People v. Shively

116 Mich. App. 323 (1982) 323 N.W.2d 383

PEOPLE
v.
SHIVELY

Docket No. 54902.

Michigan Court of Appeals.

Decided May 19, 1982.

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

Susan J. Smith, Assistant State Appellate Defender, for defendant on appeal.

Before: CYNAR, P.J., and M.J. KELLY and D.C. RILEY, JJ.

M.J. KELLY, J.

Defendant, Eric Shively, pled guilty but mentally ill, MCL 768.36(1); MSA 28.1059(1), 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). He was sentenced to 5 to 15 years imprisonment for armed robbery and received the mandatory 2-year sentence for possession of a firearm.

During the plea proceeding, the following bargain was placed on the record. In return for defendant's plea of guilty but mentally ill to armed robbery and possession of a firearm, the prosecution agreed to dismissal of an assault with intent to murder charge. The bargain also included an agreement that defendant would be sentenced to 5 to 15 years imprisonment. The trial court informed defendant that armed robbery carried a potential life sentence but failed to inform him that armed robbery was not probationable. On appeal, defendant argues that his conviction must be reversed because the trial court failed to comply with GCR 1963, 785.7(1)(f), which requires the court to inform defendant that armed robbery is a nonprobationable offense.

Until recently, the opinions of this Court have split on whether reversal of defendant's plea was required when a trial judge failed to comply with GCR 1963, 785.7(1)(f). A number of panels on this Court have refused to reverse a defendant's conviction where he understood the charge and the sentence imposable for the crime or where a sentence agreement was part of the plea bargain. People v Belknap, 109 Mich. App. 406, 409; 311 NW2d 369 (1981), People v Sylvester, 103 Mich. App. 499, 506; 303 NW2d 230 (1981), People v Lendzian, 80 Mich. App. 323, 325; 263 NW2d 360 (1977), People v Freeman, 73 Mich. App. 568, 570; 252 NW2d 518 (1977). However, in People v Thalacker, 99 Mich. App. 372; 297 NW2d 670 (1980), a panel of this Court reversed defendant's conviction because the trial court failed to inform him that armed robbery was a nonprobationable offense.

The Supreme Court, in People v Rogers, 412 Mich. 669; 316 NW2d 701 (1982) recently resolved the split in this Court. In Rogers, defendant pled guilty to second-degree murder, MCL 750.317; MSA 28.549, and felony-firearm, MCL 750.227b; MSA 28.424(2). During the plea proceedings, the trial court failed to inform defendant that he could not be placed on probation. This Court, in an unpublished opinion, reversed defendant's guilty plea because the trial judge failed to comply with GCR 1963, 785.7(1)(f). The prosecutor appealed to the Supreme Court, which affirmed this Court's reversal. The Court stated:

"We have insisted on strict compliance with two other subsections on sentence consequences, Rule 785.7(1), subds (b) and (d). People v Jones, 410 Mich. 407; 301 NW2d 822 (1981). The requirements of Rule 785.7 as to advice on sentence consequences represents our judgment that it is important that the defendant be advised of these sentence consequences before pleading guilty of an offense. We underscored this importance in Jones by imposing the sanction of reversal for noncompliance with (1)(b) and (1)(d); we believe (1)(f) is of the same stature and adopt the same sanction for noncompliance." Id., 672.

In this case, the trial court failed to inform defendant that armed robbery was nonprobationable. This violated GCR 1963, 785.7(1)(f) and requires reversal of defendant's conviction.

Although reversal is required in this case, we take this opportunity to express our concern with the growing tendency to exalt form over substance. In this case, defendant knew he was going to be sentenced to 5 to 15 years imprisonment as part of the plea bargain. Requiring the trial judge to inform defendant that he is not going to receive probation when defendant is already aware of that fact by any reasonable interpretation of the record results in an injustice to the people of this state. We would urge the Supreme Court to reconsider the rule announced in Rogers in cases where the defendant knows prior to pleading guilty that probation is not available.

Reversed.