People v. Morgan , 40 Mich. App. 404 ( 1972 )

40 Mich. App. 404 (1972) 198 N.W.2d 885

PEOPLE
v.
MORGAN

Docket No. 10344.

Michigan Court of Appeals.

Decided May 1, 1972.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Bruce A. Barton, Prosecuting Attorney, and William D. Boham, Chief Appellate Attorney, for the people.

Arthur J. Tarnow, State Appellate Defender, for defendant.

Before: LESINSKI, C.J., and BRONSON and TARGONSKI,^[*] JJ.

PER CURIAM.

Defendant was charged with the crime of indecent liberties with a male child under 16 years of age. MCLA 750.336; MSA 28.568. He pled guilty to an added count of attempted gross indecency with a male person. MCLA 750.338; MSA 28.570. The plea was accepted, and he was sentenced to a term of four to five years in prison.

Appointed appellate counsel did not take a timely appeal since if successful defendant would be subject to retrial on the original charge carrying a greater maximum penalty. An application for delayed appeal filed in propria persona was denied by this Court. Defendant appealed our denial to the Michigan Supreme Court, which granted leave to appeal and remanded to this Court for determination as on a grant by this Court of a delayed application for leave to appeal. 384 Mich. 820 (1971).

The sole issue is whether the trial court made a reasonable ascertainment of the truth of defendant's plea as required by People v Barrows, 358 Mich. 267 (1959).

The colloquy between the court and the defendant did not elicit any specific details of the alleged crime. While a factual basis for a plea may be supplied by the preliminary examination, People v Lown, 30 Mich. App. 121 (1971), the testimony of the two complaining witnesses at defendant's preliminary examination fails to reveal acts which constitute acts of gross indecency, nor under the circumstances of this case, do they constitute an attempt to commit an act of gross indecency. See People v Danielac, 38 Mich. App. 230 (1972).

The trial court did not elicit a substantial factual basis for the plea and it must be set aside. See People v Rufus Williams, 386 Mich. 277 (1971).

Reversed and remanded for proceedings not inconsistent with this opinion.

NOTES

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