People v. Michael Jones , 73 Mich. App. 91 ( 1976 )

73 Mich. App. 91 (1976) 250 N.W.2d 554

PEOPLE
v.
MICHAEL JONES

Docket No. 28503.

Michigan Court of Appeals.

Decided December 10, 1976.

Serman & Leh, for defendant.

Before: ALLEN, P.J., and T.M. BURNS and BEASLEY, JJ.

T.M. BURNS, J.

On December 18, 1975, defendant pled guilty to breaking and entering, MCLA 750.110; MSA 28.305. He was sentenced to 5 to 10 years in prison and appeals as of right.

Defendant argues on appeal that the trial court erred in failing to inform him that if he was previously convicted of a felony, his plea of guilty could subject him to prosecution as a habitual criminal. The transcript of the plea hearing reveals that the advice was not given.

GCR 1963, 785.7 provides in relevant part:

"Prior to accepting the plea, the court shall personally carry out subrules 785.7(1)-(4).

"(1) An Understanding Plea. Speaking directly to the defendant, the court shall tell him:

* * *

"(c) If he has been previously convicted of a felony, he may be charged as a habitual offender and the maximum possible sentence may be increased."

This amended court rule became effective December 7, 1975, prior to the entry of the plea in the instant case. The trial court clearly failed to comply with the court rule. We are not persuaded, however, that this error mandates automatic reversal of defendant's conviction.

The error in this case is closely analogous to the failure to advise a guilty-pleading defendant of possible sentencing consequences of his being on probation or parole at the time of his plea. Where it is asserted on appeal that the trial court failed to advise a guilty-pleading defendant in that regard, the proper procedure is to remand the case to the trial court and order the judgment of conviction set aside if it appears that the defendant was in fact on probation or parole at the time his plea was entered and that he was subjected to confinement for violating parole or probation because of his guilty plea conviction. If the defendant was not so prejudiced, the judgment of conviction is deemed affirmed. Guilty Plea Cases, 395 Mich 96, 127-128; 235 NW2d 132 (1975). While we believe that a similar rule is appropriate here, remand of this cause is not justified on the present record. The defendant has not alleged or offered any evidence to show that he has in fact been subjected to prosecution or an increased sentence based on the habitual offender statutes. Absent a showing of actual prejudice, we affirm the defendant's conviction and sentence. However, if the defendant can produce evidence showing (1) that he is an habitual offender and (2) that he has been subjected to an additional prosecution or an increased sentence because of that status, we would then consider a motion for rehearing filed in this Court.

Defendant's remaining argument does not merit restatement.

Affirmed.