308 N.W.2d 176

PEOPLE v SIDNEY SMITH

Docket No. 50618.Michigan Court of Appeals.
Decided March 11, 1981.

Page 311

Frank J. Kelley, Attorney General, Robert A. Derengoski,
Solicitor General, George N. Parris, Prosecuting Attorney, Don L. Milbourn, Chief Appellate Attorney, and Joseph G. Wetzel,
Assistant Prosecuting Attorney, for the people.

Robert A. Binkowski, for defendant.

Before: BRONSON, P.J., and J.H. GILLIS and CYNAR, JJ.

Page 312

PER CURIAM.

On November 16, 1979, defendant pled guilty to larceny in a building contrary to MCL 750.360; MSA 28.592 and of being a second-time felony offender contrary to MCL 769.10; MSA 28.1082. The pleas were given pursuant to a bargain whereby the prosecutor agreed not to charge defendant as a four-time felony offender. MCL 769.12; MSA 28.1084. On December 6, 1979, defendant was sentenced to a straight six-year term of imprisonment. He now appeals as of right.

Defendant first contends that the trial court erred in not carrying out the inquiries mandated by GCR 1963, 785.7 twice: once for the larceny charge and once for the habitual offender charge. We disagree. The purpose of the court rule requiring the trial judge to apprise a defendant of the rights he is giving up by pleading guilty is to ensure that the plea is knowing and voluntary. Guilty Plea Cases, 395 Mich. 96; 235 N.W.2d 132 (1975). We are convinced that this purpose was fulfilled by the plea-taking procedure used in this case.

The trial court first established the factual basis for the larceny charge and then the factual basis for the habitual offender charge. Thereafter, the court carefully complied with GCR 1963, 785.7, specifically asking defendant if he understood that he was waiving his rights in respect to both charges wherever applicable. The method of taking the pleas was straightforward and not in the least bit confusing. It was not necessary for the court to waste its time and that of the attorneys by going through GCR 1963, 785.7 twice.

Defendant relies on People v Stevens, 88 Mich. App. 421; 276 N.W.2d 910 (1979), for the proposition that the procedure utilized here was improper. All we said in Stevens was that before a plea of guilty to an habitual offender charge could be accepted,

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GCR 1963, 785.7 must be complied with. This was done in the instant case. Defendant was fully informed of all the rights he would be giving up should he choose to plead guilty to being a two-time felony offender, as well as the maximum sentence he could receive on the charge. This case is totally unlik Stevens where the defendant was allowed to plead guilty without being informed of the maximum sentence he could receive or of any of the rights he would be giving up by his plea of guilty.

Defendant next argues that the trial court was required to advise him that he had a right to withdraw his plea prior to its acceptance. While it’s true that GCR 1963, 785.7(6)(a) gives a defendant this right, there is no requirement that he be so informed. GCR 1963, 785.7 only requires the court personally to carry out subrules GCR 1963, 785.7(1)-(4) prior to accepting the plea. The Supreme Court, by not including the right to withdraw the guilty plea prior to acceptance in GCR 1963, 785.7, subrules (1)-(4), has impliedly indicated that this is unnecessary.

The prosecution agrees with defendant that this matter must be remanded for resentencing. Effective September 1, 1978, MCL 769.10; MSA 28.1082 was amended to provide that an indeterminate sentence be given pursuant to the penalty enhancement provisions of the statute. We agree with defendant and the prosecution that due to this amendment defendant must be given a new sentence. Upon remand, an indeterminate sentence is to be imposed. The minimum term of this sentence permissibly cannot exceed two-thirds of the maximum term to comply with the rule of People v Tanner, 387 Mich. 683; 199 N.W.2d 202 (1972).

Remanded for proceedings consistent with this opinion.

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