deposited funds is based on humanitarian grounds: if a defendant and his family mortgage their house or deposit their life savings, and the defendant is apprehended within the year, there would be a hardship on the family if these funds are not returned. However, in the usual case, the surety also requires some collateral, which he would ordinarily retain if the defendant absconds and the bond is forfeited. Thus, this distinction is without merit.

In summary, we believe that a rule which denies a corporate surety the same right to relief from forfeiture of a bond as an individual depositor of bail would have is unsound in light of the important role that such a surety has in assuring the appearance of a criminal defendant.

We would therefore reverse the decision of the trial court and would allow the appellant surety to recover the amount of the forfeited bond.

M. F. Cavanagh, J., concurs in the result only.

       Although the propriety of the service is not at issue in this appeal, we would note that GCR 1963, 772.4 unambiguously requires only that service be had upon "the prosecuting attorney” with respect to the remission of forfeitures. See also, Wayne County Prosecutor v Recorder’s Court Judges, 81 Mich App 317, 322; 265 NW2d 134 (1978).

       MCL 765.12; MSA 28.899 provides:
      "Sec. 12. In any criminal cause or proceeding where bond or bail of any character is required or permitted for any purpose, the party or parties required or permitted to furnish such bail or bond may deposit, in lieu thereof, in the manner herein provided, cash, certified check on any state or national bank in this state, obligations of the United States government negotiable by delivery or bonds of any municipality of this state negotiable by delivery, equal in amount to the amount of the bond or bail so required or permitted.”

      "Section 17 of chapter 5 provides for the state to receive the interest on the security deposited. On the other hand, in a surety bond situation, it is the surety who is in possession of the security and therefore the surety retains any interest which accumulates therefrom. MCLA 765.17; MSA 28.904.”


text:
    PEOPLE v GORNEY
    Docket Nos. 78-641, 78-642.
    Submitted November 7, 1979, at Lansing.
    Decided August 11, 1980.
    Leave to appeal applied for.
    Robert P. Gorney was convicted on his pleas of guilty in Bay Circuit Court, John X. Theiler, J., to one count of criminal sexual conduct in the first degree and one count of criminal sexual conduct in the second degree. The count charging defendant with criminal sexual conduct in the first degree alleged sexual penetration by the defendant of his 15-year-old stepdaughter. The count charging defendant with criminal sexual conduct in the second degree alleged that defendant forcibly engaged in sexual contact with another stepdaughter causing personal injury to her. With respect to the factual basis as to the second count, the only reference made by the defendant at his plea relative to any personal injury to the victim was that she was upset. Defendant appeals. Held:

    1. A review of the transcript of the guilty plea hearing establishes that, with respect to the count charging criminal sexual conduct in the first degree, there was a sufficient factual basis established to support a conviction on that charge and the court complied with the mandate of the court rules in accepting the guilty plea to that charge.
    2. Criminal sexual conduct in the fourth degree, a misdemeanor, is a necessarily included offense of the felony of criminal sexual conduct in the second degree, since the only difference between the two offenses is that the added element of personal injury must be established to support a conviction for the felony rather than the misdemeanor.
    3. Proof that the victim of criminal sexual contact was "upset” by that experience is not sufficient to establish the element of mental anguish as that term is used in the definition of personal injury contained in the criminal sexual conduct act. If being "upset” is sufficient to constitute mental anguish and therefore a personal injury within the meaning of the criminal sexual conduct act, the distinction between criminal sexual conduct in the second degree and criminal sexual conduct in the fourth degree would be obliterated, since it must be assumed that any victim of criminal sexual conduct of any degree would be "upset” by the experience.

      References for Points in Headnotes
    [1, 2, 6] 65 Am Jur 2d, Rape § 2 ef seq.

    [3] 73 Am Jur 2d, Statutes §§ 293, 300.
    [4, 5] 73 Am Jur 2d, Statutes §§ 145,146.
    [5] 16 Am Jur 2d, Constitutional Law §§ 223, 225.
    73 Am Jur 2d, Statutes §§ 213-216.
    [6] 38 Am Jur 2d, Fright, Shock, and Mental Disturbance § 7.
    [7] 21 Am Jur 2d, Criminal Law § 498.

      4. Criminal statutes are strictly construed so that doubtful conduct is deemed not to be criminal. Such strict construction arises out of the idea that there should be notice of prohibited acts, the belief that courts should exercise judicial restraint so as to avoid judicial interference with what is thought to be properly a legislative function, and the desire to avoid arbitrary and discriminatory applications of otherwise vague legislative pronouncements.
    5. Statutes should be construed so as to give effect to the statute rather than nullify it. Statutes are to be construed in light of the purpose sought to be accomplished.
    6. The term "mental anguish” as used in the definition of personal injury in the criminal sexual conduct act must be construed to mean "extreme or serious mental anguish” in order to avoid finding the statutory definition of criminal sexual conduct in the second degree to be constitutionally vague. Such a judicial construction of that term may be reached, notwithstanding the fact that the Legislature declined to so limit the definition of "mental anguish”, by an application of either the doctrine of ejusdem generis or the maxim of noseitur a sociis.

    7. For the purpose of the statute defining criminal sexual conduct in the second degree, extreme mental anguish may be established by proof that the mental anguish resulted in a need by the victim for psychiatric care or proof that such mental anguish interfered with the victim’s ability to conduct a normal life.
    8. Where, as here, a defendant is unable to give any sufficient factual basis to support a plea of guilty to criminal sexual conduct in the second degree because of a lack of knowledge as to any resulting personal injury to the victim arising out of the criminal sexual conduct, a plea of nolo contendere is an appropriate means by which to secure the conviction. In a plea of nolo contendere, the trial judge may establish the element of personal injury by reference to any preliminary examination testimony which will establish that fact.
    Defendant’s plea of guilty to second-degree criminal sexual conduct is reversed.
    Affirmed in part; reversed in part.
    1. Statutes — Criminal Law — Criminal Sexual Conduct — Included Offenses — Second-Degree Criminal Sexual Conduct — Fourth-Degree Criminal Sexual Conduct.
    Criminal sexual conduct in the fourth degree is a necessarily included offense of criminal sexual conduct in the second degree; the only difference between the two offenses is the additional element of personal injury which must be proven in order to establish criminal sexual conduct in the second degree (MCL 750.520c[l], e[l]; MSA 28.788[3][1], [5][1]).
    2. Words and Phrases — Mental Anguish — Criminal Sexual Conduct.
    Proof that the victim of criminal sexual conduct was "upset” by the experience is not sufficient to establish the element of mental anguish as that term is used in the definition for personal injury contained in the criminal sexual conduct act; if being "upset” constitutes mental anguish within the meaning of the criminal sexual conduct act, the distinction between the felony of criminal sexual conduct in the second degree and the misdemeanor of criminal sexual conduct in the fourth degree would be obliterated, since it must be presumed that any victim of criminal sexual conduct of any degree would be "upset” by the experience.
    3. Statutes — Criminal Statutes — Rule of Strict Construction — Reasons for the Rule of Strict Construction.
    The rule that criminal statutes are strictly construed by the court, such that doubtful conduct is deemed not to be criminal, arises out of the idea that there should be notice of the prohibited acts, the belief that courts should exercise judicial restraint so ■ as to avoid judicial interference with what is thought to be a legislative function, and the desire to avoid arbitrary and discriminatory applications' of otherwise vague legislative pronouncements.
    4. Statutes — Statutory Construction — Effect — Purpose.
    Statutes are construed so as to give effect to the statute rather than nullify it and are construed in light of the purpose sought to be accomplished.

      5. Statutes — Words and Phrases — Mental Anguish — Extreme Mental Anguish — Judicial Construction — Constitutional Law — Vagueness.
    The term mental anguish as it is used in the definition of personal injury in the criminal sexual conduct act must be construed to mean extreme or serious mental anguish; such a definition of the term "mental anguish” may be reached by the application of either the doctrine ejusdem generis or the maxim of noscitur a sociis, notwithstanding the fact that the Legislature declined to so limit the term, since such judicial construction is necessary to avoid finding the statutory definition of sexual conduct in the second degree to be constitutionally vague (MCL 750.520a[f], c[l][f]; MSA 28.788[l][f], [3][l][f]).
    6. Criminal Law — Evidence — Criminal Sexual Conduct — Extreme Mental Anguish — Statutes.
    Extreme mental anguish, for the purpose of supporting a conviction for criminal sexual conduct in the second degree, may be established by proof that the mental anguish resulted in a need by the victim for psychiatric care or proof that such mental anguish interfered with the victim’s ability to conduct a normal life (MCL 750.520a[f], c[l][f]; MSA 28.788[l][f|, [3][l][f]).
    7. Criminal Law — Plea of Nolo Contendere — Plea of Guilty — Criminal Sexual Conduct in the Second Degree — Personal Injury — Preliminary Examination Testimony — Court Rules.
    A plea of nolo contendere is an appropriate means to secure a conviction of criminal sexual conduct in the second degree where a plea of guilty to that offense is rendered impossible by reason of a defendant’s lack of personal knowledge as to any personal injury to the victim, because, in a plea of nolo contendere, the trial judge may establish the element of personal injury by reference to the preliminary examination testimony of the complainant or prosecution witnesses (GCR 1963, 785.7[3][b]).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, George B. Mullison, Prosecuting Attorney, and Neil P. Wackerly, Assistant Prosecuting Attorney, for the people.

      Kim Robert Fawcett, Assistant State Appellate Defender, for defendant on appeal.

      Before: R. M. Maher, P.J., and Mackenzie and J. H. Piercey, JJ.

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

   R. M. Maher, P.J.

Defendant appeals as of right from his plea-based convictions for first-degree criminal sexual conduct, MCL 750.520b; MSA 28.788(2), and second-degree criminal sexual conduct, MCL 750.520c; MSA 28.788(3). Defendant was sentenced to imprisonment for 10 to 15 years on each count, the sentences to run concurrently.

The count charging defendant with first-degree criminal sexual conduct was based on sexual penetration of Colleen O’Farrell, defendant’s 15-year old stepdaughter, who was residing in the same household at the time of the incident. Having reviewed the transcript of the plea taking, we find that the factual basis elicited from the defendant on this charge is sufficient to support a conviction for first-degree criminal sexual conduct under MCL 750.520b(l)(b); MSA 28.788(2)(l)(b). See Guilty Plea Cases, 395 Mich 96, 128-132; 235 NW2d 132 (1975), GCR 1963, 785.7(3). We also find that the trial court complied with GCR 1963, 785.7 in accepting defendant’s plea to the charge of first-degree criminal sexual conduct. We therefore affirm defendant’s conviction of count one, and the sentence of 10 to 15 years based thereon.

The second count charging defendant with second-degree criminal sexual conduct was based upon defendant’s sexual contact with another stepdaughter, Maureen O’Farrell, in violation of MCL 750.520c(l)(f); MSA 28.788(3)(l)(f). Specifically, this count alleged that "he engaged in sexual contact with Maureen O’Farrell and caused personal injury to the said Maureen O’Farrell and used force or coercion to accomplish the said sexual contact by overcoming the said Maureen O’Farrell through the actual application of physical force or physical violence”. In developing a factual basis with respect to count two, the sole reference to the complainant’s personal injury consisted of defendant’s acknowledgement that the complainant was "upset”.

On appeal, the defendant contends inter alia that: (1) there was an insufficient factual basis for his conviction of second-degree criminal sexual conduct, MCL 750.520c(l)(£); MSA 28.788(3)(l)(f); and (2) this provision is unconstitutionally vague because, where the element of personal injury is mental anguish, there is an arbitrary distinction between second and fourth-degree criminal sexual conduct.

Michigan’s criminal sexual conduct statute, MCL 750.520a et seq.; MSA 28.788(1) et seq., which became effective on April 1, 1975, divides criminal sexual conduct into four degrees of seriousness. First-degree criminal sexual conduct is defined as sexual penetration with another person accompanied by any one of seven aggravating circumstances, and is a felony punishable by imprisonment for life to any term of years. Second-degree criminal sexual conduct is defined as sexual contact that another person accompanied by any of seven aggravating circumstances, and is a felony punishable by imprisonment for not more than 15 years. Third-degree criminal sexual conduct involves penetration accompanied by any of three aggravating circumstances, and is a felony punishable by imprisonment for not more than 15 years. Finally, fourth-degree criminal sexual conduct involves sexual contact accompanied by two aggravating circumstances, and is a misdemeanor punishable by imprisonment for not more than two years, or by a fine of not more than $500.

The defendant herein was charged under MCL 750.520c(l)(f); MSA 28.788(3)(l)(f), which provides:

"Sec. 520c. (1) A person is guilty of criminal sexual conduct in the second degree if the person engages in sexual contact with another person and if any of the following circumstances exists:
"(f) The actor causes personal injury to the victim and force or coercion is used to accomplish the sexual contact. Force or coercion includes but is not limited to any of the circumstances listed in section 520b(l)(f)(i) to (v).”

MCL 750.520e(l)(a); MSA 28.788(5)(l)(a) provides:

"Sec. 520e. (1) A person is guilty of criminal sexual conduct in the fourth degree if he or she engages in sexual contact with another person and if either of the following circumstances exists:
"(a) Force or coercion is used to accomplish the sexual contact. Force or coercion includes but is not limited to any of the circumstances listed in section 520b(l)(f)(i) to (v).”

Thus, the fourth-degree criminal sexual conduct provision is a necessarily included lesser offense of the second-degree criminal sexual conduct provision of which the defendant herein was convicted, the only difference between them being the element of personal injury. People v Ora Jones, 395 Mich 379; 236 NW2d 461 (1975).

Personal injury is defined in MCL 750.520a(f); MSA 28.788(l)(f) as: "bodily injury, disfigurement, mental anguish, chronic pain, pregnancy, disease, or loss or impairment of a sexual or reproductive organ”. It is the element of mental anguish which is the focus of the instant appeal.

We would conclude that if a victim is "upset”, the element of mental anguish is not satisfied so as to justify a conviction of second-degree criminal sexual conduct. We must presume that the victim of any degree of criminal sexual conduct will be "upset” by the experience. Thus, the same act which may give rise to a felony charge of second-degree criminal sexual conduct could just as well constitute the misdemeanor offense of fourth-degree criminal sexual conduct.

It is a familiar rule of statutory construction that criminal statutes must be strictly construed. This principle requires that doubtful conduct be found not criminal. In large part, the principle is based on the idea of notice of prohibited acts, but it also reflects the idea that it is up to the Legislature to define criminal offenses and punishment. Restraint by the courts in interpreting criminal statutes works to avoid judicial infringement of that legislative function. Finally, strict construction serves to guard against the dangers of arbitrary and discriminatory application of otherwise vague legislative pronouncements. People v Willie Johnson, 75 Mich App 221, 224-225; 255 NW2d 207 (1977).

Another rule of statutory construction is that courts will construe the language of a statute so as to give it effect rather than to nullify it. People v Stickle, 156 Mich 557; 121 NW 497 (1909). Statutes must be construed in light of the purpose to be accomplished. Geraldine v Miller, 322 Mich 85; 33 NW2d 672 (1948).

In view of the degree structure of the criminal sexual conduct statute, with the gradations increasing in seriousness from fourth-degree to first-degree, we would conclude that the mental anguish component of personal injury, when used to elevate an offense from a fourth-degree misdemeanor to a second-degree 15-year felony, must involve "extreme” or "serious” mental anguish. It is possible to reach the same conclusion by application of the doctrine of ejusdem generis or the maxim of noscitur a sociis, where the meaning of a word is ascertained from the words which accompany it.

We further note that, when the criminal sexual conduct statute was first introduced on the floor of the Senate, the definition of personal injury included "extreme mental anguish or trauma”. The Legislature thus had an opportunity to incorporate this definition but declined to do so. Nonetheless, in order to preserve the integrity of the criminal sexual conduct statute as a whole, we find it necessary to judicially construe the term as "extreme” mental anguish, in order to avoid finding the statute unconstitutionally vague.

Factors which may establish "extreme” mental anguish sufficient to justify a felony conviction of second-degree criminal sexual conduct may include the need by the victim for psychiatric care or some interference with the victim’s ability to conduct a normal life, such as absence from the workplace. It would be futile to attempt an exhaustive list of all of the possible factors which would be required to establish the requisite degree of mental anguish, as this is better left for a case-by-case factual determination._

Although we find that defendant’s guilty plea to count two was invalid because the element of personal injury was not established, a defendant need not submit to a trial on the merits in this type of case, nor in cases where there is a subsequent pregnancy or disease of which defendant is totally unaware.

In People v Long, 86 Mich App 676; 273 NW2d 519 (1978), this Court recognized that, before a trial court can accept a defendant’s plea of guilty, the trial court must establish a factual basis by personally questioning the defendant about the crime. However, in accepting a plea of nolo contendere, the court may rely on the preliminary examination transcript to establish the factual basis of the offense. Under GCR 1963, 785.7(3)(b)(i) a nolo plea cannot be accepted unless the court "stat.e[s] why a plea of nolo contendere is appropriate”. In People v Long, supra, 683, this Court found that an appropriate reason for accepting a nolo plea exists when the defendant is "unable or unwilling to admit his guilt or relate the details of the alleged criminal conduct”.

We conclude that, when the defendant lacks personal knowledge to establish the element of personal injury, a nolo plea would be more appropriate than a guilty plea, since it would allow the trial court to use the testimony of the complainant or other prosecution witnesses, e.g., doctors, psychiatrists, employers, relatives, etc. to establish that there has been a pregnancy, loss of a sexual organ, a disease, or extreme mental anguish.

Defendant’s plea of guilty to second-degree criminal sexual conduct is reversed. The case is hereby remanded to the trial court, where defendant may either enter a plea of nolo contendere or submit himself to a trial on the merits.

Affirmed in part; reversed in part.

       MCL 750.520b; MSA 28.788(2).

       MCL 750.520c; MSA 28.788(3).

       MCL 750.520d; MSA 28.788(4).

         MCL 750.520e; MSA 28.788(5).

       Senate Bill 1207, Senate Journal 1974, Vol 2, p 963. The definition for § 520a(f) appears in its original version as follows:
      " 'serious personal injury’ means extensive bodily injury, disfigurement, extreme mental anguish or trauma, chronic pain, pregnancy, disease, or loss or impairment of a sexual or reproductive organ”.