Opinion
Docket No. 63050.
Decided December 21, 1982. Leave to appeal applied for.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Timothy A. Baughman, Assistant Prosecuting Attorney, for the people.
Gerald S. Surowiec, for defendant on appeal.
Before: D.C. RILEY, P.J., and N.J. KAUFMAN and D.F. WALSH, JJ.
Defendant, Stanley Earl Tucker, was convicted, on his pleas of guilty, of two counts of armed robbery, MCL 750.529; MSA 28.797, and one count of felony-firearm, MCL 750.227b; MSA 28.424(2). Pursuant to an agreement reached during plea negotiations, he was sentenced to concurrent prison terms of five to ten years on the armed robbery convictions and to the mandatory two-year consecutive term on the felony-firearm conviction.
The record contains no indication that defendant was advised that armed robbery is a nonprobationable offense. On the authority of People v Rogers, 412 Mich. 669; 316 N.W.2d 701 (1982), we reverse defendant's convictions for this failure of the plea-taking judge to comply with GCR 1963, 785.7(1)(f). Even the existence of a sentence bargain in this case does not render inapplicable the Supreme Court's imposition of the sanction of automatic reversal for failure of the plea-taking judge to advise defendant that he could not be placed on probation. People v Greene, 414 Mich. 896 (1982), rev'g 116 Mich. App. 205; 323 N.W.2d 337 (1982).
See, also, People v Crawford, 115 Mich. App. 516, 518; 321 N.W.2d 717 (1982), where this Court described the Rogers holding:
"The Court then held that noncompliance with subsection (f) requires reversal and apparently always has." (Emphasis supplied.)
Because defendant was present when, apparently addressing the codefendant, the court stated that, "[A]rmed robbery is a felony punishable by a maximum term of life or any number of years," we are not persuaded that there was fatal noncompliance with GCR 1963, 785.7(1), subds (b) and (d). It is clear that defendant's pleas were understandingly made. Compare People v Jones, 410 Mich. 407; 301 N.W.2d 822 (1981). Also, see People v Taylor, 112 Mich. App. 94; 315 N.W.2d 202 (1981).
Reversed.
I concur with the majority that this conviction must be set aside. I write separately to urge the Supreme Court to reexamine the policy considerations underlying its decision in People v Rogers, 412 Mich. 669; 316 N.W.2d 701 (1982). The Court has imposed the sanction of automatic reversal for failure to follow GCR 1963, 785.7(1)(f) even absent any demonstration of prejudice to the defendant. In my judgment, imposition of this sanction would be appropriate, if ever, only to correct a most serious problem affecting the criminal justice system, a problem which could not be resolved fairly and effectively in any other way. I am not persuaded that the extremely remote possibility that a murderer or armed robber may plead guilty under the mistaken belief that he or she will be placed on probation is a problem requiring such a drastic and inflexible remedy. The voluntariness and understanding nature of such pleas can be insured adequately by appellate consideration of each case on its own merits to determine if prejudicial error occurred. As the Supreme Court stated in People v Robinson, 386 Mich. 551, 562; 194 N.W.2d 709 (1972):
"[A]ppellate courts should not reverse a conviction unless the error was prejudicial."
In this case, defendant does not even claim that he was prejudiced, and the record conclusively establishes that his pleas were made in an understanding, voluntary, and accurate manner. He was fully aware that he would not be placed on probation. Were it not for the mandate of People v Rogers, supra, therefore, I would affirm.