People v. Atcher , 57 Mich. App. 148 ( 1974 )

57 Mich. App. 148 (1974) 226 N.W.2d 77

PEOPLE
v.
ATCHER

Docket No. 17798.

Michigan Court of Appeals.

Decided December 5, 1974.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Bruce A. Barton, Prosecuting Attorney, and James M. Justin, Assistant Prosecuting Attorney, for the people.

Norris J. Thomas, Jr., Assistant State Appellate Defender, for defendant.

Before: QUINN, P.J., and BASHARA and VAN VALKENBURG,^[*] JJ.

BASHARA, J.

Defendant, on April 17, 1973, pled guilty to attempted possession of methadone. MCLA 335.341; MSA 18.1070 (41); MCLA 750.92; MSA 28.287. Defendant, who was already imprisoned, was sentenced to a consecutive term of 1 to 2 years, and appeals.

Defendant, inter alia, argues that the trial court failed to establish a factual basis to the crime pled. The record reveals the following colloquy between defendant and the bench.

"The Court: Now, on or about the 19th day of February, 1973, at the Township of Blackman in this County, did you attempt to knowingly or intentionally possess methadone?

"The Defendant: Yes.

"The Court: Did you know methadone is a narcotic drug?

"The Defendant: Yes.

"The Court: And did something happen here that, in this attempt, that you were intercepted and prevented in the attempted possession of it?

"The Defendant: Yes.

"The Court: All right, the Court will accept your plea of guilty, and this matter will be referred to the probation department for presentence investigation."

Prior to and after the enactment of GCR 1963, 785.7(3), a valid guilty plea requires the plea-taking judge to elicit facts on the record showing that the crime charged has been committed and that the defendant committed it. People v Barrows, 358 Mich 267; 99 NW2d 347 (1959); People v Williams, 386 Mich 277; 192 NW2d 466 (1971); People v Schneff, 392 Mich 15; 219 NW2d 47 (1974). It is also well established that placing the burden on the defendant to know whether he is legally guilty is impermissible. People v Taylor, 387 Mich 209; 195 NW2d 856 (1972).

We cannot determine on this record whether an attempt to commit a crime occurred. In People v Coleman, 350 Mich 268, 276-277; 86 NW2d 281 (1957), Justice Talbot Smith, speaking for a unanimous Court and citing several authorities stated:

"`Mere intention to commit a specified crime does not amount to an attempt. (People v Stites, 75 Cal 570 [17 P 693].) Preparation alone is not sufficient. "Something more is required than mere menaces, preparation or planning." (30 CJ, p 13.) "The preparation consists in devising or arranging the means or measures necessary for the commission of the offense; the attempt is the direct movement towards the commission after the preparations are made. * * * Therefore, the act must reach far enough towards the accomplishment of the desired result to amount to the commencement of the consummation." (8 RCL, pp 278, 279.) "[T]here must be at least some appreciable fragment of the crime committed, and it must be in such progress that it will be consummated unless interrupted by circumstances independent of the will of the attempter." (1 Wharton's Criminal Law [12th ed], p 280.)'"

See People v Miller, 2 Cal 2d 527, 530-532; 42 P2d 308; 98 ALR 913.

"Attempt," as defined by Webster's Seventh New Collegiate Dictionary, is "to make an effort" or "to try" something. When defendant was asked "* * * did something happen here that, in this attempt, that you were intercepted and prevented in the attempted possession of it", it is possible that he had or had not made a direct movement toward the commission of the crime. Defendant's affirmative response required him to make a legal determination which should have been made by the trial judge after eliciting proper facts regarding the commission of the crime charged. We are, therefore, compelled to set aside defendant's guilty plea. Due to our holding, it is unnecessary to consider the other issue raised.

Reversed and remanded.

All concurred.

NOTES

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