Opinion
Docket No. 58454.
Decided June 22, 1982.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, Robert C. Williams, Chief Appellate Counsel, and Richard H. Browne, Assistant Prosecuting Attorney, for the people.
Keller Avadenka, P.C., for defendant.
Before: M.J. KELLY, P.J., and T.M. BURNS and MacKENZIE, JJ.
Defendant, Verna Brown, pled guilty to kidnapping, MCL 750.349; MSA 28.581, and possession of a firearm in the commission of a felony, MCL 750.227b; MSA 28.424 (2). She was sentenced to a term of 3 to 15 years for the kidnapping and 2 years for the possession of a firearm. The felony-firearm conviction was to run consecutively. Defendant appeals, claiming that the trial court failed to comply with GCR 1963, 785.7 (1)(d) by not informing her during the plea proceedings that the sentence on the felony-firearm conviction would run consecutively.
Currently, there is a split in this Court concerning the issue of whether a trial judge must inform a defendant that the felony-firearm sentence will run consecutively. In People v Boswell, 95 Mich. App. 405; 291 N.W.2d 57 (1980), the trial court failed to inform defendant that the sentence on his felony-firearm plea would run consecutively with his armed robbery plea. On appeal, defendant argued that GCR 1963, 785.7 (1)(d) had been violated. This Court noted that the trial court complied with GCR 1963, 785.7 if it informed defendant of the mandatory minimum sentence. 95 Mich. App. 405, 410. The Court stated that defendant need not be advised of the possibility of consecutive sentences. Id., 410. This Court concluded that a trial court did not violate GCR 1963, 785.7 (1)(d) when it failed to tell a defendant that the felony-firearm sentence would run consecutively.
Another panel of this Court has reached a different conclusion in People v Mitchell, 102 Mich. App. 554; 302 N.W.2d 230 (1980), rev'd on other grounds 412 Mich. 853 (1981). In Mitchell, defendant was advised that the felony-firearm conviction would expose him to a mandatory minimum of "up to two years" which would run concurrently to the sentence imposed for the second-degree murder charge. This Court reversed defendant's conviction because the trial court violated GCR 1963, 785.7 (1)(d) when it misinformed defendant that the felony-firearm conviction carried a mandatory minimum sentence of "up to two years" which would run concurrently with the other sentence. 102 Mich. App. 554, 556. The Court went on to hold that the trial court was required to inform defendant that the felony-firearm sentence was to run consecutively. Id., 557.
After reviewing the above authority, we are convinced that the reasoning used in Boswell is more persuasive. A trial court does not have to inform a defendant of all the sentencing consequences of his plea. It need only inform defendant of the maximum and mandatory minimum sentences which will result from his plea. Guilty Plea Cases, 395 Mich. 96, 118; 235 N.W.2d 132 (1975), cert den sub nom Sanders v Michigan, 429 U.S. 1108 (1977). The judge complies with this rule when he informs defendant that the felony-firearm sentence is a mandatory two years imprisonment. Furthermore, GCR 1963, 785.7 (1) does not require a trial court to inform defendant that a sentence will run consecutively. The Supreme Court has recently proposed a change to GCR 1963, 785.7 (1)(b) which would require the trial court to inform defendant of any possibility of consecutive sentences. 411 Mich. 1102. In light of this proposed rule, we cannot say that the trial court violated GCR 1963, 785.7 (1) when it failed to tell defendant that her mandatory two-year sentence for the felony-fire-arm conviction would run consecutively with her kidnapping sentence.
Defendant's convictions are affirmed.
MacKENZIE, J., concurred.
Respectfully, I dissent because I believe that People v Mitchell, 102 Mich. App. 554, 557; 302 N.W.2d 230 (1980), rev'd on other grounds 412 Mich. 853 (1981), correctly states the law:
"[W]here consecutive and/or mandatory sentencing is ordered by statute, the defendant must be informed of that fact so that he has full knowledge of the true minimum time he will serve by pleading guilty."
The underlying purpose behind GCR 1963, 785.7 is to ensure that a criminal defendant who wishes to plead guilty "does so voluntarily with full knowledge and understanding of his actions". People v Willsie, 96 Mich. App. 350, 353; 292 N.W.2d 145 (1980). A criminal defendant pleading guilty is very often more concerned with the actual sentence he will receive than with any other consideration. Informing a defendant that the felony-fire-arm conviction will expose him to a mandatory minimum sentence consecutive to the other charge fits within the underlying purpose of GCR 1963, 785.7. Therefore, I believe that the trial judge must so inform the criminal defendant. See People v Woeltje, 112 Mich. App. 699; 317 N.W.2d 230 (1982) (T.M. BURNS, J., dissenting).
I do understand that the Supreme Court has recently proposed a change to GCR 1963, 785.7 (1)(b) which would require the trial court to inform the defendant that the sentences are to run consecutively. 411 Mich. 1102. But I do not believe that this proposed change means that the law is presently otherwise. The Supreme Court has proposed this rule change to clarify the law. Because of the present split in authority on this issue, this rule is highly desirable. Therefore, I do not believe that this proposed rule change determines this issue one way or the other.
I would reverse.