People v. Gray , 125 Mich. App. 482 ( 1983 )

125 Mich. App. 482 (1983) 336 N.W.2d 491

PEOPLE
v.
GRAY

Docket No. 60780.

Michigan Court of Appeals.

Decided May 4, 1983.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Robert E. Weiss, Prosecuting Attorney, Donald A. Kuebler, Chief, Appellate Division, and Janice K. Rundles, Assistant Prosecuting Attorney, for the people.

Dolores M. Coulter, for defendant on appeal.

Before: BRONSON, P.J., and T.M. BURNS and ALLEN, JJ.

PER CURIAM.

On June 29, 1981, defendant pled guilty to breaking and entering an occupied dwelling, MCL 750.110; MSA 28.305, and was subsequently sentenced to a term of from 7-1/2 to 15 years imprisonment. He appeals as of right.

Defendant first argues that he was given erroneous information at the plea-taking proceeding. After the trial judge elicited the factual basis, defendant's counsel stated to defendant:

"I think perhaps you should understand if you take the stand, you waive your protection against self-incrimination. In other words, you can be cross-examined and any previous record could be brought out against you if you decide to testify, don't you?

"Defendant Gray: Yes."

As it turns out, defendant's only prior convictions were juvenile convictions which the prosecutor now concedes could not have been used against defendant. MRE 609(d).

A defendant's plea will be set aside if the trial judge has misstated the law during the plea-taking. People v Mitchell, 412 Mich. 853; 312 NW2d 152 (1981); People v Maurice Jones, 37 Mich. App. 283; 194 NW2d 534 (1971). However, for policy reasons, we cannot always automatically set aside a defendant's guilty plea whenever defense counsel has given erroneous advice on the record. An overzealous counsel could find such a rule too tempting and therefore misstate the law on the record to give his client "appellate insurance" just in case the client later changes his mind about pleading guilty.

In People v Poindexter, 44 Mich. App. 325, 327; 205 NW2d 235 (1973), lv den 408 Mich. 948 (1980), the defense counsel erroneously told his client on the record that he could receive probation even though he was pleading guilty to second-degree murder. This Court ruled:

"In this case, however, we cannot believe defendant was prejudiced by the apparent misinformation. He was charged with serious crimes of violence, and was pleading guilty to lesser, but nevertheless serious, charges. We cannot believe that defendant's decision to plead guilty to these lesser offenses was motivated or, even influenced, by a belief that there was a possibility that he would be put on probation."

Poindexter, however, was decided prior to the adoption of GCR 1963, 785.7. Although its result and reasoning are very persuasive when applied to its own facts, they do not apply as well in the present case. Defendant herein pled guilty to breaking and entering in exchange for the prosecutor's dismissing another breaking and entering charge against him. However, he just possibly may have decided to go to trial if he had known that his juvenile conviction could not be used against him. The record, as it stands, does not tell us if he would have or not.

In reality, this is an ineffective assistance of counsel argument. As such, it is not properly before this Court. We do not know why defendant pled guilty. If defendant believed what his counsel said and would not otherwise have pled guilty, he should have attempted to withdraw his guilty plea pursuant to GCR 1963, 785.7(6). Since he has not, the issue is not properly before this Court. Moreover, defendant has failed to establish the factual background necessary to decide such an ineffective assistance of counsel argument. We do not know what part this erroneous "advice" played in defendant's decision to plead. Even if we were inclined to decide the issue despite the absence of a motion to withdraw the guilty plea, we could not because defendant has failed either to move in the trial court for an evidentiary hearing to show ineffective assistance of counsel or to move in this Court to have the matter remanded to the trial court pursuant to People v Ginther, 390 Mich. 436; 212 NW2d 922 (1973). See People v Lawson, 124 Mich. App. 371; 335 NW2d 43 (1983).

Defendant also argues that he is entitled to a resentencing, claiming that the trial judge erred in considering, for the purpose of determining the sentence, prior juvenile charges which did not result in convictions. However, not only may prior juvenile dispositions be mentioned in a presentence report, People v McFarlin, 389 Mich. 557; 208 NW2d 504; 64 ALR3d 1274 (1973), but also charges which did not result in convictions may be mentioned. People v Martin, 393 Mich. 145; 224 NW2d 36 (1974); People v McIntosh, 62 Mich. App. 422; 234 NW2d 157 (1975), rev'd on other grounds 400 Mich. 1; 252 NW2d 779 (1977).

Such information may be used so long as it is accurate. People v Gunter, 76 Mich. App. 483; 257 NW2d 133 (1977). When a defendant claims that a presentence report contains an error, the trial judge may hold an evidentiary hearing to determine the report's accuracy, may accept the defendant's unsworn statement, or may ignore the alleged misinformation while sentencing. People v Casanas, 120 Mich. App. 614; 327 NW2d 534 (1982). He may not ignore the allegation. People v Baker #2, 103 Mich. App. 704; 304 NW2d 262 (1981), held in abeyance 412 Mich. 859 (1981). He must clearly indicate that he is not considering the alleged inaccuracy. People v Brown, 104 Mich. App. 803; 306 NW2d 358 (1981), rev'd on other grounds 412 Mich. 913; 317 NW2d 189 (1982).

In the present case, however, defendant did not claim that any information was inaccurate, though he did state that he did not remember the March 24, 1978, petition for larceny in a building. He also first stated that he did not remember the April 25, 1976, petition for larceny in a building, but later said "I think that was some kind of misunderstanding". We do not view these as objections to the report's accuracy. In fact, earlier the following exchange occurred:

"The Court: Are there any corrections or objections that you have as to the report?

"Mr. Darrah: My client informs me that his father was never sentenced for a B & E. He further says that he did not fail his courses. And he also says that he did better in math than anything else.

"The Court: All right.

"Any other corrections or objections that you have, Mr. Gray?

"The Defendant: No, sir."

We note that the trial judge did sufficiently respond to these particular allegations.

Affirmed.