People v. Peters , 128 Mich. App. 292 ( 1983 )

128 Mich. App. 292 (1983) 340 N.W.2d 317

PEOPLE
v.
PETERS

Docket No. 64966.

Michigan Court of Appeals.

Decided July 28, 1983.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William F. Delhey, Prosecuting Attorney, and David A. King, Assistant Prosecuting Attorney, for the people.

Michael A. Courtney, for defendant on appeal.

Before: MacKENZIE, P.J., and M.J. KELLY and S. EVERETT,^[*] JJ.

PER CURIAM.

Defendant pled guilty to receiving and concealing stolen property of a value in excess of $100, MCL 750.535; MSA 28.803. Defendant was sentenced to imprisonment for two to five years, and he appeals as of right.

The factual basis elicited to support the plea was as follows:

"The Court: Okay. Would you tell me what you did that you think you're guilty of? What did you do?

"Defendant: Breaking into my mother's house.

"The Court: Breaking into your mother's house?

"Defendant: Property — possession of silver and clothes.

"The Court: Okay. Did you know at the time you did this that it was, in fact, stolen property?

"Defendant: Yes, I did.

"The Court: Okay. And when did this happen?

"Defendant: Ten six, eighty-one.

"The Court: October 6th of 1981. And where did this happen?

"Defendant: At 1108 Miner.

"The Court: At 1108 Miner in the City of Ann Arbor, Michigan?

"Defendant: Yeah.

"The Court: Okay. Was this property worth more than $100?

"Defendant: Yes, it was."

Defendant argues that the foregoing was insufficient to support his plea. In Guilty Plea Cases, 395 Mich 96, 130; 235 NW2d 132 (1975), the Court explained:

"A factual basis for acceptance of a plea exists if an inculpatory inference can reasonably be drawn by a jury from the facts admitted by the defendant even if an exculpatory inference could also be drawn and defendant asserts the latter is the correct inference."

Defendant first argues that the factual basis elicited was insufficient to establish the value of the property. However, this argument is without merit in view of defendant's express admission concerning the value of the property. Defendant also argues that the factual basis elicited showed him to be the thief. Thieves who conceal the property they have stolen are not guilty of receiving and concealing stolen property. People v Kyllonen, 402 Mich 135; 262 NW2d 2 (1978). Where the factual basis elicited shows that defendant was the thief, a plea to receiving and concealing stolen property is not supported. People v Ashford, 407 Mich 870 (1979); People v Schuster, 86 Mich App 601; 272 NW2d 352 (1978); People v Richards, 95 Mich App 433, 438-439; 291 NW2d 69 (1980). See also People v Bonner, 102 Mich App 514; 302 NW2d 253 (1980), in which the Court remanded such a case to give the prosecutor an opportunity to show that defendant assisted in the concealment of the stolen property after transferring it to others. Here, however, the record merely shows that defendant broke and entered his mother's home. The record does not show that defendant stole anything from his mother or that the stolen property which defendant received and concealed was stolen during the breaking and entering. Because the factual basis does not show that defendant was the thief who stole the property at issue, the factual basis elicited was sufficient to support defendant's plea.

The record shows that defendant pled guilty in return for a promise that he would not receive a harsher sentence than imprisonment for 1-1/2 to 5 years. The sentence defendant received did not comply with this agreement. Where defendant's plea is induced by an unkept promise, the Court has discretion to choose between vacating the plea or ordering specific performance of the plea agreement as the appropriate remedy, with defendant's choice of remedy being accorded considerable weight. People v Stevens, 45 Mich App 689, 692-696; 206 NW2d 757 (1973); People v Nickerson, 96 Mich App 604, 607; 293 NW2d 644 (1980). Here, defendant has requested that he be resentenced in accord with the original agreement, and on this record, resentencing appears to us to be the appropriate remedy. On remand, defendant shall not receive a harsher sentence than imprisonment for 1-1/2 to 5 years.

Affirmed in part and remanded for further proceedings consistent with this opinion.

M.J. KELLY, J. (concurring).

The instant scenario is difficult to distinguish from that occurring in People v Kyllonen, 402 Mich 135, 150; 262 NW2d 2 (1978), a non-guilty plea case, in which the Supreme Court inferred, without actually holding, that a factfinder must find beyond a reasonable doubt that the defendant was not the thief in order to convict him of receiving and concealing stolen property. I am convinced that a defendant's non-theft of the property involved should not be an essential element of the offense of receiving and concealing stolen property. Accord, People v Wolak, 110 Mich App 628, 634; 313 NW2d 174 (1981), lv den 414 Mich 940 (1982). I do not believe, therefore, that the import of Kyllonen to guilty-plea proceedings is a requirement that a plea-taking court satisy itself on the record that defendant was not the thief by asking him whether he himself stole the property that he is charged with possessing.

The essential question is whether the defendant's statements in the instant case established support for a finding that he is guilty of the charged offense. See GCR 1963, 785.7(3)(a). Since defendant's statements do establish support for a finding that he possessed stolen property, knowing it to be such, and his statements do not reflect that he stole the property, his conviction must be affirmed.

NOTES

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