People v. Moore , 129 Mich. App. 354 ( 1983 )

129 Mich. App. 354 (1983) 341 N.W.2d 149

PEOPLE
v.
MOORE

Docket No. 64341.

Michigan Court of Appeals.

Decided September 7, 1983.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William F. Delhey, Prosecuting Attorney, and Lynwood E. Noah, 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 first-degree criminal sexual conduct, MCL 750.520b; MSA 28.788(2), and assault with intent to commit murder, MCL 750.83; MSA 28.278. Sentenced to serve two concurrent terms of from 20 to 30 years in prison, consecutive to another sentence which he is presently serving, defendant appeals as of right.

Defendant argues first that the examining magistrate abused his discretion in binding defendant over on the charge of assault with intent to commit murder because of a lack of evidence that defendant had an intent to kill. We have reviewed the preliminary examination transcript and agree with the magistrate that there was sufficient evidence of an intent to kill to bind defendant over on the assault with intent to murder charge. Defendant brought up the subject of killing during the episode. Defendant tried to strangle his victim. The attack did not cease until the victim convinced the defendant that he needed her alive so that she could drive her car. Positive proof of an intent to kill is not required; rather, there need only be evidence of an intent to kill or evidence from which an intent to kill may be inferred. See People v Oster, 67 Mich. App. 490, 495; 241 NW2d 260 (1976), lv den 397 Mich. 848 (1976).

Defendant argues next that his guilty pleas were induced by an illusory plea bargain agreement, in which the prosecutor agreed to dismiss kidnapping and habitual offender charges. Defendant argues that the prosecutor could not have convicted him of kidnapping. We disagree that defendant could not have been convicted of kidnapping along with the other two offenses. In People v Barker, 411 Mich. 291; 307 NW2d 61 (1981), the Supreme Court made clear that an individual can be convicted of kidnapping and related offenses. Indeed, the Court commented:

"Our holding does not preclude the possibility of the concurrent commission of first-degree criminal sexual conduct and kidnapping. A properly instructed jury could find under the facts of a particular case, for example, that movement of the rape victim was sufficient to satisfy the requisite asportation element for a kidnapping conviction." Barker, supra, pp 301-302.

We find no barrier to defendant's being exposed to trial for and convicted of kidnapping.

Defendant's next argument is that he is entitled to resentencing because the sentencing judge and defense counsel had a presentence conference in defendant's absence. Defendant has failed to make a showing on the record that what transpired at the conference was objectionable in any form. Thus, there is no error. See People v Pulley, 411 Mich. 523; 309 NW2d 170 (1981).

Defendant argues next that he was denied effective assistance of counsel. Defendant claims that he informed his court-appointed attorney that he was not present at the commission of the offense but that his attorney told him that he must first take a polygraph examination before his attorney would proceed with such a defense. No evidence has been cited in support of the defendant's assertion that such an exchange occurred between him and his trial counsel.

Defendant did not move for a new trial at the trial court level, nor did he request that the trial court conduct an evidentiary hearing in support of his claim. In proceeding to this Court, defendant did not move, prior to filing a brief on the merits, for a remand to the trial court for purposes of conducting an evidentiary hearing.

To the extent that a defendant's ineffective-assistance-of-counsel claim depends on facts not of record, it is incumbent upon him to make an evidentiary record at the trial court level in connection with a motion for a new trial. People v Ginther, 390 Mich. 436, 443; 212 NW2d 922 (1973). Thus, this Court will not review a claim of ineffective assistance of counsel based on allegations not supported by the record when no motion for a new trial or for an evidentiary hearing has been made and where a timely motion for a remand has not been filed with this Court. People v Lawson, 124 Mich. App. 371; 335 NW2d 43 (1983). A timely motion to remand, made prior to submission of the case on the merits, will be granted if the motion reveals that a testimonial record must be developed. See GCR 1963, 817.6. Since defendant's claim relies on facts not of record, failure to seek a remand in order to develop an evidentiary record precludes us from reviewing his claim. Thus, we deem the issue waived.

In a supplemental brief, defendant argues that the 180-day rule, MCL 780.131; MSA 28.969(1), was violated and that, therefore, the circuit court did not have jurisdiction to accept defendant's plea. We have reviewed the record and find this argument to be without merit. We find prompt goodfaith action on the case during the 180-day time period in readying the case for trial. See generally People v Till, 115 Mich. App. 788, 792; 323 NW2d 14 (1982), lv den 417 Mich. 929 (1983).

Affirmed.

NOTES

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