People v. Albert , 120 Mich. App. 396 ( 1982 )

120 Mich. App. 396 (1982) 327 N.W.2d 489

PEOPLE
v.
ALBERT

Docket No. 60540.

Michigan Court of Appeals.

Decided October 7, 1982.

Thomas A. Law, for defendant.

Before: T.M. BURNS, P.J., and BEASLEY and C.W. SIMON,^[*] JJ.

PER CURIAM.

On April 29, 1981, defendant, William James Albert, pled nolo contendere to armed robbery, in violation of MCL 750.529; MSA 28.797. The plea was made after a jury trial in which defendant was found not guilty of four charges (armed robbery, criminal sexual conduct in the first degree, and two counts of felony-firearm) and were unable to agree and hung regarding eight other charges (armed robbery and seven counts of criminal sexual conduct in the first degree). After being sentenced to not less than 33 months nor more than 6 years in prison, defendant appeals as of right.

On appeal, defendant raises several issues. First, he maintains that his nolo contendere plea must be vacated because of the trial court's failure to advise him of the sentencing consequences of MCL 791.233b; MSA 28.2303(3), otherwise known as Proposal B. This issue was decided adversely to defendant in People v Johnson,^[1] where the Supreme Court held that GCR 1963, 785.7 does not require advice concerning the consequences of Proposal B.

Second, defendant asserts that the trial court failed to advise him of the mandatory minimum sentence for armed robbery. The record discloses that defendant was, in fact, informed that the minimum sentence for the offense of armed robbery was "any number of years". In conformity with the proposition set forth in People v Harper^[2] and People v Taylor,^[3] we conclude that the trial court complied with the court rule^[4] which requires the defendant to be advised of the mandatory minimum sentence of the pleaded offense.

Defendant also contends that his plea was not voluntarily made as a consequence of the trial judge omitting to inform him that the prosecutor's burden at trial is to prove guilt beyond a reasonable doubt. At the plea-taking procedure, the following colloquy occurred:

"The Court: And if you elected to have a trial you would be presumed to be innocent until proven guilty by the use of competent evidence by the people?

"Defendant: Yes."

In a matter strikingly similar to the within matter,^[5] the Supreme Court held that despite the trial judge neglecting to inform the defendant that guilt at trial must be proven beyond a reasonable doubt, the defendant was adequately apprised of the trial rights he would be waiving by pleading guilty. Accordingly, we do not find that the imprecise recital of the trial rights warrants reversal.

Defendant also claims that the trial court coerced him into pleading nolo contendere by threatening to assign the case to another Recorder's Court judge. As illustrated by the following exchange, the record is barren of support for this claim:

"The Court: All right. You told me you understand all those rights. By offering this plea, do you understand that you are waiving those rights, giving them up?

"Defendant: Yes.

"The Court: Knowing that, do you still want to offer this plea?

"Defendant: Yes.

"The Court: Is your plea free and voluntary?

"Defendant: Yes.

"The Court: Has anyone forced you or threatened or promised you anything in order to get you to offer this plea?

"Defendant: No."

Defendant challenges the trial court's acceptance of the nolo contendere plea, asserting that his lack of recollection of the offense, stemming from intoxication, was inappropriate to justify approval of the plea. The applicable court rule requires that the trial court conduct a hearing, unless one has already been held, to establish factual support for a finding that a defendant is guilty of the offense to which he is pleading.^[6]

In accepting a nolo contendere plea, a trial court may employ several bases for finding the plea to be appropriate: (1) a reluctance on the defendant's part to recount the particulars of a sordid offense; (2) the defendant's remembrance of the facts is foggy, e.g., he was intoxicated at the time of the commission of the crime; and (3) because the defendant desires to minimize other ramifications, such as civil litigation.^[7]

Here, defendant stated he was unable to recall what occurred since he was in an intoxicated state at the time of the perpetration of the offense. The factual basis for the armed robbery charge was established by the evidence in a trial of this matter over which the trial judge presided. Our careful review of the record persuades us that defendant's nolo contendere plea was accepted for sufficient reasons and an adequate factual basis for the plea was made.

Last, defendant asserts that he is entitled to resentencing because the trial court did not sentence him in conformity with the sentence bargain offered to him at the time the plea was made. The record reveals that, in accepting the plea, the trial court agreed to impose a sentence of one year and a day to three years. The record does not indicate why the trial judge did not impose the sentence he indicated at the time of the plea.

Therefore, we remand this matter to the trial court for resentencing. If the trial judge does not impose the sentence indicated at the time of the plea, defendant shall be given an opportunity to withdraw his nolo contendere plea and to have the matter assigned to another judge for further proceedings on the charge.^[8]

Remanded.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.

[1] 413 Mich. 487; 320 NW2d 876 (1982).

[2] 83 Mich. App. 390, 397-398; 269 NW2d 470 (1978), lv den 406 Mich. 1021 (1979).

[3] 112 Mich. App. 94, 95-97; 315 NW2d 202 (1982).

[4] GCR 1963, 785.7(1)(d).

[5] Guilty Plea Cases, 395 Mich. 96, 122-123; 235 NW2d 132 (1975).

[6] GCR 1963, 785.7(3)(b)(ii). For history and criticism of the nolo contendere plea, see People v Gonzales, 70 Mich. App. 319; 245 NW2d 734 (1976).

[7] Guilty Plea Cases, supra, p 134.

[8] Having reviewed People v Dixon, 103 Mich. App. 518, 523-525; 303 NW2d 32 (1981), we agree that the trial judge participated in the sentence bargaining negotiations. However, we do not approve of the Dixon court's remedy of specific performance of the sentence agreement.