Opinion
Docket No. 56955.
Decided March 18, 1982.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Michael W. LaBeau, Prosecuting Attorney, and Kenneth M. Swinkey, Assistant Prosecuting Attorney, for the people.
Herb Jordan, Assistant State Appellate Defender, for defendant on appeal.
Before: CYNAR, P.J., and M.J. KELLY and D.C. RILEY, JJ.
Defendant Richard Gooch pled guilty to breaking and entering an unoccupied dwelling, MCL 750.110; MSA 28.305. He was sentenced to from four to ten years imprisonment. Defendant appeals, claiming the trial court failed to comply with GCR 1963, 785.7(1)(d) when it did not inform him of the sentencing consequences of Proposal B, MCL 791.233b; MSA 28.2303(3).
The Court first addressed this issue in People v Elder, 104 Mich. App. 651; 305 N.W.2d 563 (1981), lv den 412 Mich. 866 (1981). The Court noted that GCR 1963, 785.7 did not require the trial judge to tell the defendant about the effects of Proposal B on a defendant's sentence prior to accepting his guilty plea. Id., 653. The Court also noted that the Supreme Court had not amended GCR 1963, 785.7 to require an instruction on Proposal B. Id., 654. Therefore, the Court refused to reverse defendant's conviction. This same result was reached in People v Solomon, 104 Mich. App. 695; 305 N.W.2d 295 (1981).
In both Elder and Solomon, I dissented, expressing the opinion that the trial judge was required to inform defendant of the sentencing consequences of Proposal B. In People v King, 111 Mich. App. 363; 314 N.W.2d 622 (1981), on reanalysis of the position taken in Solomon, supra, I concluded that the trial judge did not violate GCR 1963, 785.7 where he failed to inform defendant of the sentencing consequences of Proposal B.
Where a defendant has been misled as to the consequences of Proposal B, I feel that reversal is still required. Elder, supra, 656 (KELLY, J., dissenting). In this case, defendant has failed to show that he was misled.
Another panel of this Court has recently reached a different conclusion. In People v Lamarr Johnson, 111 Mich. App. 666; 314 N.W.2d 655 (1981), two judges ruled that it would be impossible for the defendant to have known the minimum sentence unless he was advised of the mandatory requirements of Proposal B. They reversed defendant's conviction because the trial court had not advised defendant of the sentencing consequences of Proposal B. Judge KAUFMAN dissented, citing Elder, supra, and Solomon, supra.
For the reasons expressed in King, supra, defendant's conviction is affirmed.
CYNAR, P.J., concurred.
Judge RILEY concurs for the reasons stated in People v Hadley, 114 Mich. App. 117; 318 N.W.2d 625 (1982).