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04/01/76 PEOPLE v. BURTON

April 1, 1976

PEOPLE
v.
BURTON



Levin, J. Kavanagh, C. J., and Williams, Coleman, and Fitzgerald, JJ., concurred with Levin, J. Lindemer and Ryan, JJ., took no part in the decision of this case.

SYLLABUS BY THE COURT

1. -- Plea of Guilty -- Acceptance of Plea -- Defenses -- Intoxication.

A trial Judge, in accepting a plea of guilty, is not obliged to examine the defendant regarding a possible intoxication defense even though it appears during the plea-taking colloquy that such a defense might be raised, either under the present court rule on pleas of guilty or the practice before the present rule was adopted (GCR 1963, 785.7).

2. -- Plea of Guilty -- Acceptance of Plea -- Factual Basis -- Intoxication.

A plea of guilty may be accepted even though a defendant asserts that he was intoxicated or narcoticized at the time the offense was committed, as long as the defendant sufficiently recalls facts and circumstances which tend to show that he participated in the commission of the offense.

3. -- Sentences -- Appeal and Error.

The Supreme Court has eschewed any reviewing function for itself or the Court of Appeals with regard to the exercise of the trial Judge's sentencing discretion since enactment of the indeterminate sentence law, which vests in the parole board the power to release prisoners before service of the maximum sentence, and is not yet prepared to take the step of appellate review of sentencing.

The opinion of the court was delivered by: Levin

Harvey Burton, Jr., was convicted on his plea of guilty of second-degree murder, in the Lenawee Circuit Court, Rex B. Martin, J. On defendant's appeal, the Court of Appeals, J. H. Gillis, P. J., and V. J. Brennan and O'Hara, JJ., granted a motion to affirm the conviction (Docket No. 17282). Defendant appeals, arguing that his plea was improperly accepted and that his sentence constitutes cruel and unusual punishment. Held:

1. In accepting a plea of guilty, the trial Judge is not required by the court rule on pleas of guilty, nor was he required before the rule was adopted, to advise the defendant of a potential defense such as "provocation" or "diminished capacity". Even though a defendant asserts he was intoxicated or narcoticized at the time the offense was committed, the Judge may accept a plea of guilty as long as the defendant sufficiently recalls facts and circumstances which tend to show he participated in the commission of the offense.

2. The sentence of 50 to 80 years is within the range permitted by statute for second-degree murder. Since the enactment of the indeterminate sentence statute the Court has eschewed review of the exercise of the trial Judge's sentencing discretion. The Court is not yet prepared to undertake appellate review of sentencing.

Affirmed.

Harvey Burton pled guilty to second-degree murder. The Court of Appeals granted a motion to affirm.

Burton was held on an "open" charge of murder. He waived preliminary examination and an "open" charge information was filed. It appeared to this Court that Burton might have been overcharged and his plea of guilty offered under the constraint of an unwarranted first-degree murder charge. We remanded to the district court for the holding of a preliminary examination to determine whether there was probable cause to ...


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