People v. Seays , 126 Mich. App. 171 ( 1983 )

126 Mich. App. 171 (1983) 337 N.W.2d 46

PEOPLE
v.
SEAYS

Docket No. 56143.

Michigan Court of Appeals.

Decided June 6, 1983.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Janice M. Joyce Bartee, Assistant Prosecuting Attorney, for the people.

State Appellate Defender (by R. Steven Whalen), for defendant on appeal.

Before: BRONSON, P.J., and CYNAR and J.R. ERNST,^[*] JJ.

BRONSON, P.J.

Defendant pled guilty in the Wayne County Circuit Court to armed robbery, MCL 750.529; MSA 28.797, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). Defendant was sentenced to serve a term of imprisonment of from one year and one day to ten years for the robbery after a consecutive term of two years imprisonment for the felony-firearm violation. Defendant now appeals as of right.

Defendant first contends that he is entitled to a remand for resentencing because the trial court erroneously believed that the minimum prison sentence it could mete out for armed robbery was a year and a day. There is currently a split of authority in this Court on the issue of whether there is any mandatory minimum sentence for armed robbery. See the three opinions in People v West, 113 Mich. App. 1; 317 NW2d 261 (1982), for citations and an explication of reasons. I adhere to my position in West and People v Luke, 115 Mich. App. 223; 320 NW2d 350 (1982), and conclude that the trial court correctly determined that the minimum prison term for armed robbery was one year and one day. As such, it is my opinion that defendant was not sentenced under a mistake of law.

Defendant also asserts that if armed robbery had a mandatory minimum sentence, the trial court's advice that this minimum sentence is "a term of years" was insufficient to comply with GCR 1963, 785.7(1)(d), which requires that defendant be informed of any mandatory minimum prison sentence to which he is subjecting himself by pleading guilty. Judge KELLY'S opinion in People v Harper, 83 Mich. App. 390, 397-398; 269 NW2d 470 (1978), lv den 406 Mich. 1021 (1979), Judge CORKIN'S opinion in People v Earl Jones, 94 Mich. App. 232; 288 NW2d 385 (1979), lv den 409 Mich. 854 (1980), and this Court's opinions in People v Lendzian, 80 Mich. App. 323; 263 NW2d 360 (1977), and People v Taylor, 112 Mich. App. 94; 315 NW2d 202 (1981), all stand for the proposition that, by advising defendant that the minimum sentence for armed robbery is "any term of years", the mandate of GCR 1963, 785.7(1)(d) is satisfied. I believe that this is all that is minimally required. At the same time, I believe that the better practice is to advise the defendant that the mandatory minimum sentence is one year and one day. The following excerpt from defendant's brief on appeal makes a valid point:

"Defendant recognizes that in People v Harper, 83 Mich. App. 390; 269 NW2d 470 (1978), and People v Lendzian, 80 Mich. App. 323; 263 NW2d 360 (1977), panels of the Court of Appeals [have] held that advising a defendant that the mandatory minimum sentence for armed robbery is ``any number of years' is sufficient compliance with the guilty plea court rule. However, given the ambiguity of that advice, as reflected in the conflicting appellate decisions, defendant seriously questions the adequacy of that advice. The better rule would require giving a defendant specific numbers. If the mandatory minimum is a year and a day, the defendant should be so told; there is no reason to be coy by tossing out legalistic jargon which is subject to differing interpretations."

Nonetheless, despite the overall soundness of the argument embodied in this excerpt, we do not deem it an absolute necessity for defendant to be given an actual minimum figure at the time of sentencing. To the extent that telling defendant the mandatory minimum prison sentence for armed robbery is "any term of years" misleads, it does not harm defendant. The phrase "any term of years" literally means at least two years. See People v Burridge, 99 Mich. 343, 345; 58 N.W. 319 (1894). Where a defendant assumes that this literal construction of "any term of years" is meant (and it certainly would be unreasonable for him to assume anything else) but nonetheless is willing to plead guilty, it is impossible to believe that he would not have chosen to plead guilty knowing he might obtain a prison sentence as light as one year and one day. Accordingly, we do not believe the court's advice here warrants vacating defendant's plea-based conviction.

Defendant next argues that the trial court erred in failing to inform defendant of the consequences of Proposal B. MCL 791.233b; MSA 28.2303(3). We disagree. See People v Johnson, 413 Mich. 487; 320 NW2d 876 (1982).

We also reject defendant's contention that convictions for both armed robbery and possession of a firearm during the commission of a felony is violative of constitutional prohibitions against double jeopardy. Wayne County Prosecutor v Recorder's Court Judge, 406 Mich. 374; 280 NW2d 793 (1979), app dis sub nom Brintley v Michigan, 444 U.S. 948; 100 S. Ct. 418; 62 L. Ed. 2d 317 (1979).

Affirmed.

J.R. ERNST, J., concurred in the result only.

CYNAR, J. (concurring).

My position remains unchanged. There is no mandatory minimum sentence for armed robbery. People v Luke, 115 Mich. App. 223; 320 NW2d 350 (1982); People v Eberly, 110 Mich. App. 349; 313 NW2d 123 (1981); People v Earl Jones, 94 Mich. App. 232; 288 NW2d 385 (1979), lv den 409 Mich. 854 (1980). In affirming, I agree with my colleague Judge BRONSON that the court's advice here does not warrant vacating defendant's plea-based conviction.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.