People v. Earl Jones

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 *235as 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-á-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 (l)(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 *236not 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(l)(f) does not mandate reversal.

As no error requiring reversal has been established, we hereby affirm.

Affirmed.

Mackenzie, J., concurred.