Opinion
Docket No. 56874.
Decided May 12, 1982.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and A. George Best, II, Assistant Prosecuting Attorney, for the people.
Patricia A. Streeter, for defendant.
Defendant was charged with first-degree criminal sexual conduct, MCL 750.520b(1); MSA 28.788(2)(1), robbery armed, MCL 750.529; MSA 28.797, and felony-firearm, MCL 750.227b; MSA 28.424(2). He pled guilty to first-degree criminal sexual conduct, assault with intent to rob being armed, MCL 750.89; MSA 28.284, and felony-firearm. On August 10, 1977, he was sentenced to terms of 16 to 30 years for the criminal sexual conduct conviction, of 12 to 25 years for the assault with intent to rob being armed conviction, and of 2 years for felony-firearm. The assault with intent to rob charge subsequently was vacated. On January 13, 1981, the defendant was resentenced to a term of 12 to 24 years for criminal sexual conduct and to the mandatory 2-year felony-firearm term. Defendant appeals his convictions and sentences.
On appeal, defendant argues that the trial court failed to comply with GCR 1963, 785.7 at the plea-taking proceeding. At the time the defendant committed the offenses in this case, the defendant was a prison escapee. At the time of his escape he was serving a sentence for breaking and entering. MCL 768.7a; MSA 28.1030(1) mandates that the sentence for any offense committed during a period of incarceration or escape run consecutively to the sentence for the offense for which the defendant was incarcerated. Defendant argues that the trial court's failure to advise him that the subsequent sentence would be consecutive to the sentence he already was serving rendered his plea not "understanding", GCR 1963, 785.7(1).
"There is no court rule which explicitly requires the court to inform the defendant at the guilty-plea proceeding that the sentence will be consecutive." People v Mitchell, 102 Mich. App. 554, 556; 302 N.W.2d 230 (1980). In Mitchell, the defendant was sentenced on a second-degree murder conviction and a felony-firearm conviction. The trial judge misstated the law, commenting that the felony-firearm sentence would be concurrent with the murder sentence. MCL 750.227b; MSA 28.424(2) requires the felony-firearm sentence to be served consecutively to that imposed for conviction of the underlying felony. This Court could have remanded on this basis alone. However, the Mitchell Court went on to say: "We hold that, where 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." Mitchell, supra, 557.
Mitchell is distinguishable from the case before us. The trial court in Mitchell had before it both convictions for which sentences were to be set during the same proceeding and plainly misstated the applicable law. The trial court in this case properly stated the law with regard to the convictions before it. We conclude that the broad holding of Mitchell does not apply in this case.
Affirmed.
I must dissent. In my opinion People v Mitchell, 102 Mich. App. 554; 302 N.W.2d 230 (1980), requires that the defendant must be informed when a consecutive sentence is required. As stated in Mitchell, supra, 557:
"The purpose of the mandatory sentencing rule is to apprise the defendant of the minimum time he will serve in prison so that his plea of guilty is given with full knowledge of the consequences."
I would hold that when a consecutive sentence is required by statute the defendant must be informed of that fact.