People v. DeLong , 128 Mich. App. 1 ( 1983 )

128 Mich. App. 1 (1983) 339 N.W.2d 659

PEOPLE
v.
DeLONG

Docket No. 66772.

Michigan Court of Appeals.

Decided August 2, 1983.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, George B. Mullison, Prosecuting Attorney, and Thomas J. Rasdale, Assistant Prosecuting Attorney, for the people.

Charles E. Binder, for defendant.

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

PER CURIAM.

Defendant pled nolo contendere to resisting and obstructing a police officer, MCL 750.479; MSA 28.747. He also pled guilty to being a third-offense habitual felony offender, MCL 769.11; MSA 28.1083. Sentenced to a term of from 32 to 48 months in prison, defendant appeals as of right.

Defendant states that he pled nolo contendere because he was intoxicated at the time of the incident and could not sufficiently remember the event to provide a factual basis in support of his plea. See generally GCR 1963, 785.7(3)(a). He now argues on appeal that the trial court erred in accepting his plea without first requiring the prosecution to produce evidence negating his "intoxication defense".

It is well-established that when a nolo contendere plea is offered to a specific intent crime because the defendant was too intoxicated to remember the events of the incident the prosecution must offer evidence refuting the intoxication defense. See People v Polk (On Rehearing), 123 Mich. App. 737; 333 NW2d 499 (1983); People v Stoner, 23 Mich. App. 598, 608; 179 NW2d 217 (1970), lv den 383 Mich. 806 (1970). Resisting and obstructing a police officer, however, is not a specific intent crime. People v Gleisner, 115 Mich. App. 196; 320 NW2d 340 (1982). Voluntary intoxication, therefore, is not a defense. Gleisner, supra, p 200; see People v Langworthy, 416 Mich. 630; 331 NW2d 171 (1982) (expressly holding that voluntary intoxication is not a defense to general intent crimes). The trial court did not err, therefore, in accepting defendant's nolo contendere plea to resisting and obstructing a police officer without requiring the prosecution to produce evidence refuting the fact of defendant's intoxication at the time of the crime.

Defendant argues next that since resisting and obstructing a police officer has been specifically labeled by the Legislature to be a misdemeanor, see MCL 750.479; MSA 28.747, he cannot be sentenced as being a third-offense habitual felony offender. At first blush, defendant's argument is attractive. Indeed, the habitual offender provision under which defendant was sentenced refers to a person committing a subsequent "felony" after having been previously convicted of two or more felonies or attempted felonies. See MCL 769.11; MSA 28.1083. The resisting-and-obstructing penal statute does in fact refer to such an offense as being a misdemeanor. See MCL 750.479; MSA 28.747.

The habitual offender provisions, however, are part of Michigan's integrated code of criminal procedure, MCL 760.1 et seq.; MSA 28.841 et seq. The code specifically defines the term felony "as used in this act", to include, among other things, offenses which are punishable by imprisonment of one year or more. MCL 761.1(g); MSA 28.843(g). Resisting and obstructing a police officer is punishable by a prison term of up to two years. MCL 750.479; MSA 28.747. Thus, resisting and obstructing a police officer is a "felony" for purposes of application of the habitual offender provisions of the Code of Criminal Procedure. People v Rosecrants, 88 Mich. App. 667; 278 NW2d 713 (1979). But see People v Reuther, 107 Mich. App. 349, 353-359; 309 NW2d 256 (1981) (BRONSON, J., dissenting, stating that the attempted possession of marijuana with intent to deliver, an offense labeled a "misdemeanor" but which carries a maximum penalty of two years imprisonment, should not be considered to be a felony for purposes of the limitation on length of probation provisions contained in the Code of Criminal Procedure).

Affirmed.

NOTES

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