People v. Evans, Docket No. 71068

• Decision Date: 16 March 1984
• Docket Number: Docket No. 71068
• Citation: 347 N.W.2d 28,132 Mich.App. 239
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James G. EVANS, Defendant-Appellant. 132 Mich.App. 239, 347 N.W.2d 28
• Court: Court of Appeal of Michigan — District of US

Page 28

347 N.W.2d 28

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James G. EVANS, Defendant-Appellant.

Docket No. 71068.

132 Mich.App. 239, 347 N.W.2d 28

Court of Appeals of Michigan.

Submitted Sept. 12, 1983.

Decided Feb. 8, 1984.

Released for Publication March 16, 1984.

[132 MICHAPP 240] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., L. Brooks Patterson, Pros. Atty., Robert C. Williams, Chief Appellate Asst. Pros. Atty., and Graham K. Crabtree, Asst. Pros. Atty., for plaintiff-appellee.

McDonald & Zipser by John J. McDonald, Farmington Hills, for defendant-appellant on appeal.

Before S.J. BRONSON, P.J., and CYNAR and SHEPHERD, JJ.

PER CURIAM.

Pursuant to a plea bargain agreement[132 MICHAPP 241] in which the prosecutor agreed to dismiss related felonious assault and felony-firearm charges, defendant pled guilty to assault with intent to rob while armed, M.C.L. Sec. 750.89; M.S.A. Sec. 28.284, and possession of a firearm in the commission of a felony, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). He was sentenced to a term of from 13 to 50 years on the principal offense and to a consecutive 2-year term on the felony-firearm count. Defendant appeals as of right, raising three issues.

Defendant first argues that the trial court failed to comply with GCR 1963, 785.7(1)(b) by neglecting to inform defendant of the maximum possible sentence for a conviction of assault to commit armed robbery. The record discloses that the trial judge, at the plea-taking proceeding, asked defendant to tell the court what the maximum possible prison sentence was for each of the two offenses. Defendant replied, "For the assault with intent to rob is life, and the possession of a firearm is two years."

The purpose of GCR 1963, 785.7(1) is to ensure that a defendant's plea is an understanding one. Precise literal compliance with the rule is not always required where a defendant has clearly and of record been apprised of all information mandated by the court rule. See Guilty Plea Cases, 395 Mich. 96, 235 N.W.2d 132 (1975); People v. Mitchell, 125 Mich.App. 475, 336 N.W.2d 31 (1983). While it would have been better had the trial judge verbally confirmed defendant's understanding, we are convinced that the judge correctly determined that defendant was aware of the maximum sentence possible upon his plea of guilty. The purpose of GCR 785.7(1)(b) was satisfied.

Defendant next claims that the trial court's failure to comply with GCR 1963, 785.7(1)(d) constituted[132 MICHAPP 242] reversible error. We disagree. Defendant was adequately apprised of the only mandatory minimum sentence relevant.

GCR 1963, 785.7(1)(d) requires a trial court, before accepting a plea of guilty, to inform a defendant of any mandatory minimum term of imprisonment. In the instant case, the trial judge asked defendant what the mandatory minimum prison terms were and defendant answered, "Two years for the gun, and there is none for the assault, intent to rob." The trial judge did not respond to or clarify this statement. Defendant now claims error in the trial court's failure to inform defendant that the assault charge did carry a minimum term and that it was nonprobationable.

Failure to inform a defendant of a mandatory minimum sentence requires reversal. People v. Jones, 410 Mich. 407, 301 N.W.2d 822 (1981). However, the sentence to be imposed upon conviction for assault with intent to rob while armed is life or "any term of years". The Michigan Supreme Court has recently ruled that this phrase does not imply or include a mandatory minimum sentence. People v. Blythe, 417 Mich. 430, 434, 339 N.W.2d 399 (1983). While...