Opinion
Docket No. 52048.
Decided September 10, 1981. Leave to appeal applied for.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Michael R. Smith, Prosecuting Attorney, and Leonard J. Malinowski, Assistant Attorney General, for the people.
James D. Hayne, for defendant on appeal.
In proceedings below, the defendant tendered separate pleas of nolo contendere to charges of armed robbery, MCL 750.529; MSA 28.797, and unarmed robbery, MCL 750.530; MSA 28.798. On April 28, 1980, the lower court imposed a sentence of from 15 to 50 years imprisonment for the armed robbery charge and a 10- to 15-year sentence for unarmed robbery. The sentences were to run concurrently. The defendant appeals as of right and raises two issues.
It is first alleged that the trial court committed reversible error in failing to inform defendant of the nonprobationable nature of the armed robbery conviction, pursuant to GCR 1963, 785.7(1)(f). In a recent decision, People v Sylvester, 103 Mich. App. 499, 504-505; 303 N.W.2d 230 (1981), we noted the current split on this Court on the issue of strict compliance with subrule (f). At that time two lines of decisions were at odds: People v Lendzian, 80 Mich. App. 323; 263 N.W.2d 360 (1977) (failure to comply with subrule [f] excused where armed robbery charge, indicating potential maximum and minimum sentences, was read to and understood by defendant), and People v Earl Jones, 94 Mich. App. 232; 288 N.W.2d 385 (1979) (similar failure excused where defendant was a prior offender and parolee with presumed knowledge of the law and offense of second-degree murder was a grievous one), were at odds with People v Thalacker, 99 Mich. App. 372, 375; 297 N.W.2d 670 (1980) (Lendzian and Jones wrongly decided; provisions of GCR 1963, 785.7[1][f] may only be waived where a sentence bargain is made). The Sylvester panel joined the Lendzian and Jones rationale, stating:
If "strict compliance" means "make no errors on pain of reversal" it is a concept alien to the American Criminal Justice System and should be exorcised. Judges make mistakes. They always have and always will. Proper direction of the inquiry of reviewing courts is in the area of delivery of justice.
"We disagree with the restrictive ruling of Thalacker and hold that the trial court's error herein was harmless. In so holding, we note the conclusion of the Supreme Court in Guilty Plea Cases, 395 Mich. 96, 113; 235 N.W.2d 132 (1975), regarding general adherence to the rule's requirements:
"`We conclude that the policy expressed in [People v Shekoski, 393 Mich. 134; 224 N.W.2d 656 (1974)], that any failure of strict adherence to the procedure and practice specified in Rule 785.7 mandates reversal, should be modified. Noncompliance with a requirement of Rule 785.7 may but does not necessarily require reversal.
"`Whether a particular departure from Rule 785.7 justifies or requires reversal or remand for additional proceedings will depend on the nature of the noncompliance.'
"This general holding is not applicable to all sections of the disputed court rule. In Guilty Plea Cases, the majority specifically held that noncompliance with subsection (b) of the rule `will continue to require reversal'. Id., 118. However, we can discern no intent from Guilty Plea Cases that the holding quoted should not apply to the new court rules issued as part of the Supreme Court's opinion, specifically GCR 1963, 785.7(1)(f).
"The present case closely resembles People v Lendzian, supra. As in Lendzian, the defendant indicated his understanding of the sentencing consequences of his decision to enter into a plea bargain. Where the defendant so understood the charge and sentencing imposable by the second-degree murder statute, the trial court's failure to strictly comply with GCR 1963, 785.7(1)(f) does not constitute reversible error." Sylvester, supra, 505-506.
We hold that Sylvester, applying Guilty Plea Cases, supra, aptly states the inquiry necessary to determine whether a specific failure to comply with GCR 1963, 785.7(1)(f) constitutes reversible error.
At first glance, the instant case would appear to be covered by the Supreme Court's recent decision in People v Jones, 410 Mich. 407; 301 N.W.2d 822 (1981). However, we find this decision distinguishable from the instant case. The confusion in Jones arises from the Supreme Court's summary of the facts relating to one of the defendant's (Abraham Jones's) appeals. The Court stated:
" The judge did not tell the defendant [Abraham Jones] that he could not be put on probation for armed robbery nor did the judge tell the defendant that the maximum possible sentence was life imprisonment. Because of these omissions, the defendant argued in the Court of Appeals that his plea should be set aside. The prosecutor responded with a motion to affirm which the Court of Appeals granted on November 13, 1979. The defendant filed a request for review in this Court." People v Jones, supra, 409. (Emphasis added.)
From this discussion, it would appear that the Court was going to require the information about armed robbery not being probationable to be given to fulfill a trial court's burden to inform about maximum and minimum sentences under GCR 1963, 785.7(1)(b) and (d), the rules which were at issue in Jones. However, there is no further mention in the Jones opinion of the trial court's failure to mention that probation is unavailable for armed robbery. The Court then concluded:
"The judges in these cases — did not tell Abraham Jones that the maximum sentence for armed robbery is life imprisonment; and — did not tell Terrence Grant or Albert Grant that the maximum sentence for armed robbery is life imprisonment or that possession of a firearm in the course of a felony carries a mandatory two-year term of imprisonment.
"We once again advise the bench and bar that there must be strict compliance with Rule 785.7(1), subds (b) and (d). Consequently, in lieu of granting leave to appeal, we affirm the judgments of the Court of Appeals in the Grants' appeals, reverse the judgments of the Court of Appeals in Jones' appeals, and set aside those plea-based convictions." Id., 412.
Thus, the sole basis for reversing as to Jones, with respect to subrules (b) and (d), was that the maximum sentence was not mentioned — not that the unavailability of probation was overlooked. We thus conclude that Jones is not authority for a holding that the failure to inform a defendant of the nonprobationable nature of an offense is per se reversible error.
Our review of the facts in this case discloses that the defendant waived a reading of the armed robbery statute at the time of his plea. During the plea-taking proceeding below, however, the defendant was informed that armed robbery carried a potential term of "life imprisonment or any term of years up to life imprisonment", thus imparting to the defendant the same sentence information embodied in the armed robbery statute. Thereafter, the following colloquy between the trial court and defendant took place:
" The Court: All right. Since you have entered a plea of no contest or nolo contendere, I again want to make sure you understand the nature of the charge that has been placed against you. It is a charge of armed robbery, and as I mentioned, carries with it a possible imprisonment of up to life or any term of years lesser than life.
"The charge is that on November 12, 1979, at the Log Cabin Store, south of Hillsdale, here in Hillsdale County, located in Woodbridge Township, and more specifically at 808 South Hillsdale Road, you did assault with a dangerous weapon, in this case, a knife, one Peggy Louise Wingate; that as a result of that assault and with that knife you did then and there at that time take from her or steal some property that she had in her possession or under her control, in this case, money or beer.
"And again I mention to you that the possible penalty is up to life imprisonment.
"Do you understand, Mr. Belknap, that if your plea of no contest or nolo contendere is accepted, that this would constitute a conviction of that particular charge placed against you; that it would be a conviction of the charge of armed robbery?
" Defendant Belknap: Yes."
From this exchange it is apparent that the defendant, prior to the lower court's acceptance of his nolo contendere plea, was made aware of and fully understood the offense with which he was charged and potential punishments. Applying the rule established in Lendzian and followed in Sylvester, we thus hold that the defendant's plea to armed robbery is not rendered invalid by the lower court's failure to strictly comply with GCR 1963, 785.7(1)(f).
The defendant also alleges as reversible error the failure of the trial court to require the defendant's waiver of jury trial to be made in writing, pursuant to MCL 763.3; MSA 28.856. We disagree. In People v Sullivan, 38 Mich. App. 208, 209; 196 N.W.2d 2 (1972), this Court stated:
Since amended by 1980 PA 506.
"Defendant argues that MCLA 763.3; MSA 28.856 requires that a waiver of a jury trial be in writing. By its terms this statute applies only to trial by a judge and has no application to a guilty plea." (Emphasis added.)
Accord, People v Hibbitt, 74 Mich. App. 650, 651; 254 N.W.2d 602 (1977). Because the factors governing the plea-waiver doctrine are identical for pleas of guilty and nolo contendere, People v Riley, 88 Mich. App. 727, 729; 279 N.W.2d 303 (1979), citing People v Goodman, 58 Mich. App. 220, 222; 227 N.W.2d 261 (1975), the statute under which the defendant's claim of error is based in equally inapplicable. Thus, the defendant's allegation of error is without merit.
Affirmed.