Opinion
Docket No. 62079.
Decided October 25, 1983.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Robert E. Weiss, Prosecuting Attorney, Donald A. Kuebler, Chief, Appellate Division, and Edwin R. Brown, Assistant Prosecuting Attorney, for the people. Parker Buckley (by Patric A. Parker), for defendant on appeal.
Before: DANHOF, C.J., and M.J. KELLY and BEASLEY, JJ.
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. After being sentenced to life imprisonment, defendant appeals as of right, raising three issues.
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 N.W.2d 398 (1971), rev'd on other grounds 387 Mich. 701; 199 N.W.2d 458 (1972).
First, defendant maintains that the trial court failed to comply with GCR 1963, 785.7(1)(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 Cases and People v Daniels, 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.
395 Mich. 96, 119; 235 N.W.2d 132 (1975), cert den 429 U.S. 1108; 97 S Ct 1142; 51 L Ed 2d 561 (1977).
69 Mich. App. 345, 350-351; 244 N.W.2d 472 (1976).
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.
See, among others, People v Freeman, 73 Mich. App. 568, 570; 252 N.W.2d 518 (1977); People v Landis, 91 Mich. App. 345, 346; 283 N.W.2d 647 (1979); People v Luke, 115 Mich. App. 223, 224; 320 N.W.2d 350 (1982).
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.
People v Luke, supra, p 225.
"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 N.W.2d 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 750.520f; 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 GCR 1963, 785.7(1)(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.
I remain convinced for reasons articulated in previous cases that the phrase "any term of years" imposes a mandatory minimum sentence of a year and a day. See People v Thompson, 120 Mich. App. 361; 327 N.W.2d 479 (1982); People v West, 113 Mich. App. 1; 317 N.W.2d 261 (1982); People v Harper, 83 Mich. App. 390; 269 N.W.2d 470 (1978), lv den 406 Mich. 1021 (1979). Defendant in this case was charged with assault with intent to rob while armed which is "punishable by imprisonment in the state prison for life, or for any term of years". MCL 750.89; MSA 28.284. Thus, if I were to rely only on that statute in deciding the instant case, I would find that the trial court erred under GCR 1963, 785.7(1)(d) by informing the defendant that the crime to which he pled carried "life or any term of years but does not have a minimum sentence requirement" (emphasis added).
We must, however, construe the penal statute of assault with intent to rob while armed together with Michigan's probation statute, MCL 771.1; MSA 28.1131. The probation statute provides that, with certain enumerated exceptions, felony convictions are probationable if the sentencing court is satisfied that defendant is not likely to again engage in criminal conduct and that the public good does not require defendant's incarceration. The enumerated felonies which remain nonprobationable are "murder, treason, criminal sexual conduct in the first or third degree, robbery while armed" and certain major controlled substance offenses. Since defendant in this case pled guilty to a probationable felony, the trial court could have sentenced him to a term of probation. The instant case is thus distinguishable from People v Thompson, supra, and People v West, supra, where both defendants pled guilty to armed robbery, and People v Harper, supra, where defendant pled nolo contendere to first-degree criminal sexual conduct and armed robbery.
I note that at the time People v Harper was decided, first-degree criminal sexual conduct was a probationable offense and thus, under my analysis today, did not carry a mandatory minimum sentence.
We are now confronted with the dilemma of having to apply two statutes which, taken separately, mandate directly conflicting results. Where a defendant is convicted of assault with intent to rob while armed, MCL 750.89; MSA 28.284 provides for a mandatory minimum sentence of a year and a day while MCL 771.1; MSA 28.1131 allows the court to impose a sentence of probation.
I attribute this conflict to the enactment of two comprehensive criminal codes separated by a period of 80 years. It is clear to me that when the Michigan Penal Code was first enacted in 1846, the Legislature intended to impose a mandatory minimum sentence on all of the most serious crimes and did so by making them punishable by imprisonment for a term of any number of years. The probation statute was enacted 80 years later and evidences of intent on the part of the Legislature to undercut many of the mandatory minimum sentences imposed by way of the old penal code. This rather significant expansion of the sentencing court's discretion is certainly in keeping with the modern but now beseiged view that sentencing should be tailored to the particular circumstances of each case. See People v Chapa, 407 Mich. 309, 311; 284 N.W.2d 340 (1979), citing People v McFarlin, 389 Mich. 557, 574; 208 N.W.2d 504 (1973).
See Judge BRONSON'S concurring opinion in People v West, supra, p 6, fn 1.
Inasmuch as we are required to harmonize wherever possible conflicting provisions of the Penal Code and the Code of Criminal Procedure, People v West, supra, p 8; People v Reuther, 107 Mich. App. 349, 357; 309 N.W.2d 256 (1981), I conclude that the year and a day rule as applied in People v Thompson, supra, People v West, supra, and People v Harper, supra, applies only to those nonprobationable offenses specifically enumerated in MCL 771.1; MSA 28.1131. I join, however futilely, in Judge BRONSON'S call for legislative or judicial resolution of the current debate in this Court regarding mandatory minimum sentencing. People v West, supra, p 10.
For the reasons stated, I concur that error did not result under GCR 1963, 785.7(1)(d) when the sentencing court in this case failed to inform defendant of a mandatory minimum sentence.