People v. Lindsey, Docket No. 73904

• Decision Date: 01 February 1985
• Docket Number: Docket No. 73904
• Citation: 139 Mich.App. 412,362 N.W.2d 304
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James LINDSEY, Defendant-Appellant. 139 Mich.App. 412, 362 N.W.2d 304
• Court: Court of Appeal of Michigan — District of US

Page 304

362 N.W.2d 304

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

Docket No. 73904.

139 Mich.App. 412, 362 N.W.2d 304

Court of Appeals of Michigan.

Submitted Aug. 22, 1984.

Decided Dec. 4, 1984.

Released for Publication Feb. 1, 1985.

[139 MICHAPP 414] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., John D. O'Hair, Pros. Atty., Edward Reilly Wilson, Chief Appellate Asst. Pros. Atty., and Don W. Atkins, Asst. Prosecuting Atty., for the People.

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

Before SHEPHERD, P.J., and MacKENZIE and NICOLICH, ^* JJ.

PER CURIAM.

Defendant pled no contest to charges of second-degree murder, M.C.L. Sec. 750.317; M.S.A. Sec. 28.549, assault with intent to murder, M.C.L. Sec. 750.83; M.S.A. Sec. 28.278, and felony-firearm, M.C.L. Sec. 750.227b; M.S.A. Sec. 28.424(2). The trial court sentenced him to concurrent prison terms of 30 to 60 years for the murder conviction and 20 to 60 years for the assault conviction, and the mandatory, consecutive two-year term for felony-firearm. Defendant appeals as of right, raising three issues. We affirm.

This matter is before this Court for the second time. In 1980, defendant pled guilty to second-degree murder and felony-firearm, in exchange for dismissal of charges of first-degree murder and assault with intent to commit murder. The trial court sentenced him to a term of life imprisonment. This Court vacated the conviction in an unpublished per curiam opinion (Docket No. 55388, decided March 25, 1982), because defendant [139 MICHAPP 415] had been led to believe that he would be eligible for parole. On remand, the prosecution reinstituted the original charges.

Defendant contends that the 30-year minimum sentence imposed following his nolo contendere plea on remand is improper, since it amounts to a punishment for successfully appealing from the original, plea-based conviction. North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). According to defendant, the 30-year minimum is a greater sentence than the life term first imposed, because the latter sentence left him with a reasonable expectation of eligibility for parole after ten years under the "lifer law". M.C.L. Sec. 791.234(4); M.S.A. Sec. 28.2304(4). This argument lacks merit. This Court's reversal of defendant's original conviction was based on a conclusion that his expectation of parole had no legal basis, owing to the effect of Proposal B. M.C.L. Sec. 791.233; M.S.A. Sec. 28.2303, People v. Cohens (After Remand), 134 Mich.App. 132, 351 N.W.2d 205 (1984); People v. Penn, 102 Mich.App. 731, 302 N.W.2d 298 (1981); but see People v. Waterman, 137 Mich.App. 429, 358 N.W.2d 602 (1984). Since this court vacated defendant's prior conviction, his erroneous expectation of parole was irrelevant to the proceedings on remand. In fact, the sentence on remand now leaves defendant eligible for parole at some point in the future. M.C.L. Sec. 791.234(1); M.S.A. Sec. 28.2304(1).

Moreover, a life term is, by definition, a greater penalty than a minimum term of years. Even if Proposal B did not affect a "lifer's" chances for parole, Waterman, supra, the mere possibility of parole would not render a life term less serious than a term of years. The decision whether to grant parole to such a prisoner is "discretionary with the parole board". M.C.L. Sec. 791.234(5); M.S.A. Sec. 28.2304(5), Shields v. Dep't of Corrections, 128 Mich. [139 MICHAPP 416] App. 380, 340 N.W.2d 95 (1983). The sentencing court can prevent the granting of parole by filing written objections thereto. M.C.L. Sec. 791.234(4). Thus, a "non-lifer" is more easily made eligible for parole than a "lifer". M.C.L. Sec. 791.234(1). Given this statutory scheme, whether a sentence imposed following a successful appeal is greater for purposes of Pearce, supra, is determined by the sentence itself, not by eligibility for parole.

Next, defendant argues that the prosecution could not charge him anew with first-degree murder after this Court vacated his guilty plea. People v. McMiller, 389 Mich. 425, 434, 208 N.W.2d 451 (1973), cert. den. 414 U.S. 1080, 94 S.Ct. 599, 38 L.Ed.2d 486 (1973). We disagree. The rule announced in McMiller, applies only where there was a procedural error in the plea-taking process. People v. Thornton, 403 Mich. 389, 392, 269 N.W.2d 192 (1978); People v. Lippert, 79 Mich.App. 730, 737, 263 N.W.2d 268 (1977), lv. den. 404 Mich. 805 (1978); see also GCR 1963, 785. ¹ There was no such error in defendant's guilty plea proceeding. The trial court is not required to advise the accused of the consequences of Proposal B before accepting a guilty plea. People v. Johnson, 413 Mich. 487, 320 N.W.2d 876 (1982).

Defendant's last claim is that there was an insufficient factual basis for his nolo contendere plea. The trial judge relied on his reading of the preliminary examination transcript. At the examination, the murder victim's son testified that defendant shot him and his mother at close range [139 MICHAPP 417] with a handgun. Defense counsel stipulated to the sufficiency of the evidence adduced at the preliminary examination as a basis for the...