People v. Hunt

249 N.W.2d 341, 72 Mich. App. 168, 1976 Mich. App. LEXIS 1078

Opinions

V. J. Brennan, J.

Defendant, John D. Hunt, Jr., was originally charged with assault with intent to rape in contravention of MCLA 750.85; MSA 28.280. On February 3, 1975, he entered a plea of guilty to the added count of felonious assault. MCLA 750.82; MSA 28.277. Defendant was sentenced on February 25, 1975, to 3 years probation with the last 6 months to be spent in the Detroit House of Correction unless that part of the sentence was remitted before that time. Defendant appeals as of right.

The defendant contends on appeal that the trial court erred by failing to have the defendant, his counsel, and the prosecutor affirmatively acknowledge on the record the plea agreement as required by GCR 1963, 785.7(2). We disagree. Where defendant challenges whether a proper record in acknowledgement of plea bargaining was made under GCR 1963, 785.7(2), which would compel a remand when such procedure is not followed, he must provide us record evidence to believe a plea bargain actually existed. A record which simply shows defendant pled guilty to a lesser included offense is not sufficient for us to infer a bargain. As a rule, we will not trigger a procedure properly intended to protect a defendant who plea bargains where any reasonable alternative interpretation of the record appears to us to indicate other than plea bargaining. Other possibilities reasonably exist here and so we do not believe GCR 785.7(2) is applicable to this plea-taking record.¹

Defendant next argues that the trial court erred reversibly by its failure to comply with GCR 1963, 785.7(l)(c), which requires the trial court to inform the defendant that if he is on probation or parole, the entry of his plea in the present action admits violation of probation or parole, and may subject him to a sentence and imprisonment for the offense under which he was paroled or placed on probation.

Admittedly, where a defendant can show that the trial court failed to comply with GCR 1963, 785.7(l)(c), reversal is required. However, in the case at bar, defendant does not allege or contend that he was in fact on probation or parole.

In short, we feel that where a defendant seeks reversal of a plea-based conviction on the grounds of the trial court’s noncompliance with GCR 1963, 785.7(l)(c), he must specifically allege that he was on probation or parole and that he was subjected to confinement for violation of parole or probation because of his guilty plea conviction. Defendant’s second allegation of error is without merit.

Affirmed.

Bashara, P. J., concurred.

1 A guilty plea on lesser offenses may demonstrate nothing more than that the prosecutor felt his case on the greater offense was not factually supported and so chose to pursue a lesser count.