People v. Lown , 30 Mich. App. 121 ( 1971 )

30 Mich. App. 121 (1971) 185 N.W.2d 916

PEOPLE
v.
LOWN

Docket No. 7361.

Michigan Court of Appeals.

Decided January 25, 1971.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, John R. Blakeslee, Prosecuting Attorney, and Michael J. Houlian, Assistant Prosecuting Attorney, for the people.

Richard L. Benedict, for defendant on appeal.

Before: HOLBROOK, P.J., and McGREGOR and T.M. BURNS, JJ.

PER CURIAM.

Defendant appeals from his conviction upon a plea of guilty to the charge of murder in the second degree.^[1] Together with another youth, he was originally charged with murder in the first degree^[2] arising out of the slaying of a man present at a club which they intended to break and enter. Following the testimony of the owner and an employee of Club 31, where the murder occurred, and the physician who treated the victim, defendant pled guilty to second-degree murder.

Defendant now maintains that the inquiry of the trial court at the guilty-plea proceeding failed to elicit a factual basis sufficient to support his conviction of the crime to which he had tendered a plea. Our review of the plea transcript confirms his contention. This transcript does not stand alone, however; the testimony adduced at the preliminary examination^[3] supplies us, as it did the trial court, with the missing facts to substantiate the defendant's plea. The requirement that there be a substantial basis for the proffered plea of guilty is satisfied when it appears on the record that, upon trial, the defendant might well have been convicted. People v. Bartlett (1969), 17 Mich. App. 205; People v. Carlisle (1969), 19 Mich. App. 680. From our examination of the entire record, we find that on trial it would not be improbable that defendant would have been convicted of murder in the first degree and that the accepted plea of guilty was a bargained plea that may eventually reduce the period of time which this youthful offender must spend in prison.

Affirmed.

NOTES

[1] MCLA § 750.317 (Stat Ann 1954 Rev § 28.549).

[2] MCLA 1970 Cum Supp § 750.316 (Stat Ann, 1970 Curr Mat § 28.548, p. 14).

[3] The preliminary examination transcript may properly be consulted to ascertain a factual basis justifying acceptance of a guilty plea. People v. Bartlett (1969), 17 Mich. App. 205, 210; People v. Donald T. Moore (1970), 21 Mich. App. 150; People v. Rufus Williams (1970), 23 Mich. App. 459; People v. Hinton (1970), 27 Mich. App. 186; People v. Medley (1970), 27 Mich. App. 195.