People v. Price

124 Mich. App. 717 (1983) 335 N.W.2d 134

PEOPLE
v.
PRICE

Docket No. 65749.

Michigan Court of Appeals.

Decided April 6, 1983.

Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Michael LaBeau, Prosecuting Attorney, and James G. Petrangelo, Assistant Prosecuting Attorney, for the people.

Gregory B. Jones, for defendant on appeal.

Before: MacKENZIE, P.J., and BRONSON and HOOD, JJ.

PER CURIAM.

Defendant was charged with two counts of armed robbery, MCL 750.529; MSA 28.797, and possession of a firearm in the commission of a felony, MCL 750.227b; MSA 28.424(2). At his arraignment, defendant pled guilty to an added count of armed robbery after the prosecutor agreed to drop the three original charges. Pursuant to a sentence bargain, the trial court sentenced defendant to 12 to 20 years imprisonment. Defendant appeals as of right, raising three issues.

First, defendant argues that the trial court violated the mandate of GCR 1963, 785.7(1)(d) by failing to inform him of the mandatory minimum prison sentence for armed robbery. See, People v Jones, 410 Mich 407, 411; 301 NW2d 822 (1981). We disagree.

The armed robbery statute provides that a conviction for that crime is punishable by a prison sentence for life or for any term of years. We agree with those decisions in this Court which hold that the language "any term of years" does not mandate a minimum prison term. People v McKnight, 72 Mich App 282; 249 NW2d 392 (1976); People v Freeman, 73 Mich App 568; 252 NW2d 518 (1977); People v Landis, 91 Mich App 345; 283 NW2d 647 (1979); People v Earl Jones, 94 Mich App 232; 288 NW2d 385 (1979), lv den 409 Mich 854 (1980); People v Eberly, 110 Mich App 349; 313 NW2d 123 (1981); People v Luke, 115 Mich App 223; 320 NW2d 350 (1982); People v Scott, 115 Mich App 273; 320 NW2d 242 (1982). We agree with that statutory interpretation despite those decisions in this Court which construe the statutory language as establishing a minimum mandatory sentence of "any term of years", People v Taylor, 112 Mich App 94; 315 NW2d 202 (1981), or a minimum mandatory sentence of a year and a day, People v Harper, 83 Mich App 390; 269 NW2d 470 (1978), lv den 406 Mich 1021 (1979); People v West, 113 Mich App 1; 317 NW2d 261 (1982).

A statute is to be interpreted, if ambiguous, to give effect to the intention of the legislative drafters. Melia v Employment Security Comm, 346 Mich 544, 562; 78 NW2d 273 (1956). Insight to the legislative intent may be extracted from the language of the statute as a whole. Kizer v Livingston County Bd of Comm'rs, 38 Mich App 239, 249-250; 195 NW2d 884 (1972).

The armed robbery statute provides:

"Any person who shall assault another, and shall feloniously rob, steal and take from his person, or in his presence, any money or other property, which may be the subject of larceny, such robber being armed with a dangerous weapon, or any article used or fashioned in a manner to lead the person so assaulted to reasonably believe it to be a dangerous weapon, shall be guilty of a felony, punishable by imprisonment in the state prison for life or for any term of years. If an aggravated assault or serious injury is inflicted by any person while committing an armed robbery as defined in this section, the sentence shall be not less than 2 years' imprisonment in the state prison." MCL 750.529; MSA 28.797.

The last sentence of this statute was added by amendment, 1959 PA 71, effective March 19, 1960. Prior to this amendment, the meaning of the language "any term of years" had been interpreted in People v Burridge, 99 Mich 343; 58 NW 319 (1894), as establishing a minimum sentence of not less than two years. However, an amendment is generally construed as changing the meaning of the statute. Reinelt v Public School Employees Retirement Bd, 87 Mich App 769, 774; 276 NW2d 858, lv den 407 Mich 855 (1979). Thus, we infer that the 1959 Legislature implicitly rejected the Burridge rule. Otherwise, there would have been no need to add the clear language establishing a mandatory minimum sentence of two years for an armed robber who also injures or aggravatedly assaults another during the robbery. We also conclude that logical interpretation of the statute as a whole, including the amendatory language, creates a mandatory minimum sentence only if the convicted robber injures or aggravatedly assaults another during the robbery. Therefore, the Legislature, by leaving the language "any term of years", left the minimum term discretionary for all other convicted armed robbers. While we agree with Judge BRONSON'S analysis in People v West, supra, p 8, that a convicted armed robber must be detained in prison for some term because armed robbery is a nonprobationable offense, we decline to find the language "any term of years" a mandate for a specific minimum sentence.

Defendant's second argument is that his conviction should be reversed because his guilty plea was not knowingly or understandingly made because the trial court failed to inform him of the sentencing consequences of Proposal B, MCL 791.233b; MSA 28.2303(3). Ballot Proposal B, a voter-initiated law, mandates that the minimum prison terms for certain enumerated felonies, including armed robbery, cannot be diminished by parole or allowance for good time, special good time, or special parole. The Supreme Court resolved the split of authority in this Court on this issue in People v Johnson, 413 Mich 487, 490; 320 NW2d 876 (1982). GCR 1963, 785.7 does not require advice as to the consequences of Proposal B.

Defendant's third argument is that a remand for resentencing is required because the trial court failed to give defendant an opportunity to address the court before sentencing was imposed. GCR 1963, 785.8(2). Defendant's attorney did address the court, but the trial court did not ask defendant if he had anything to say or give defendant an opportunity to speak. In People v Berry, 409 Mich 774, 779; 298 NW2d 434 (1980), the Court said that GCR 1963, 785.8(2) and 785.9 require that both defendant and his or her counsel be given an opportunity to address the court before sentence is imposed. Furthermore, even if a sentence bargain is struck, as in this case, defendant must be given the same opportunity to speak before sentencing. Berry, supra, p 780. Because the Court requires strict compliance, Berry, supra, p 781, we vacate defendant's sentence and remand for resentencing.

Conviction affirmed. Sentence vacated and remanded for resentencing.

Judge BRONSON concurs in the result for the reasons stated in his opinion in People v Gray, 121 Mich App 788; 329 NW2d 493 (1982).