Opinion
Docket No. 60279.
Decided December 8, 1982. Leave to appeal applied for.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William F. Delhey, Prosecuting Attorney, and David A. King, Assistant Prosecuting Attorney, for the people.
Brian A. Walters, for defendant on appeal.
Before: R.B. BURNS, P.J., and ALLEN and M.J. KELLY, JJ.
Defendant, together with a codefendant, pled guilty to armed robbery, MCL 750.529; MSA 28.797. Defendant appeals, claiming that there was an insufficient factual basis to support his plea, that the trial court failed to inform him that he could not receive probation, and that the court failed to inform him of the mandatory minimum sentence for armed robbery.
The record belies defendant's contention that insufficient facts were elicited by the trial court to support his guilty plea. One who aids and abets the commission of a crime is chargeable as a principal. People v Spry, 74 Mich. App. 584; 254 N.W.2d 782 (1977), MCL 767.39; MSA 28.979. An inculpatory inference could reasonably be drawn by a jury from the facts admitted by the two defendants, enabling the trial court to accept defendant's plea.
However, in taking defendant's plea, the trial court failed to inform defendant specifically that he could not statutorily receive probation and did not tell defendant the minimum sentence he could receive for the offense to which defendant pled guilty.
GCR 1963, 785.7(1) provides that the court shall tell a defendant:
"(d) the mandatory minimum sentence, if any, for the offense;
* * *
"(f) if the plea is to murder, armed robbery or treason, he cannot be placed on probation * * *."
In People v Jones, 410 Mich. 407, 412; 301 N.W.2d 822 (1981), the Supreme Court stated that "there must be strict compliance with Rule 785.7(1), subds (b) and (d)". In the instant case, although the court informed defendant of the maximum statutory sentence, it did not tell defendant that the mandatory minimum sentence was "any term of years" or that he could not be placed on probation. Thus, we are constrained to reverse and remand, even though defendant unequivocally was told that he was to receive a prison term as part of his sentence bargain.
Reversed and remanded for further proceedings.
In this case a jury trial commenced on June 8, 1981, and continued through June 12, 1981. On that date, both defendant and a codefendant pled guilty as charged to armed robbery. A sentence bargain was confirmed by the court of 5 to 20 years imprisonment. In his appellate brief, the prosecutor relied on this Court's opinion in People v Greene, 116 Mich. App. 205; 323 N.W.2d 337 (1982), but after that brief was written the Supreme Court reversed, People v Greene, 414 Mich. 896 (1982), in which the Supreme Court noted that as to advice of a mandatory minimum sentence:
"The existence of a sentence bargain does not negate the requirement that this advice be given."
We noted in People v Shively, 116 Mich. App. 323, 326; 323 N.W.2d 383 (1982), that this exaltation of form over substance results in an injustice to the people. We urged the Supreme Court to reconsider the rule announced in People v Rogers, 412 Mich. 669; 316 N.W.2d 701 (1982), and I take this opportunity to reiterate that even diligent, learned, and experienced trial judges make mistakes and probably will continue to do so. Cf. People v Belknap, 109 Mich. App. 406, 408, fn 1; 311 N.W.2d 369 (1981), rev'd 413 Mich. 900 (1982).
For similar observations, see my concurrence in the case of People v Harrison, 117 Mich. App. 472; 324 N.W.2d 57 (1982).