People v. Gray

• Decision Date: 06 July 1983
• Docket Number: Docket No. 60780
• Citation: 336 N.W.2d 491,125 Mich.App. 482
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles Andre GRAY, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 491

336 N.W.2d 491

125 Mich.App. 482

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles Andre GRAY, Defendant-Appellant.

Docket No. 60780.

Court of Appeals of Michigan.

Submitted Dec. 10, 1982.

Decided May 4, 1983.

Released for Publication July 6, 1983.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Robert E. Weiss, Pros. Atty., Donald A. Kuebler, Chief Asst. Pros. Atty., and Janice K. Rundles, Asst. Pros. Atty., for the People.

Dolores M. Coulter, Flint, for defendant-appellant.

Before BRONSON, P.J., and T.M. BURNS and ALLEN, JJ.

PER CURIAM.

On June 29, 1981, defendant pled guilty to breaking and entering an occupied dwelling, M.C.L. Sec. 750.110; M.S.A. Sec. 28.305, and was subsequently sentenced to a term of from 7 1/2 to 15 years imprisonment. He appeals as of right.

Defendant first argues that he was given erroneous information at the plea-taking proceeding. After the trial judge elicited the factual basis, defendant's counsel stated to defendant:

"I think perhaps you should understand if you take the stand, you waive your protection against self-incrimination. In other words, you can be cross-examined and any previous record could be brought out against you if you decide to testify, don't you?

"DEFENDANT GRAY: Yes."

As it turns out, defendant's only prior convictions were juvenile convictions which the prosecutor now concedes could not have been used against defendant. MRE 609(d).

A defendant's plea will be set aside if the trial judge has misstated the law during the plea-taking. People v. Mitchell, 412 Mich. 853, 312 N.W.2d 152 (1981); People v. Maurice Jones, 37 Mich.App. 283, 194 N.W.2d 534 (1971). However, for policy reasons, we cannot always automatically set aside a defendant's guilty plea whenever defense counsel has given erroneous advice on the record. An overzealous counsel could find such a rule too tempting and therefore misstate the law on the record to give his client "appellate insurance" just in case the client later changes his mind about pleading guilty.

In People v. Poindexter, 44 Mich.App. 325, 327, 205 N.W.2d 235 (1973), lv. den. 408 Mich. 948 (1980), the defense counsel erroneously told his client on the record that he could receive probation even though he was pleading guilty to second-degree murder. This Court ruled:

"In this case, however, we cannot believe defendant was prejudiced by the apparent misinformation. He was charged with serious crimes of violence, and was pleading guilty to lesser, but nevertheless serious, charges. We cannot believe that defendant's decision to plead guilty to these lesser offenses was motivated or even influenced, by a belief that there was a possibility that he would be put on probation."

Poindexter, however, was decided prior to the adoption of GCR 1963, 785.7. Although its result and reasoning are very persuasive when applied to its own facts, they do not apply as well in the present case. Defendant herein pled guilty to breaking and entering in exchange for the prosecutor's dismissing another breaking and entering charge against him. However, he just possibly may have decided to go to trial if he had known that his juvenile conviction could not be used against him. The record, as it stands, does not tell us if he would have or not.

In reality, this is an ineffective assistance of counsel argument. As such, it is not properly before this Court. We do not know why defendant pled guilty. If defendant believed what his counsel said and would not otherwise have pled guilty, he should have attempted to withdraw his guilty plea pursuant to GCR 1963, 785.7(6). Since he has not, the issue is not properly before this Court. Moreover, defendant has failed to establish the factual background necessary to decide such an ineffective assistance of counsel argument. We do not know what part this erroneous "advice" played in defendant's decision to plead. Even if we were inclined to decide the issue despite the absence of a motion to withdraw the guilty plea, we could not because defendant has failed either to move in the trial court for an evidentiary hearing to show ineffective assistance of counsel or to move in this Court to have the matter remanded to the trial court pursuant to People v. Ginther, 390 Mich. 436, 212 N.W.2d 922 (1973). See People v. Lawson, 124 Mich.App. ---, 335 N.W.2d 43 (1983).

Defendant also argues that he is entitled to a resentencing, claiming that the trial judge erred in considering, for the purpose of determining the sentence, prior juvenile charges which did not result in convictions. However, not only may prior juvenile dispositions be mentioned in a presentence report, People v. McFarlin, 389 Mich. 557, 208 N.W.2d 504, 64 A.L.R.3d 1274 (1973), but also charges which did not result in convictions may be mentioned. People v. Martin, 393 Mich. 145, 224 N.W.2d 36 (1974); People v. McIntosh, 62 Mich.App. 422, 234 N.W.2d 157 (1975), rev'd on other grds. 400 Mich. 1, 252 N.W.2d 779 (1977).

Such information may be used so long as it is accurate. People v. Gunter, 76 Mich.App. 483, 257 N.W.2d 133 (1977). When a defendant claims that a presentence report contains an error, the trial judge may hold an evidentiary hearing to determine the report's accuracy, may accept the defendant's unsworn statement, or may ignore the alleged misinformation while sentencing. People v....