PEOPLE
v.
CANNOY
Docket No. 69920.
Michigan Court of Appeals.
Decided August 6, 1984.Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Robert E. Weiss, Prosecuting Attorney, and Donald A. Kuebler, Chief, Appellate Division, for the people.
N. Victor Farah, for defendant.
Before: ALLEN, P.J., and WAHLS and M. WARSHAWSKY,[*] JJ.
ALLEN, P.J.
On March 28, 1982, defendant pled nolo contendere to attempted breaking and entering with intent to commit felonious assault, MCL 750.110, 750.92; MSA 28.305, 28.287. On January 3, 1983, he was sentenced to a term of 40 to 60 months incarceration.
Defendant pled nolo contendere because he had no recollection of the incident due to his ingestion of intoxicating alcohol and drugs. On appeal he argues that the factual basis for the plea was inadequate because the prosecutor failed to introduce evidence to negate the intoxication defense and therefore the element of intent could not be established. The prosecutor responds by arguing that, by virtue of the entry of defendant's nolo contendere plea, the state is relieved of its burden of proving factual issues, therefore precluding the litigation of the issue of defendant's intoxication on appeal.
Inasmuch as the offense of breaking and entering with intent to commit a felony is a specific intent crime, voluntary intoxication may negate *454 the element of specific intent. See, e.g., People v Blankenship, 108 Mich. App. 794; 310 NW2d 880 (1981); People v Williams, 27 Mich. App. 567; 183 NW2d 830 (1970). When a nolo contendere plea is tendered to a specific intent crime based on the defendant's inability to remember the incident due to intoxication, the prosecution must offer evidence refuting the intoxication defense. See People v DeLong, 128 Mich. App. 1; 339 NW2d 659 (1983); 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); People v Jasinski, 84 Mich. App. 670; 270 NW2d 485 (1978).
In the present case, in order to establish the necessary factual basis, the parties stipulated that the judge should read the transcript of the preliminary examination. The record of the plea-taking procedure indicates that the judge and the parties were aware that intoxication was a defense to this offense and further illustrates the court's concern about the propriety of accepting the plea under such circumstances. However, after reading the transcript, the trial judge found that defendant, while armed with a gun, did break and enter the home and did fire the weapon at the car of the victim. Moreover, based upon the circumstances surrounding the incident, including the use of the weapon and the manner in which the defendant acted, the court found that defendant had the intent to commit a felonious assault. Thus, this situation is distinguishable from that of Polk, supra, where the Court was unable to determine whether the trial court had considered the defendant's claim of intoxication or whether the people had introduced sufficient evidence to refute the defense.
*455 Although the prosecutor did not introduce any evidence at the plea-taking procedure in an effort to refute the intoxication defense asserted by the defendant, we find that the method of establishing the factual basis for the plea provided sufficient evidence for a finding on each element of the offense. Here, the trial judge found, and we concur in his determination, that the preliminary examination testimony of the victim established support for a finding that defendant was guilty of the offense to which he was pleading. As noted in Stoner, supra, p 608, evidence negating a claim of intoxication "might appear in the transcript of a preliminary examination presented to and read by the trial judge before accepting the plea. If from such evidence it appears that the people can substantially refute a claim of intoxication, then a factual basis" for the plea has been established. The findings of the trial court clearly establish that defendant had the specific intent to commit felonious assault, thus negating the asserted defense. We find no need to remand this case to the lower court to allow the prosecutor to present additional evidence to refute the claimed defense when sufficient evidence was presented to the trial court through the preliminary examination testimony to support a finding of specific intent. See People v Mack, 131 Mich. App. 9; 346 NW2d 57 (1983).
Defendant also attacks his sentence as excessive and not justified by the facts and circumstances of the incident for which he was convicted. In order to more fully comply with the mandate of People v Coles, 417 Mich. 523; 339 NW2d 440 (1983), on March 15, 1984, this Court, on its own motion, remanded to the trial court for an explanation of the court's reasons in imposing sentence. Upon *456 review of the lower court file, transcripts and the findings of the lower court, we are not persuaded that the trial court abused its discretion in imposing the given sentence.
Prior to the imposition of sentence on January 3, 1983, the trial court deferred sentencing on two occasions in order to evaluate defendant as a potential candidate for probation. Throughout the various hearings on the matter of the appropriate sentence, the trial judge expressed his concerns about defendant's drinking problem, the breaking and entering of his ex-wife's home and the use of and firing of a weapon during the course of the transaction. Following defendant's failure to abide by the conditions of his delayed sentencing arrangement and his failure to appear for sentencing, the trial court imposed the challenged sentence. Contrary to defendant's contention, although the court did consider his actions during the time that sentence was deferred, we find that the basis for the sentence was tailored to the facts and circumstances of the offense for which he was convicted. The court considered the factors enunciated in People v Snow, 386 Mich. 586; 194 NW2d 314 (1972), and articulated the reasons underlying the nature and length of the sentence. We find no abuse of discretion and find no basis to conclude that the sentence was not individually tailored to the circumstances of the crime based upon a careful and thorough review of all relevant information. The 40- to 60-month sentence does not shock our judicial conscience; thus we affirm the conviction and sentence.
Affirmed.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.