People v. Johnson

343 N.W.2d 226, 130 Mich. App. 26

Opinions

Per Curiam.

On October 9, 1981, defendant, Joseph Art Johnson, who was originally charged with armed robbery, plead guilty to assault with intent to rob while armed, contrary to MCL 750.89; MSA 28.284.¹ After being sentenced to life imprisonment, defendant appeals as of right, raising three issues.

First, defendant maintains that the trial court failed to comply with GCR 1963, 785.7(l)(e), the court rule requiring a trial court to advise the defendant that he may be sentenced as a probation or parole violator.

In accordance with the proposition set forth in Guilty Plea Cases² and People v Daniels,3 we hold that, since defendant acknowledged on the record that he was not on probation or parole, error was not occasioned by the trial court’s noncompliance with the court rule.

Second, defendant asserts that his plea-based conviction should be vacated because the prosecutor, rather than the trial court, advised defendant of three of the rights embraced in GCR 1963, 785.7(1). At the onset of the plea-taking process, the prosecutor did recite the contents of three of the subrules, but the trial court thereafter personally informed defendant of these rights. Therefore, the trial court satisfied the requirements of GCR 1963, 785.7(1) by speaking directly to defendant and advising him of the litany of rights.

Last, defendant argues that the trial court erred in not imparting to him that the offense to which he pled guilty, assault with intent to rob while armed, carries a mandatory minimum sentence. The plea-taking transcript indicates that the following sentencing information was given regarding the pleaded offense:

"The Court: Has anyone made any promises. except what has been detailed by both your attorney and Mr. Blanchard, that the original charge of armed robbery which could carry life for any number of years but had a minimum of two years in the state penitentiary be reduced to assault with intent to rob while being armed, also a felony which could carry life or any term of years but does not have a minimum sentence requirement? Have there been any other promises made? * * *

"The Court: Now as I’ve noted, this charge of intent to rob and steal while being armed does not carry a minimum sentence. However, if I do sentence you to the state penitentiary, which I could do, it is a Proposal B offense, which means that there would be no good time, no special good time or early parole if you were sent away to the state penitentiary. You understand that?”

The statute proscribing defendant’s conduct, MCL 750.89; MSA 28.284, provides:

"Any person, being armed with a dangerous weapon, or any article used or fashioned in a manner to lead a person so assaulted reasonably to believe it to be a dangerous weapon, who shall assault another with intent to rob and steal shall be guilty of a felony, punishable by imprisonment in the state prison for life, or for any term of years. ” (Emphasis added.)

Currently, there is a division of authority on this court regarding whether a felony "punishable by imprisonment in the state prison for life, or for any term of years” imposes a mandatory minimum sentence. We subscribe to the majority view that this language does not establish a mandatory minimum sentence.⁴

In reaching the conclusion that the offense of armed robbery, which likewise is punishable by a sentence of life imprisonment or any term of years, does not carry a mandatory minimum sentence, this Court reasoned in People v Luke:5

"Our belief that the language 'any term of years’ establishes no mandatory minimum sentence is reinforced by a recent decision of our Supreme Court. In People v Urynowicz, 412 Mich 137, 144; 312 NW2d 625 (1981), defendant pled guilty to first-degree criminal sexual conduct, MCL 750.520b; MSA 28.788(2). On appeal, defendant argued for reversal because the circuit judge did not inform him of the mandatory minimum five-year sentence required by MCL 750.520Í; MSA 28.788(6) for second or subsequent offenders. The Court said:

" 'This defendant was not charged under § 520f. Consequently, there was no mandatory minimum of which advice under OCR 1963, 785.7(l)(d) was required.’

"The penalty for first-degree criminal sexual conduct is imprisonment 'for life or for any term of years’, MCL 750.520b(2); MSA 28.788(2)(2).”

Defendant’s plea based conviction and sentence are affirmed.

1 The essential elements of this specific intent offense are (1) an assault (2) committed with a dangerous weapon or an article used or fashioned to lead the individual assaulted reasonably to believe it to be a dangerous weapon (3) by a defendant possessing the intent to rob and steal. People v Patskan, 29 Mich App 354, 359-360; 185 NW2d 398 (1971), rev’d on other grounds 387 Mich 701; 199 NW2d 458 (1972).

2 395 Mich 96, 119; 235 NW2d 132 (1975), cert den 429 US 1108; 97 S Ct 1142; 51 L Ed 2d 561 (1977).

3 69 Mich App 345, 350-351; 244 NW2d 472 (1976).

4 See, among others, People v Freeman, 73 Mich App 568, 570; 252 NW2d 518 (1977); People v Landis, 91 Mich App 345, 346; 283 NW2d 647 (1979); People v Luke, 115 Mich App 223, 224; 320 NW2d 350 (1982).

5 People v Luke, supra, p 225.