PEOPLE
v.
GREEN
Docket No. 63332.
Michigan Court of Appeals.
Decided February 25, 1983.Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Gerald L. White, Prosecuting Attorney, and Mary C. Smith, Assistant Attorney General, for the people.
State Appellate Defender (by Stuart B. Lev), for defendant on appeal.
Before: BRONSON, P.J., and T.M. BURNS and ALLEN, JJ.
PER CURIAM.
On July 6, 1981, defendant pled guilty to transporting a female for the purpose of prostitution, MCL 750.459; MSA 28.714, and was sentenced to a term of from 5 to 20 years imprisonment. He appeals as of right.
Defendant first argues that the statute to which he pled guilty is unconstitutionally vague and overbroad. However, constitutional challenges on the basis of vagueness, other than those based on First Amendment rights, must be examined in the light of the case's particular facts. People v Gilliam, 108 Mich. App. 695; 310 NW2d 843 (1981). Furthermore, for defendant to have standing to challenge the statute on overbreadth the statute must be "overbroad in relation to defendant's conduct. One may not constitutionally challenge a statute on grounds of overbreadth against him when the statute clearly applies." People v Burton, 87 Mich. App. 598, 601; 274 NW2d 849 (1978). Defendant's hypotheticals for both constitutional attacks present some interesting problems. However, defendant's conduct clearly fits within the *566 statute. He intentionally drove in his car a woman from Saginaw to Midland to place her into a house of prostitution. Whatever else the statute may or may not cover, it applies here. As such, defendant has no standing to argue either constitutional issue.
Defendant also argues that the statute is unconstitutional because it impermissibly discriminates on the basis of sex. However, the operative word in the statute is the word "person". As such, either men or women can violate this statute. Therefore, defendant does not have standing to challenge this statute on an equal protection basis. In United States v Garrett, 521 F2d 444, 446 (CA 8, 1975), the defendant appealed his Mann Act, 18 USC 2421, conviction claiming that it denied him equal protection of the laws because it applied only to transporting females and not to transporting males:
"The persons affected by a criminal statute are defendants. Garrett does not argue that similarly situated defendants are treated disparately on the basis of sex. * * * The statute may be violated by either males or females, it is thus sexually neutral and does not raise questions of an illegal classification."
Similar results have been reached in United States v Bankston, 603 F2d 528 (CA 5, 1979); State v Zaehringer, 280 NW2d 416 (Iowa, 1979); United States v Smith, 574 F2d 988 (CA 9, 1978), cert den sub nom Komok v United States, 439 U.S. 852; 99 S. Ct. 158; 58 L. Ed. 2d 156 (1978) (construing Washington law); Ex Parte Groves, 571 S.W.2d 888 (Tex Crim App, 1978); United States v Green, 554 F2d 372 (CA 9, 1977); People v Sherrod, 50 Ill App 3d 532; 8 Ill Dec 607; 365 NE2d 993 (1977); United States v Caesar, 368 F Supp 328 (ED Wis, 1973), *567 aff'd sub nom United States v Harden, 519 F2d 1405 (CA 7, 1975).
Defendant next argues that the following factual basis elicited at his guilty plea is insufficient:
"The Court: All right. Tell me in your own words what happened which caused this information to be filed against you?
"The Respondent: I transported a female on a trip I was making for the use of prostitution.
"The Court: And when did this occur?
"The Respondent: On or about February 10th, 1981.
"The Court: All right. And what was the name of this female person?
"The Respondent: Dawn M. Neer.
"The Court: And did you transport her in the County of Midland?
"The Respondent: Yes, sir.
"The Court: The purpose was to either place her in a house of prostitution or to get her into prostitution; is that right?
"The Respondent: Yes, sir.
"Mr. Rhead: I don't believe, your Honor, he was going to get her into prostitution. I think he Mr. Green knew that she was a prostitute and transported her for that purpose.
"The Court: All right.
"The Respondent: Yes.
"The Court: If he wants to tell me that, fine.
"The Respondent: Yes, sir.
"The Court: She was a prostitute, you transported her; is that right?
"The Respondent: Yes, sir.
"The Court: And for that purpose?
"The Respondent: Yes, sir."
Defendant argues that this recital was nothing more than just responding affirmatively to a legal conclusion as was condemned in People v Atcher, *568 57 Mich. App. 148, 151; 226 NW2d 77 (1974):[1] "Defendant's affirmative response required him to make a legal determination * * *." However, the present case presents more than just the legal determination based on three questions as in Atcher. A reasonable jury could have drawn an inculpatory inference from this factual basis and convicted defendant. People v Haack, 396 Mich. 367; 240 NW2d 704 (1976); Guilty Plea Cases, 395 Mich. 96; 235 NW2d 132 (1975), cert den 429 U.S. 1108; 97 S. Ct. 1142; 51 L. Ed. 2d 561 (1977). Here, defendant admitted to transporting Dawn Neer and to the fact that the object of the trip was for the purpose of prostitution. These statements constituted more than a mere admission that he was legally guilty.
Defendant next argues that he should be resentenced because the original presentence report did not comply with MCL 771.14; MSA 28.1144, which requires that the "report shall include a specific written recommendation for disposition". The presentence report in this case states:
"Recommendation
"If incarcerated, he should be given credit for twenty-two (22) days served.
"If placed on probation, the following special terms are suggested: * * *."
In failing to make any recommendation at all, this report does not comply with the statute. As such, this case is distinguishable from People v Joseph, 114 Mich. App. 70; 318 NW2d 609 (1982), where this Court ruled that the probation department had *569 complied with the statute by recommending that the defendant not be placed on probation.
In People v Duhamel, 72 Mich. App. 77; 248 NW2d 670 (1976), the presentence report was oral. Because the statute specifically requires that it be written, this Court remanded for a resentencing. Where the presentence report clearly does not comply with the statute's requirements, this Court will remand for a resentencing even though the defendant failed to object at sentencing. Pursuant to People v Triplett, 407 Mich. 510; 287 NW2d 165 (1980), a new presentence report must be drawn up. Because we are remanding, defendant's other issues are moot.
Defendant's conviction is affirmed. This case is remanded for a resentencing.
NOTES
[1] Atcher is a pre-GCR 1963, 785.7 case. Whether or not it has any continuing validity need not be decided.