PEOPLE
v.
EARL JONES
Docket No. 44306.
Michigan Court of Appeals.
Decided December 6, 1979.Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert L. Kaczmarek, Prosecuting Attorney, and Linda Berns Wright, Appellate Prosecuting Attorney, for the people.
John A. Lydick, Assistant State Appellate Defender, for defendant on appeal.
Before: CYNAR, P.J., and MacKENZIE and L.W. CORKIN,[*] JJ.
CYNAR, P.J.
On October 23, 1978, in Saginaw County Circuit Court, defendant pled guilty to a charge of second-degree murder, MCL 750.317; MSA 28.549. Defendant pled guilty in exchange for the prosecutor's agreement to dismiss the original charges of first-degree murder, MCL 750.316; MSA 28.548, assault with intent to murder, MCL 750.83; MSA 28.278, and felony firearm, MCL 750.227b; MSA 28.424(2). When the offense to which defendant pled was committed he was on parole from a sentence to prison for armed robbery.
In the plea proceeding the trial court advised defendant of the maximum sentence but failed to advise him of any mandatory minimum sentence for second-degree murder. Also the trial court failed to advise the defendant that second-degree murder is a nonprobationable offense.
Defendant was sentenced on January 19, 1979, to life imprisonment. He has filed a timely appeal *235 as of right citing as reversible error the court's failure to properly advise in the plea-taking process as set forth in the preceding paragraph. We disagree, as we conclude that neither error necessitates reversal.
With regard to defendant's first assignment of error, other panels have found that a criminal statute which carries a punishment of imprisonment "for life or any term of years" has no mandatory minimum sentence vis-a-vis the dictates of GCR 1963, 785.7. People v Freeman, 73 Mich. App. 568; 252 NW2d 518 (1977), People v McKnight, 72 Mich. App. 282; 249 NW2d 392 (1976), People v Landis, 91 Mich. App. 345; 283 NW2d 647 (1979), cf., Guilty Plea Cases, 395 Mich. 96, 118; 235 NW2d 132 (1975). Those cases, although speaking to the armed robbery statute, are equally persuasive here, as the punishment provision in MCL 750.317 is identical. Thus, since the offense of second-degree murder carries no mandatory minimum sentence, it cannot be error to fail to advise a defendant of a negative.
Nor do we find the failure to inform defendant that second-degree murder is a nonprobationable offense reversible error. Under a prior version of GCR 1963, 785.7, a trial court was not required to tell a defendant that if his plea is to murder, he cannot be placed on probation. Under that rule, the failure to so inform a defendant was not reversible error. Guilty Plea Cases, supra, 118. However, the day that Guilty Plea Cases was decided, the Supreme Court promulgated an amendment to GCR 785.7, which in newly added subpart (1)(f) required a trial court to advise a defendant regarding nonprobationable offenses. This the trial court failed to do in the instant case.
However, noncompliance with GCR 785.7 does *236 not necessarily require reversal. Guilty Plea Cases, supra, 113. In People v Lendzian, 80 Mich. App. 323; 263 NW2d 360 (1977), this Court declined to reverse a plea-based conviction for armed robbery, even where the defendant was not told that he could not be placed on probation. The Court noted that defendant was read the armed robbery statute, including the punishment provision, i.e., life or any term of years, and acknowledged that he understood the possible punishment for armed robbery. People v Lendzian, supra, 325.
Similarly, in this case defendant was informed that the maximum sentence was life, and stated that he understood the maximum penalty. As a previous felony offender, defendant was also familiar with the criminal justice system. Further, he was also in violation of the terms of his parole and was apprised of the possible consequences therefor. Finally, the crime with which defendant was charged was a grievous one. Defendant had no expectation of being placed on probation. We find that, on these facts, the noncompliance with GCR 1963, 785.7(1)(f) does not mandate reversal.
As no error requiring reversal has been established, we hereby affirm.
Affirmed.
MacKENZIE, J., concurred.
L.W. CORKIN, J. (dissenting).
I respectfully dissent.
At the time the plea in this case was taken GCR 1963, 785.7(1)(f) required that when the plea was to murder, armed robbery or treason, the trial court inform the defendant that he could not be placed on probation. In People v Freeman, 73 Mich. App. 568; 252 NW2d 518 (1977), it was recognized that a failure to so advise could amount to reversible *237 error although there was no reversal in the case because as the result of a sentence agreement defendant knew, prior to his plea, that he would be sentenced to prison if he pleaded guilty. I am aware of People v Lendzian, 80 Mich. App. 323; 263 NW2d 360 (1977), where there was no reversal when defendant was not informed of his ineligibility for probation. However, in Lendzian the trial court did inform the defendant that armed robbery was "punishable by imprisonment in the state prison for life or for any term of years" and defendant stated on the record that he understood the possible punishment for armed robbery. The court was of the opinion that defendant's understanding of possible punishment was sufficient to satisfy the requirement of GCR 1963, 785.7(1)(f).
In this case the trial court only advised defendant that "the maximum penalty is life" and said nothing about "any term of years".
This case is distinguishable from both Freeman and Lendzian and the plea-based conviction should be vacated. Although, considering the crime pled to, as well as defendant's criminal record, he probably had no expectation of being placed on probation.
Defendant's second claim of error is based on GCR 1963, 785.7(1)(d) which requires that the plea-taking court advise the defendant of the "mandatory minimum prison sentence, if any, for the offense". When this language has been applied to a sentence for second-degree murder, armed robbery or treason, and where the term of confinement may be "imprisonment for life or any term of years", confusion has resulted.
One might think that when the rule speaks of a mandatory minimum sentence it means a mandatory minimum sentence definitely stated as to *238 length of time in the sentencing statute (i.e., 20 years for possession of 225 grams or more, but less than 650 grams) MCL 333.7403; MSA 14.15(7403). This was apparently the interpretation arrived at by a majority of the Court in People v Freeman, 73 Mich. App. 568; 252 NW2d 518 (1977), with one judge giving no opinion on the issue. The opinion simply stated that there was no mandatory minimum sentence for armed robbery, citing the armed robbery statute. MCL 750.529; MSA 28.797.
However, the Freeman Court made no mention of People v Burridge, 99 Mich. 343, 345; 58 N.W. 319 (1894), where the Court stated that "any term of years" must be construed for a time not less than two years. It was apparently the fate of Burridge to be overlooked from time to time.
Apparently, it was overlooked by the Supreme Court in Guilty Plea Cases, 395 Mich. 96, 118; 235 NW2d 132 (1975), where the Court said in reference to GCR 1963, 785.7(1)(b):
"In Hord, the judge informed the defendant that by pleading guilty to robbery armed he subjected himself to a possible sentence of `up to life' but did not advise him that he could not be placed on probation. A person convicted of armed robbery is subject to a sentence of life or any term of years (MCLA 750.529; MSA 28.797), and may not be placed on probation (MCLA 771.1; MSA 28.1131).
"The rule does not require the judge to inform the defendant of all sentence consequences only the maximum sentence, any mandatory minimum and, as appears below, if he is on probation or parole, the possible effect on his status as a probationer or parolee.
"The rule reflects the extent to which this Court is willing to impose on the judge the obligation of informing the defendant of such consequences. A failure to impart the information so required by this subsection (b) will continue to require reversal." (Emphasis added.)
*239 There was no reversal of Hord, supra, nor was there any mention of Burridge, supra, or that the words "any term of years" created a mandatory minimum sentence of any period.
In People v McKnight, 72 Mich. App. 282; 249 NW2d 392 (1976), in a per curiam opinion, this Court found no error in the trial court's advising defendant that the minimum sentence for his plea to armed robbery would be one year in prison. The Court made reference to People v Burridge, supra, by stating in the opinion that the Supreme Court in its ruling in Hord, supra, rejected Burridge, supra. The Court also said, referring to the ruling in Hord in the Guilty Plea Cases, supra:
"In this case the Court expressly stated that failure to advise a defendant of any mandatory minimum sentence was reversible error. Hord was not advised that the offense of armed robbery carried any mandatory minimum sentence. Nevertheless, his plea-based conviction was affirmed. We must infer from this that there was no necessity to advise a defendant of any minimum sentence before accepting a plea of guilty to an offense punishable by imprisonment for life or `any term of years.'" People v McKnight, supra, 283-284.
However, the question was not resolved.
In People v Harper, 83 Mich. App. 390; 269 NW2d 470 (1978), the Court seemingly returned to interpreting "any number of years" as establishing a mandatory minimum sentence of some duration. Recognizing that the Burridge case had been discredited by the Guilty Plea Cases, supra, and People v McKnight, supra, the Court concluded that the phrase did not mean a minimum of two years but asserted that it must mean some minimum period and then set about determining such *240 period by the statutory construction.[1]
In Harper, the trial court had informed the defendant that as far as armed robbery was concerned it was mandatory that the court sentence him to some term of years. The appellate court, at the conclusion of the statutory construction portion of its opinion concluded its ruling on the issue by saying:
"Our analysis does not require reversal here. First of all defense counsel had no objection and was satisfied with the court's compliance with GCR 1963, 785.7 in this regard. Secondly, under prior case law advice to the defendant that he was required to be imprisoned for a minimum of a term of years was sufficient. Neither do we say that in the future since `any term of years' mandates a minimum sentence of a year and a day that fact must be communicated to the defendant in those words under pain of reversal. We suggest only that a more exact way of stating the rule appears to be: A defendant who must be sentenced to `any term of years' may not be sentenced to less than a minimum of a year and a day (366 days) to a (minimum) maximum of 18 months and 1-1/2 days (549 days)." (Emphasis added.) People v Harper, supra, 398-399.
I conclude that the holding in Harper, supra, is that as long as the trial court informs the accused that the punishment is imprisonment "for life or for any term of years" it is sufficient. However, the suggestion is made that further amplification could be made by spelling out a specific minimum sentence of some length, possibly one year and a day. I further conclude, as the law now stands, that as long as the trial court informs the accused that the possible sentence for second-degree murder, *241 armed robbery or treason, is imprisonment for life or for any term of years, it is not necessary that the court name some period of time as a mandatory minimum sentence, particularly in view of the fact that there is no definitive statement as to what such mandatory minimum period should be.
In this case the trial court only advised the defendant that the maximum penalty was life. This is not sufficient compliance with GCR 1963, 785.7(1)(d) under any interpretation reversal is required.
A final observation may be in order. Had we held that the trial court should have advised defendant of a mandatory minimum sentence then, presumably, there would be no point in advising him that he would be eligible for probation and a failure to do so would be harmless error.
Defendant's plea conviction should be vacated and the case should be remanded for trial.
NOTES
[*] Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.
[1] I make no comment concerning the Court's reasoning in construing the statute which led to the conclusion that the phrase means that the minimum sentence would be a year and a day (366 days) to a minimum-maximum of 18 months and 1-1/2 days (549 days).