Opinion
Docket No. 7,952.
Decided June 2, 1970.
Appeal from Oakland, Clark J. Adams, J. Submitted Division 1 February 24, 1970, at Detroit. (Docket No. 7,952.) Decided June 2, 1970.
Peter P. Fronius was convicted, on his plea of guilty, of breaking and entering. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Thomas G. Plunkett, Prosecuting Attorney, Dennis Donohue, Chief Appellate Counsel, and Edward Sosnick, Assistant Prosecuting Attorney, for the people.
James R. Laidig, for defendant on appeal.
Before: LEVIN, P.J., and J.H. GILLIS and V.J. BRENNAN, JJ.
The defendant was convicted on his plea of guilty of the charge of breaking and entering. MCLA § 750.110 (Stat Ann 1970 Cum Supp § 28.305). On appeal he asserts that the trial judge did not by direct questioning of the defendant, as required by People v. Barrows (1959), 358 Mich. 267, 272, ascertain the crime and the defendant's participation in its commission. The people have moved to affirm.
In response to questioning by the judge the defendant said that at approximately 11 or 12 o'clock at night he entered a business establishment through a window and that his purpose in doing so was to steal some money. It was not, however, established in the questioning of the defendant that the window was closed or that it was necessary to move it so that the defendant could enter. See People v. White (1908), 153 Mich. 617. There is, however, no reason to believe that the window of this business establishment had been left open at that hour of the night. Nor is it claimed on this appeal that the window was closed.
During the examination the defendant said that Timothy McLean and Theodore Dingman were with him when he entered the building. Dingman and McLean were also charged and also pled guilty at the same hearing during which the defendant Fronius pled guilty. In response to a question from the court, Dingman said he opened the window and explained how he did so.
It would, of course, have been better had the trial judge questioned the defendant on this aspect of the matter. Under all the circumstances we are not prepared to say that the questioning was so incomplete as not to provide an adequate factual basis for the acceptance of a plea of guilty to this offense. See People v. Bartlett (1969), 17 Mich. App. 205. See, also, People v. Seifert (1969), 17 Mich. App. 187; People v. Melvin (1969), 18 Mich. App. 652.
The motion to affirm is granted.