People v. Gren

• Decision Date: 15 August 1986
• Docket Number: Docket No. 86664
• Citation: 391 N.W.2d 508,152 Mich.App. 20
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Steven Edward GREN, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 508

391 N.W.2d 508

152 Mich.App. 20

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Steven Edward GREN, Defendant-Appellant.

Docket No. 86664.

Court of Appeals of Michigan.

Submitted Feb. 20, 1986.

Decided May 20, 1986.

Released for Publication Aug. 15, 1986.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., L. Brooks Patterson, Pros. Atty., Robert C. Williams, Chief, Appellate Div. and Graham K. Crabtree, Asst. Pros. Atty., for People.

Faintuck, Shwedel & Wolfram by William G. Wolfram, Franklin, for defendant-appellant.

Before J.H. GILLIS, P.J., and T.M. BURNS and HOOD, ^* JJ.

PER CURIAM.

On March 14, 1985, defendant pled guilty to delivery of a controlled substance, M.C.L. Sec. 333.7401, subds. (1) and (2)(b); M.S.A. Sec. 14.15(7401), subds. (1) and (2)(b) and to being an habitual offender, third offense, M.C.L. Sec. 769.11; M.S.A. Sec. 28.1083. He was sentenced as an habitual offender to from 2 to 14 years in prison. Defendant appeals from his convictions and sentence as of right. We affirm.

On July 25, 1985, defendant filed a motion to withdraw his guilty plea, arguing that the trial court failed to comply with the requirements of MCR 6.101(F)(1). Specifically, defendant argued that the trial court erred by failing to inform him that it was his option to choose a bench or jury trial. The trial court denied defendant's motion. Defendant raises the same argument on appeal. He emphasizes the court rule language "if the defendant does not want trial by a jury". He claims that the trial court's failure to recite literally such language resulted in a failure to inform him that he had an option to choose between a bench or a jury trial and that the omission of such language constitutes error. We disagree.

MCR 6.101(F)(1)(c) states in part that the court shall tell the defendant that if his guilty plea is accepted, the defendant will not have a trial of any kind, so he gives up the rights he would have at a trial, including the rights: (i) to trial by a jury; and (ii) to trial by the court if the defendant does not want a trial by a jury. In this case, the following colloquy took place:

"THE COURT: Do you understand that you do have a Constitutional Right to have a trial on these charges by a court or by a jury?

"THE DEFENDANT: Yes.

"THE COURT: Do you understand the difference between the two forms of trial?

"THE DEFENDANT: Yes, I do.

"THE COURT: And what is your understanding of that difference?

"THE DEFENDANT: A jury would be twelve people to decide, and the court would be you.

"THE COURT: And the issue to be decided is whether you are innocent or guilty.

"THE DEFENDANT: Yes.

"THE COURT: Do you understand that throughout the entire trial that you are presumed to be innocent of these charges--

"THE DEFENDANT: Yes.

"THE COURT: --and the burden rests on the People, through the Assistant Prosecutor, to prove that you are guilty of these charges beyond a reasonable doubt with competent evidence shown at the trial?

"THE DEFENDANT: Yes.

"THE COURT: Do you understand that at a trial, whether it be by court or by jury, you do have certain rights? Namely: You have the right to have your counsel represent you at all times. You have the right to be confronted by all the witnesses that would be called to testify against you. You have the right to cross-examine those witnesses. You have the right to present your own witnesses to testify for you, and this court would compel their attendance in court to testify at no additional expense to you. You do have the right at the trial to give testimony yourself, and you have the right at the trial to remain silent, from which silence no inferences of guilt can be drawn by either the court or the jury.

So I do ask whether or not you do understand you have all of these rights?

"THE DEFENDANT: Yes, I do."

We hold that the court's questioning in this case was adequate. The right to a trial by the court is but one of the ten rights listed in a subsection of the court rule which is designed to impress on the accused the fact that by his plea of guilty he waives his right to a trial. See Guilty Plea Cases, 395 Mich. 96, 122, 235 N.W.2d 132 (1975). While the language of the court rule has changed since the Court's decision in Guilty Plea Cases, the primary purpose remains the same. On appeal, the issue is whether it appears on the record that the defendant was informed of such constitutional rights and incidents of a trial as reasonably to warrant the conclusion that he understood what a trial is and that by pleading guilty he was knowingly and voluntarily giving up his right to a trial and such rights and incidents. Guilty Plea Cases, supra, at p. 122, 235 N.W.2d 132. The defendant was adequately informed here.

Defendant next argues that the trial court did not state adequate reasons for the sentence imposed.

In People v. Coles, 417 Mich. 523, 550, 339 N.W.2d 440 (1983), the Supreme

Court required that trial courts state on the record which criteria were considered and what reasons support the court's decision regarding the length and nature of the punishment imposed. Included among the proper criteria for determining an appropriate sentence are: (1) the disciplining of the wrongdoer, (2) the protection of society, (3) the potential for reformation of the offender, and (4) the deterring of others from committing like offenses. Coles, supra.

Sentencing in the present case took place on March 21, 1985. On that date, defendant pled guilty to a probation violation. After sentencing in regard to the probation violation, the trial court continued sentencing "[r]elative to the charge of Delivery of a Controlled Substance and being an Habitual Offender Third Offense". The court then stated the reasons supporting its decision and the criteria considered in determining the appropriate sentence for defendant. However, instead of immediately stating that it had determined that a sentence of from 2 to 14 years was appropriate, the court first imposed a sentence of from 1 1/2 to 7 years on the underlying conviction for delivery of a controlled substance. However, the court immediately vacated that sentence and sentenced defendant under the habitual offender statute to from 2 to 14 years.

Defendant argues that the trial court's sentencing reasons were generally inadequate. He alleges that the court's reasons were given only in support of the sentence for the underlying conviction, and, thus, that the trial court erred by failing to state any reasons for imposing the final sentence based on defendant's habitual offender status. Defendant also contends that the minimum sentence should have remained within the recommended range provided by the sentencing guidelines and that only the maximum sentence should have been affected by his habitual offender status.

Defendant's arguments are based in part on several apparent misconceptions regarding sentencing when an habitual offender is involved. We take this opportunity to clear up such misconceptions. First, the sentencing guidelines are not applicable to habitual offenders. Second, if a defendant's habitual offender status is established before sentencing on the underlying crime, then only one sentencing is to take place and only one sentence is to be imposed.

The habitual offender statutes, M.C.L. Sec. 769.10; M.S.A. Sec. 28.1082; M.C.L. Sec. 769.11; M.S.A. Sec. 28.1083; M.C.L. Sec. 769.12; M.S.A. Sec. 28.1084; and M.C.L. Sec. 769.13; M.S.A. Sec. 28.1085, provide for the enhancement of...