People v. Woeltje

112 Mich. App. 699 (1982) 317 N.W.2d 230

PEOPLE
v.
WOELTJE

Docket Nos. 53531, 53532.

Michigan Court of Appeals.

Decided January 11, 1982.

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

Karla Kendall, Assistant State Appellate Defender, for defendant on appeal.

Before: J.H. GILLIS, P.J., and T.M. BURNS and N.J. KAUFMAN, JJ.

PER CURIAM.

On March 7, 1980, defendant pled guilty to charges of breaking and entering an occupied dwelling with intent to commit felonious assault, MCL 750.110; MSA 28.305, felonious assault, MCL 750.82; MSA 28.277, carrying a pistol in a motor vehicle, MCL 750.227; MSA 28.424, and possession of a firearm during the commission of a felony, MCL 750.227b; MSA 28.424(2). He appeals as of right. At the time defendant committed these crimes, he was on escape status from prison, where he had been serving a term of three to five years for a 1978 breaking and entering conviction.

Defendant contends that his pleas were involuntary because the trial court failed to inform him 1) that the mandatory two-year sentence for the felony-firearm conviction must be served consecutively to the other sentences imposed and 2) that all of the sentences must be served consecutively to the 1978 breaking and entering sentence for which defendant was on escape status. We disagree.

The Supreme Court in the Guilty Plea Cases, 395 Mich 96, 118; 235 NW2d 132 (1975), cert den sub nom Sanders v Michigan, 429 US 1108; 97 S Ct 1142; 51 L Ed 2d 561 (1977), held that a trial judge is not required to inform the defendant of all sentence consequences — only the maximum sentence, any mandatory minimum, and, if he is on probation or parole, the possible effect on his status as a probationer or parolee. Several panels of this Court have declined to impose a requirement that defendant be advised of the consecutive nature of the sentences to be imposed. People v Lange, 105 Mich App 263, 268; 306 NW2d 514 (1981), People v Boswell, 95 Mich App 405, 410; 291 NW2d 57 (1980), People v Cummings, 84 Mich App 509, 513; 269 NW2d 658 (1978), People v Bennett, 76 Mich App 264, 267; 256 NW2d 459 (1977), People v Larkins, 59 Mich App 199, 201-202; 229 NW2d 378 (1975), lv den 394 Mich 790 (1975).

Defendant relies on People v Mitchell, 102 Mich App 554; 302 NW2d 230 (1980), wherein we stated that, where consecutive and/or mandatory sentencing is ordered by statute, the defendant must be informed of that fact. However, we find the facts in Mitchell clearly distinguishable from those in the case at bar. In Mitchell, the judge misinformed the defendant that a felony-firearm conviction carries a "mandatory sentence of up to two years", rather than a flat mandatory two-year sentence. The defendant in Mitchell was also incorrectly told that his sentence on the felony-firearm conviction would "run concurrently, that is, together with any sentence imposed on any other charges". We agree that a remand is required where the defendant is materially misinformed about the consecutive sentencing consequences of his guilty plea.

However, in the present case, the trial judge remained silent on the issue rather than misinforming the defendant. Because the trial court is not required to advise the defendant of the consecutive nature of the sentences to be imposed, no error occurred.

We believe it is a better practice for the trial judge to advise the defendant of all the consequences of his plea, including, where applicable, the consecutive nature of the sentences to be imposed. However, such a legal requirement must come from the Supreme Court, either by way of amendment to GCR 1963, 785.7 or by case law. See People v Bennett, supra, 267.

Affirmed.

T.M. BURNS, J. (dissenting).

Respectfully, I dissent.

In People v Mitchell, 102 Mich App 554, 557; 302 NW2d 230 (1980), this Court held, "We hold that, where consecutive and/or mandatory sentencing is ordered by statute, the defendant must be informed of that fact so that he has full knowledge of the true minimum time he will serve by pleading guilty."

In this case, defendant was not informed of the mandatory nature of the felony-firearm sentence nor of the fact that this sentence would be required to be served consecutively to his sentence for the 1978 breaking and entering conviction and his three other guilty plea convictions in this case. Therefore, on the authority of Mitchell, defendant's guilty pleas should be vacated and this cause remanded for further proceedings.

The attempt by the majority to distinguish Mitchell simply is unpersuasive. The factual differences between Mitchell and this case, that the majority finds to be important, were not relied upon by the Mitchell Court nor deemed significant enough to form the basis of its holding. The rule of Mitchell is that where consecutive and/or mandatory sentencing is ordered by statute, a defendant must be informed of that fact. The majority attempts to alter this plain rule into a rule that would provide only that a defendant must not be materially misinformed about the sentencing consequences of his plea. This is not the holding of Mitchell.

I dissent and would vacate defendant's pleas and remand for further proceedings.