People v. West

• Decision Date: 31 March 1982
• Docket Number: Docket No. 51481
• Citation: People v. West, 317 N.W.2d 261, 113 Mich.App. 1 (Mich. App. 1982)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Clifford Guy WEST, Defendant-Appellant.
• Court: Court of Appeal of Michigan

Page 261

317 N.W.2d 261

113 Mich.App. 1

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Clifford Guy WEST, Defendant-Appellant.

Docket No. 51481.

Court of Appeals of Michigan.

Submitted Sept. 17, 1981.

Decided Feb. 2, 1982.

Released for Publication March 31, 1982.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Robert L. Kaczmarek, Pros. Atty. and Kay F. Pearson, Asst. Pros. Atty., for the People.

Nora J. Pasman, Asst. State Appellate Defender, Detroit, for defendant-appellant on appeal.

Before DANHOF, C. J., and BRONSON and KELLY, JJ.

KELLY, Judge.

On November 26, 1979, defendant Clifford West pled guilty to one count of armed robbery, M.C.L. Sec. 750.529; M.S.A. Sec. 28.797. He was sentenced to between 5 and 15 years imprisonment on February 1, 1980. Defendant appeals, claiming that the trial court failed to comply with GCR 1963, 785.7(1)(d) when it failed to inform him of the mandatory minimum prison sentence.

GCR 1963, 785.7(1)(d) requires that the trial court inform a defendant of the mandatory minimum prison sentence when accepting a guilty plea from the defendant. GCR 1963, 785.7(1) does not require the judge to inform the defendant of all the sentencing consequences but only the maximum sentence and any mandatory minimum. Guilty Plea Cases, 395 Mich. 96, 118, 235 N.W.2d 132 (1975), cert. den. Sanders v. Michigan, 429 U.S. 1108, 97 S.Ct. 1142, 51 L.Ed.2d 561 (1977). Failure to give the defendant this information requires reversal. Id., 118, 235 N.W.2d 132; People v. Jones, 410 Mich. 407, 412, 301 N.W.2d 822 (1981).

In this case, defendant pled guilty to armed robbery, M.C.L. Sec. 750.529; M.S.A. Sec. 28.797. The statute provides that a defendant found guilty of armed robbery will be punished by imprisonment in the state prison for life or for any term of years. Defendant argues that the provision requiring imprisonment for any term of years is a mandatory minimum sentence and that the trial court's failure to inform defendant of the minimum sentence requires reversal. The prosecutor counters by arguing that M.C.L. Sec. 750.529; M.S.A. Sec. 28.797 does not provide for a mandatory minimum sentence. Far too much has been written by our Court on this matter, and I would much prefer that the harmless error rule be invoked. For the latest expression contrary to Judge Bronson's rationale see People v. Taylor, 112 Mich.App. ---, 315 N.W.2d 302 (1981). I have expressed myself in People v. Harper, 83 Mich.App. 390, 399, 269 N.W.2d 470 (1978), lv. den. 406 Mich. 1021 (1981), by interpreting the phrase "any term of years" as imposing a minimum sentence of a year and a day upon a defendant convicted of armed robbery. But that decision also holds that a trial court complies with the requirements of GCR 1963, 785.7(1)(d) when it informs the defendant that his guilty plea will require imprisonment for life or any term of years. Here, the trial court failed to comply. However, it was sheer inadvertance and ought to be called harmless error. I do not think the Supreme Court has given us that option in Jones, supra, and I therefore reluctantly vote to reverse. I do so expressly finding harmless error under GCR 1963, 529.1, and I find no miscarriage of justice under M.C.L. Sec. 769.26; M.S.A. Sec. 28.1096, but I feel that we are mandated to follow the Supreme Court's opinion in Jones which allows for no mistakes.

Reversed.

BRONSON, Judge (concurring).

I generally concur in Judge Kelly's opinion. However, I write separately to make a few observations of my own.

It is my opinion that a history of legislative and judicial shortsightedness is largely responsible for the current dispute over whether the phrase, "shall be guilty of a felony, punishable by imprisonment in the state prison for life or any term of years" has any real meaning. I believe that when the phrase under consideration was first utilized in the penal provisions of the Revised Statutes of 1846, the Legislature intended it to import a mandatory minimum term of imprisonment. One of the basic doctrines of statutory construction is that a statute is to be construed in such a way that every word is given meaning and no part is rendered nugatory. Melia v. Employment Security Comm., 346 Mich. 544, 562, 78 N.W.2d 273 (1956); Deshler v. Grigg, 90 Mich.App. 49, 53-54, 282 N.W.2d 237 (1979), lv. den. 407 Mich. 875 (1979).

The opinions holding that those penal provisions providing that crimes "punishable by imprisonment in the state prison for life or any term of years" have no mandatory minimum term do not attempt to divine the legislative intent in using the language chosen. Rather, they merely assert that the phrase does not mandate a mandatory minimum sentence without any real analysis of the words in dispute. Inter alia: People v. Freeman, 73 Mich.App. 568, 570, 252 N.W.2d 518 (1977); People v. McKnight, 72 Mich.App. 282, 284, 249 N.W.2d 392 (1976), lv. den. 399 Mich. 848 (1977); People v. Landis, 91 Mich.App. 345, 346, 283 N.W.2d 647 (1979); People v. Jones, 94 Mich.App. 232, 235, 288 N.W.2d 385 (1979), lv. den. 409 Mich. 854 (1980); People v. Blythe, 111 Mich.App. ---, 314 N.W.2d 634 (1981).

It is obvious to me that, if the Legislature did not intend that armed robbery and the other crimes which use the controversial phrase should have mandatory minimum sentences, ¹ it certainly chose an odd way to express this intent. It would have been far more natural for the Legislature to have used a phrase like, "may be punished by imprisonment in the state prison for up to life, in the discretion of the court" to express an intention that these crimes carry no mandatory minimum sentence.

When the original set of state laws were codified in the revised statutes, the first statute adopted provided rules for construing all subsequent acts. 1846 Rev.Stat. ch. 1. By what is now M.C.L. Sec. 8.3b; M.S.A. Sec. 2.212(2), any statute "importing the plural number may be applied and limited to the singular number." Given the original contemporaneous enactment of Michigan's construction statute and penal provisions, it appears to me that all crimes using the phrase here under consideration were intended to have a mandatory minimum term of imprisonment of one year.

In People v. Harper, 83 Mich.App. 390, 397-398, 269 N.W.2d 470 (1978), lv. den. 406 Mich. 1021 (1979), Judge Kelly stated that the mandatory minimum prison sentence for crimes using the "life or any term of years" language meant one year and one day. I disagree with Judge Kelly's conclusion only to the extent that it implies that the additional day must be given in all circumstances. Relying on M.C.L. Sec. 769.28; M.S.A. Sec. 28.1097(1) and M.C.L. Sec. 761.1(g); M.S.A. Sec. 28.843(g), Judge Kelly indicated that because felony is defined as a crime punishable by more than one year in the state prison and because there can be no mandatory minimum prison sentence of one year or less, the mandatory minimum sentence must be one year and one day. In 1953, M.C.L. Sec. 769.28; M.S.A. Sec. 28.1097(1) was added to the Code of Criminal Procedure. This section provides that "notwithstanding any provision of law to the contrary", any term of imprisonment of one year or less shall be served in the county jail. In my opinion, rather than changing the mandatory minimum of crimes importing the "punishable by imprisonment in the state prison for life or any term of years" language, M.C.L. Sec. 769.28; M.S.A. Sec. 28.1097(1) overrides the "punishable by imprisonment in the state prison" portion of this phrase as a provision of law to the contrary. Thus, someone convicted of armed robbery may receive a minimum sentence of one year to be served in county jail or, alternatively, one year and one day in the state prison. However, since GCR 1963, 785.7(1)(d), requires the court to impart to defendant the mandatory minimum prison sentence, I think Judge Kelly's position in Harper is correct insofar as guilty plea requirements are concerned. ²

I believe that pertinent provisions of the Penal Code and Code of Criminal Procedure must be construed together so as to be harmonized as a unified whole. As I stated in my partial concurrence in People v. Reuther, 107 Mich.App. 349, 357, 309 N.W.2d 256 (1981), the two codes are in pari materia.

The probation statute, M.C.L. Sec. 771.1; M.S.A. Sec. 28.1131, which is part of the Code of Criminal Procedure, makes little sense if armed robbery and second-degree murder--which are both offenses whose punishment is specified by reference to the "life or any term of years language"--has no mandatory minimum term. I find it impossible to believe that the Legislature intended for second-degree murder and armed robbery to be nonprobationable yet, at the same time, provided for no mandatory term of detention. At least in respect to armed robbery and second-degree murder, there obviously must be, and is, some mandatory minimum period of detention since both crimes are nonprobationable. Even if this mandatory term is not one year, the probation statute by implication undoubtedly requires some period of detention where armed robbery or second-degree murder is involved. Thus, Freeman, supra, is susceptible to criticism on this basis alone.

I turn now to the one Michigan Supreme Court decision directly construing the phrase "any term of years". In People v. Burridge, 99 Mich. 343, 345, 58 N.W. 319 (1894), the Court held that this phrase meant two years. In light of the construction statute discussed above, Burridge never made much sense. It has been said to be "discredited" due to subsequent Supreme Court statements in Guilty Plea Cases, 395 Mich. 96, 118, 235 N.W.2d 132 (1975), and People v. Jones, 410 Mich. 407, 301 N.W.2d 822 (1981). ³ I disagree that either decision constitutes an implied overruling of Burridge. In neither case was the Court required to resolve the issue of whether armed robbery has a mandatory minimum sentence to reach the result obtained therein. ...