People v. Thalacker , 99 Mich. App. 372 ( 1980 )

99 Mich. App. 372 (1980) 297 N.W.2d 670

PEOPLE
v.
THALACKER

Docket No. 46843.

Michigan Court of Appeals.

Decided August 12, 1980.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, and A. George Best, II, Assistant Prosecuting Attorney, for the people.

Lawrence B. MacDonald, for defendant on appeal.

Before: D.E. HOLBROOK, JR., P.J., and R.M. MAHER and CYNAR, JJ.

R.M. MAHER, J.

The defendant appeals as of right from his plea-based conviction for armed robbery, MCL 750.529; MSA 28.797. The defendant was sentenced to a term of 8 to 13 years in prison.

On appeal, the defendant contends that the trial court failed to comply with the requirement of GCR 1963, 785.7. More specifically, defendant alleges that the trial court did not advise the defendant that the offense to which he was entering a plea was nonprobationable, as required by GCR 1963, 785.7(1)(f). The transcript of the guilty plea reveals that defendant was told that the maximum sentence for armed robbery was life, but he was not advised that the offense was not probationable nor that he would definitely go to prison.

In People v Freeman, 73 Mich App 568; 252 NW2d 518 (1977), this Court said that it was error not to advise defendant of his ineligibility for probation. However, because of the sentence bargain in that case, the defendant knew before he pleaded that he would go to prison, and so the Court concluded that the error was harmless. In his concurring opinion in Freeman, Judge T.M. BURNS indicated that had there been no sentencing agreement, reversal would have been mandated by Guilty Plea Cases, 395 Mich 96, 118; 235 NW2d 132 (1975).

In People v Lendzian, 80 Mich App 323; 263 NW2d 360 (1977), the defendant pleaded guilty to armed robbery and was not informed that he could not be placed on probation. He was told the maximum sentence but not the minimum. There was no sentence agreement. Although the Court cited People v Freeman, supra, it concluded with little reasoning that despite the absence of a sentencing agreement, there was no reversible error. In a more recent case, People v Earl Jones, 94 Mich App 232; 288 NW2d 385 (1979), the defendant entered a plea of second-degree murder and was not told that this was a nonprobationary offense. Defendant was informed of a possible maximum life sentence. The Court declined to reverse the conviction, citing People v Lendzian, supra, and said the error was harmless for the following reasons: the defendant was told and understood that there was a maximum life sentence; as a previous felony offender, he was familiar with the criminal justice system; defendant was in violation of his parole and was apprised of the possible consequences therefor; and finally, defendant was charged with a grievous crime and had no expectation of being placed on probation.

We are forced to conclude that both Lendzian and Jones, supra, were wrongly decided. The clear import of GCR 1963, 785.7(1)(f) is that a defendant must be told that he will serve some time in prison if he chooses to enter a plea. Under Freeman, that requirement is excused where there has been a sentence bargain, for defendant then knows of his prison term prior to entering his plea. Despite the gravity of a defendant's crime or his prior experience with the judicial system, we cannot infer from a silent record that defendant knew he would serve time in jail and thus render the court rule nugatory.

Reversed and remanded to the trial court.

D.E. HOLBROOK, JR., P.J., concurred.

CYNAR, J. (concurring in result only).

Although I concur in the result reached by the majority, I feel compelled to comment further on People v Earl Jones, 94 Mich App 232; 288 NW2d 385 (1979), lv den 409 Mich 854 (1980). Defendant Jones had been charged in a three-count information: count I, first-degree murder; count II, assault with intent to commit murder; and count III, possession of a firearm at the time of the commission of a felony. The plea bargain in that case involved dismissal of counts I, II, and III in exchange for defendant's plea of guilty to an added count of second-degree murder. On August 21, 1978, the date defendant tendered his plea, he was advised that he was pleading guilty to a felony with a maximum penalty of life imprisonment. He was further advised that the prosecution would forbear from filing a habitual offender information and that by pleading guilty to second-degree murder defendant would be admitting to being in violation of the terms of his parole on a previous armed robbery conviction and could be punished therefor. Just prior to accepting defendant's plea, the court stated:

"For this record, the court has not agreed upon the possibility of a plea, but as [sic] indicated to the defense counsel prior to this date that the possible sentence would be life imprisonment."

Subsequently, defendant was sentenced to life imprisonment. It is my conviction that People v Earl Jones, supra, was correctly decided.