Opinion
Docket No. 77-2308.
Decided November 28, 1978.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Burton Hines, Jr., Prosecuting Attorney (by Keith D. Roberts, Assistant Attorney General, Prosecuting Attorneys Appellate Service), for the people.
Terence R. Flanagan, Assistant State Appellate Defender, for defendant on appeal.
Defendant, Donald R. Sickmiller, was convicted on his plea of nolo contendere of criminal sexual conduct in the second degree, MCL 750.520c; MSA 28.788(3). He was sentenced to a term of 10 to 15 years in prison and appeals.
Defendant first claims that his plea must be set aside because the trial judge failed to advise him that, if his plea was accepted, he might be charged as an habitual offender and the maximum possible sentence increased. GCR 1963, 785.7(1)(c).
The claim is without merit. There is no showing that the defendant in this case has been charged as an habitual offender, People v Jones, 73 Mich. App. 91, 93; 250 N.W.2d 554 (1976), People v Love, 76 Mich. App. 379, 382; 256 N.W.2d 602 (1977). Since GCR 1963, 785.7(1)(c) requires that the trial court advise a defendant who has previously been convicted of a felony that if his plea of guilty is accepted, he may be charged as an habitual offender and his sentence increased, it follows that no plea-based conviction may be used as the final or triggering offense in an habitual offender information unless the required advice was given at the plea-taking proceeding.
Second, defendant claims that remand is required because the trial judge failed to state on the record why a plea of nolo contendere was appropriate in this case. We have carefully reviewed the record of the plea-taking proceeding. Defendant entered his plea pursuant to a plea agreement under which Count I of the information was dismissed and defendant was to have psychiatric evaluation prior to sentencing. The offense involved criminal sexual conduct. We are persuaded that defendant's nolo plea was accepted for adequate reasons and that a remand for supplementation of the record in this case would be a useless formality. See People v Love, 72 Mich. App. 413, 424; 250 N.W.2d 94 (1976).
Defendant's conviction is affirmed.