Opinion
Docket No. 56472.
Decided March 4, 1982.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, George N. Parris, Prosecuting Attorney, Don L. Milbourn, Chief Appellate Lawyer, and Joseph G. Wetzel, Assistant Prosecuting Attorney, for the people.
William J. McGrail, Jr., for defendant on appeal.
Before: D.C. RILEY, P.J., and R.M. MAHER and CYNAR, JJ.
Defendant pled guilty to attempted breaking and entering of an occupied dwelling, MCL 750.110; MSA 28.305, MCL 750.92; MSA 28.287. Pursuant to a plea agreement, three other charges were dismissed. There was no sentence agreement.
On appeal, defendant challenges the validity of his plea on the ground that the trial court failed to inform him, prior to acceptance of his plea, that the minimum prison term of any sentence he received could not be diminished by parole or by allowances for good time, special good time, or special parole. Defendant pled guilty to a felony covered by Ballot Proposal B, MCL 791.233b; MSA 28.2303(3). He contends that the trial court failed to comply with GCR 1963, 785.7(1)(d) because it did not inform him of the Proposal B consequences of his plea.
Most panels of this Court that have addressed this question have declined to impose such a requirement on trial judges. See, e.g., People v Richards, 106 Mich. App. 16, 17; 307 N.W.2d 692 (1981), People v Solomon, 104 Mich. App. 695, 696-697; 305 N.W.2d 295 (1981).
Recently, however, in People v Lamarr Johnson, 111 Mich. App. 666; 314 N.W.2d 655 (1981), a panel of this Court held that failure to inform a defendant of the consequences of Proposal B is reversible error where a sentence bargain is involved.
Since Lamarr Johnson, some members of this Court have retreated from their opinion that the trial judge is required to inform a defendant of the sentencing consequences of Proposal B. See People v King, 111 Mich. App. 363; 314 N.W.2d 622 (1981). Upon reconsideration of the issue, in light of the fact that the court rules do not require the trial judge to inform defendant of all the sentencing consequences, Guilty Plea Cases, 395 Mich. 96, 118; 235 N.W.2d 132 (1975), and the Supreme Court has not amended GCR 1963, 785.7 to require instruction on the implications of Proposal B, People v Elder, 104 Mich. App. 651; 305 N.W.2d 563 (1981), lv den 412 Mich. 866 (1981), we conclude that the trial court errs in failing to inform the defendant as to the consequences of Proposal B only if there is a sentence bargain with the judge, as distinguished from a bargain for a prosecutor's recommendation, or if the record establishes that the defendant was misled as to the effect of Proposal B. See King, supra, fn 1.
We decline to extend the Lamarr Johnson rationale to situations involving only a plea bargain. Where a sentence bargain has been struck, it is much more important for a defendant to understand that he must serve every day of his minimum sentence.
Affirmed.
While I concur to affirm, I respectfully indicate a preference for the reasoning in Judge KAUFMAN'S dissenting opinion in People v Lamarr Johnson, 111 Mich. App. 666; 314 N.W.2d 655 (1981). Furthermore, I disagree with the proposition that a failure to inform a defendant of Proposal B consequences, MCL 791.233b; MSA 28.2303(3), calls for reversal where a sentence bargain has been made with the trial court, and I note that the instant case does not present such a question.