People v. Tucker

D. F. Walsh, J.

(concurring). I concur with the majority that this conviction must be set aside. I write separately to urge the Supreme Court to reexamine the policy considerations underlying its decision in People v Rogers, 412 Mich 669; 316 NW2d 701 (1982). The Court has imposed the sanction of automatic reversal for failure to follow GCR 1963, 785.7(l)(f) even absent any demonstration of prejudice to the defendant. In my judgment, imposition of this sanction would be appropriate, if ever, only to correct a most serious problem affecting the criminal justice system, a problem which could not be resolved fairly and effectively in any other way. I am not persuaded that the extremely remote possibility that a murderer or armed robber may plead guilty under the mistaken belief that he or she will be placed on probation is a problem requiring such a drastic *294and inflexible remedy. The voluntariness and understanding nature of such pleas can be insured adequately by appellate consideration of each case on its own merits to determine if prejudicial error occurred. As the Supreme Court stated in People v Robinson, 386 Mich 551, 562; 194 NW2d 709 (1972):

"[A]ppellate courts should not reverse a conviction unless the error was prejudicial.”

In this case, defendant does not even claim that he was prejudiced, and the record conclusively establishes that his pleas were made in an understanding, voluntary, and accurate manner. He was fully aware that he would not be placed on probation. Were it not for the mandate of People v Rogers, supra, therefore, I would affirm.