People v. Lendzian , 80 Mich. App. 323 ( 1977 )

80 Mich. App. 323 (1977) 263 N.W.2d 360

PEOPLE
v.
LENDZIAN

Docket No. 31203.

Michigan Court of Appeals.

Decided December 9, 1977.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and J. Anthony Sykora, Prosecuting Attorney, for the people.

Cubitt & Cubitt (by John T. Ferris), for defendant on appeal.

Before: BRONSON, P.J., and M.J. KELLY and BEASLEY, JJ.

PER CURIAM.

Defendant appeals his plea-based conviction for armed robbery, MCLA 750.529; MSA 28.797, raising three alleged defects in the plea-taking procedure. We affirm.

Defendant first alleges error in the failure of the trial court to advise him that he may be charged as a habitual offender, GCR 1963, 785.7(1)(c). As there has been no showing that defendant has been so charged, this was not reversible error. People v Love, 76 Mich. App. 379; 256 NW2d 602 (1977), People v Michael Jones, 73 Mich. App. 91; 250 NW2d 554 (1976).

Defendant's second allegation of error is that the trial judge failed to inform him that he could not be placed on probation if the plea was to armed robbery, as required by GCR 1963, 785.7(1)(f).

A failure to comply with GCR 1963, 785.7 does not automatically mandate reversal:

"Noncompliance with a requirement of Rule 785.7 may but does not necessarily require reversal.

"Whether a particular departure from Rule 785.7 justifies or requires reversal or remand for additional proceedings will depend on the nature of the noncompliance." Guilty Plea Cases, 395 Mich. 96, 113; 235 NW2d 132 (1975).

In People v Freeman, 73 Mich. App. 568, 570; 252 NW2d 518 (1977), this Court held that a failure to comply with GCR 1963, 785.7(1)(f) was harmless error where "as a result of the sentence agreement, defendant knew before he pleaded that he was going to prison if he pleaded guilty".

In the case at bar, although there was no sentencing agreement, the court read to defendant the statute under which he was charged. That statute provides that armed robbery is "punishable by imprisonment in the state prison for life or for any term of years". The trial court continued:

"THE COURT: And you heard me read the statute under which you are charged. Do you have any questions about the statute at this time?

"THE DEFENDANT: No.

"THE COURT: Do you understand the possible punishment as set forth in that statute?

"THE DEFENDANT: Right."

In light of defendant's response that he understood the possible punishment for armed robbery, we hold that the failure of the trial court to strictly comply with GCR 1963, 785.7(1)(f) was not reversible error.

In addition, under the prior rule, which did not require a defendant to be informed that he could not be put on probation for armed robbery, but which did require the court to inform him of any mandatory minimum sentence, it was not reversible error not to inform a defendant who pleaded guilty to armed robbery that he could not be placed on probation. Guilty Plea Cases, supra, at 118.

Finally, defendant alleges error in the trial court's failure to strictly comply with GCR 1963, 785.7(1)(g), which requires the court to inform defendant of several rights defendant is giving up by pleading guilty. Defendant contends that the court failed to inform defendant that a guilty plea would waive his right to a trial and that the right to a trial included the right to question witnesses against him. On review of the transcript, we find that defendant was informed that a guilty plea would waive his right to a trial, to have witnesses against him appear and to compulsory process for obtaining witnesses in his favor. In this case, failure to strictly comply with GCR 1963, 785.7(1)(g) does not mandate reversal. Guilty Plea Cases, 395 Mich. 96, 122-123; 235 NW2d 132 (1975), People v Love, supra.

Affirmed.