*1 App 666 v LAMARR JOHNSON PEOPLE 15, 1981, September at Detroit. De- Docket No. 54630. Submitted 24,1981. appeal applied for. to Leave cided November plea guilty, pursuant sentence to Lamarr Johnson to Detroit, Court of of Recorder’s commission Hobson, appeals, alleging that his J. Defendant Donald by failing voluntary to the trial court erred not and that placed probation or earn could him he not be advise good against Held: time sentence. regarding alleged the voluntariness errors 1. The parte filed with in ex affidavits raised for the time are may enlarge to Appeals. Such affidavits record on to advise the defendant The failure of 2. error could not be he he was knew that reversal because bargain. as a failure to advise the defendant 3. trial court’s requires time error which the case could not earn withdraw his remanded to allow the defendant the true minimum term which not informed of because was plea. guilty he would serve Remanded allow withdrawal defendant’s J., He hold that it is not P. dissented. would for a trial court to fail to inform defendant reversible error pleads inability time. He would who of his affirm. the Court Appeal Appeal. Ex
1. Record Parte Affidavits affidavits, filed for Court of Ex the first in the [3] [2] [1] [4] 21 Am 21 Am Jur 21 Am Am Jur Jur Jur 2d, Appeal 2d, 2d, 2d, References Criminal Criminal Criminal Law 477. Law Law 473. for Points Error § § §§ § 528. Headnotes People v Lamarr appeal; the record on where factually support allegations the record does not a defendant pled guilty who wishes the defendant must first move to set aside his in the trial court. *2 Guilty— — — 2. Criminal Law Pleas Probation Rules. Court guilty-plea A trial court’s failure to advise a defendant at a that the defendant could not requir- for the offense to which he was was not error ing reversal where the defendant knew that he was (GCR bargain 1963, 785.7[l][f]). Guilty— — — — Pleas Good Criminal Law Time Statutes Court Rules. pleading guilty A defendant is to informed the true mini- prison; mum term which he will in trial court’s failure to inform a defendant that he cannot requiring his conviction for murder is error reversal (MCL 791.233b; 28.2303[3], 785.7[l][d]). MSA GCR by Guilty— — 4. Criminal Law Pleas Good Time Statutes Court Rules. pleads guilty Failure of a trial court to advise defendant who charge of murder that he cannot earn time to reduce his (MCL minimum sentence is not error reversal 791.233b; 28.2303[3], 1963, 785.7[l][d]). MSA GCR Attorney Kelley, General, Frank J. Robert A. Derengoski, General, Cahalan, Solicitor William Prosecuting Attorney, Reilly Wilson, Edward Prin- cipal Attorney, Carolyn Schmidt, and M. Prosecuting Attorney, people. Assistant for the Jacobs, Elizabeth L. for defendant on P.J., Before: N. and R. M. Maher D. C. JJ. Riley, charged Per Curiam. Defendant was with first- degree possession during murder, of a firearm felony, commission of a and assault with intent to 111 plea and sentence Pursuant murder. commit second-degree bargains, 28.549, and 750.317; MSA murder, MCL of a the commission sen- Defendant’s MCL tence, agreement, in accordance years on the 5 to 15 years statutorily charge two mandated charge. felony-firearm right appeals asserts first as of Defendant voluntary, and, hence, rever- that his agree. We do not sal is mandated. the record indicates review of
Our by for the are raised the defendant errors claimed affidavits. This ex time on supplementing practice has addressed appellate affidavit *3 (1976), People App 19; 73 Mich Boone, 650; 244 NW2d 68 Mich Johnson, 58 Mich v Nelson case, our has In each parte affidavits, for the first filed that ex concluded appellate court, time in the supra, Johnson, the 478. Where the the record. allegations support factually record does appeal, he must first defendant wishes plea in trial court. the move to set aside supra, Boone, of the record 652. The integrity challenged cannot be made at the complied court has with where the trial supra, provisions 1963, 29- of GCR 785.7. contains de- note also that We testimony his satisfied with fendant’s attorney’s was light record, defen- In of this
services.
involuntary plea
appeal of an
claim on
dant’s
incompetence
without merit.
of counsel is
based on
v Lamarr
Second, defendant asserts that
the trial court
reversibly
failing
erred in
to advise him that he
probation upon
could not
his
785.7(1)(f).
1963,
murder. GCR
Peo
ple
Freeman,
73 Mich
reversible error.
Finally, alleges that the trial court should have told defendant that he could not earn his conviction for murder under Proposal B, MCL 785.7(l)(d) purpose 1963, of GCR is to in-
form defendant of the minimum term he will guilty plea serve in premised so that his will be
on the conscious awareness consequences. agree We with defendant possible would not be known the minimum sentence he would have to serve unless he was advised of the for this defendant to have
mandatory
requirements
legislation
B. While this
subsequent
Guilty
enacted
Plea
Cases,
Supreme
parameters sentencing mandatory of rule is aware, defendant must *4 made court, of the true minimum term he will serve plea. People Jones, v People 301 Mitchell, NW2d 822 v 102 require- Mich 302 230 That ment was not met here. Mich P.J. N. to the this cause
We remand permit to withdraw his (dissenting). respectfully I Although preferable it is for a I dissent. believe trial impact to warn a court B, hold that I would not agree with the so. I to fail to do
reversible error
majority opinions
Elder, 104 Mich
App 695, 697;