People v. Jackson

33 Mich. App. 322 (1971) 189 N.W.2d 812

PEOPLE
v.
JACKSON

Docket No. 10193.

Michigan Court of Appeals.

Decided April 29, 1971.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Arthur N. Bishop, Assistant Prosecuting Attorney, for the people.

Joel M. Shere, for defendant on appeal.

Before: HOLBROOK, P.J., and FITZGERALD and T.M. BURNS, JJ.

PER CURIAM.

Defendant was charged with robbery armed contrary to MCLA § 750.529 (Stat Ann 1971 Cum Supp § 28.797). With the assistance of court-appointed trial counsel defendant tendered a plea of guilty to the included offense of assault with intent to rob being armed, contrary to MCLA § 750.89 (Stat Ann 1962 Rev § 28.284). On August 3, 1970, he was sentenced to a term of 15 to 30 years imprisonment by Judge George W. Crockett, Jr., of the Recorder's Court. With the assistance of court-appointed appellate counsel, a timely claim of appeal has been filed and grounded on two allegations of error. First, it is contended that the lower court erred in failing to advise the defendant of his constitutional right to confront his accusers and of his constitutional privilege not to be compelled to be a witness against himself. Second, it is contended that the lower court erred in advising the defendant that a conviction on the original charge of robbery armed would preclude the possibility of probation. The people have filed a motion to affirm the conviction and sentence.

The defendant cites the case of Boykin v. Alabama (1969), 395 U.S. 238 (89 S. Ct. 1709, 23 L. Ed. 2d 274), in support of his contention that the lower court proceedings are fatally defective, the trial judge having failed to expressly advise him of his constitutional right to confrontation and his privilege against self-incrimination. This Court has previously recognized that the decision in Boykin, supra, does not impose upon the trial judge the affirmative duty to expressly advise the defendant of the two aforementioned rights. People v. Jaworski (1970), 25 Mich. App. 540, leave to appeal granted 384 Mich. 766; People v. Sepulvado (1970), 27 Mich. App. 66; People v. Malcom (1970), 27 Mich. App. 205; People v. McClendon (1970), 28 Mich. App. 483; People v. Miles (1970), 28 Mich. App. 562.

Defendant's second contention is that the lower court erred in advising the defendant that a conviction on the original charge of robbery armed would preclude consideration for probation. Defendant points out that the robbery armed statute eliminates the possibility of probation only in those cases where "aggravated assault or serious injury is inflicted by any person while committing an armed robbery * * *". It is argued that there is no evidence that an aggravated assault or serious injury occurred during the perpetration of this crime, thus, the trial court misled the defendant. This issue is without merit on two grounds. During the trial court's examination of the defendant it was admitted that during the perpetration of the crime, he sustained gunshot wounds inflicted both by the victim and by the arresting police officers. More importantly, the defendant does not now contend that an aggravated assault or serious injury did not occur during the commission of the crime.

The motion to affirm is granted.