People v. Shannon, Docket No. 69661

• Decision Date: 07 June 1984
• Docket Number: Docket No. 69661
• Citation: 134 Mich.App. 35,349 N.W.2d 813
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Phillip SHANNON, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 813

349 N.W.2d 813

134 Mich.App. 35

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Phillip SHANNON, Defendant-Appellant.

Docket No. 69661.

Court of Appeals of Michigan.

Submitted Jan. 3, 1984.

Decided April 17, 1984.

Released for Publication June 7, 1984.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Edward J. Grant, Pros. Atty., and Joseph A. Greenleaf, Chief Appellate Asst. Pros. Atty., for the People.

James R. Neuhard, State Appellate Defender by P.E. Bennett, Lansing, for defendant-appellant on appeal.

Before KELLY, P.J., and ALLEN and HOFFIUS ^*, JJ.

PER CURIAM.

On his plea of guilty, defendant was convicted of assaulting an employee of a place of confinement, M.C.L. Sec. 750.197c; M.S.A. Sec. 28.394(3). A plea bargain in the case resulted in the dismissal of two assault charges and dismissal of a fourth felony offender charge. M.C.L. Sec. 769.12; M.S.A. Sec. 28.1084. Defendant appeals as of right.

On appeal, defendant claims that his conviction should be reversed because the trial judge misinformed him of the maximum sentence for the offense to which he was pleading. Defendant was told twice that the maximum sentence for his offense was five years; it is, in fact, four years. See M.C.L. Sec. 750.503; M.S.A. Sec. 28.771. Defendant was told that the sentence would run consecutively to the sentence he was serving at the time of the offense. He was sentenced to a consecutive term of two and one-half to four years in prison.

GCR 1963, 785.7(1)(b) requires a judge accepting a guilty plea to inform the defendant personally of the maximum possible prison sentence for the offense to which the plea is offered. A failure to impart the information concerning the maximum possible sentence generally requires reversal. Guilty Plea Cases, 395 Mich. 96, 118, 235 N.W.2d 132 (1975).

The failure to advise a defendant pleading guilty of the maximum sentence which could be imposed should not be regarded as reversible error per se where there is a sentence bargain and the defendant has been sentenced in accordance with the bargain. People v. Jackson, 417 Mich. 243, 246, 334 N.W.2d 371 (1983).

In this case, the trial judge did not fail to impart information concerning the maximum sentence, but informed the defendant that the maximum possible sentence was higher than it actually was. We do not regard such an error as coming within the per se rule requiring reversal adopted in Guilty Plea Cases, supra. Instead, this issue must be decided by applying the general rule that the nature of the noncompliance with the court rule determines whether reversal is required. See Guilty Plea Cases, supra, 395 Mich. p. 113, 235 N.W.2d 132, where it is stated as follows:

"Noncompliance with a requirement of Rule 785.7 may but does not necessarily require reversal.

"Whether a particular departure from Rule 785.7 justifies or requires reversal or remand for additional proceedings will depend on the nature of the noncompliance."

The foregoing statement from Guilty Plea Cases, supra, has been cited in People v. Rogers, 412 Mich. 669, 671, 316 N.W.2d 701 (1982).

The decision in Jackson, supra, suggests that reversal is not required where no possibility exists that a defendant has been misled to his prejudice.

We believe that the error in informing the defendant that the maximum possible sentence was greater than it actually was does not...