349 N.W.2d 813 | Mich. Ct. App. | 1984
PEOPLE
v.
SHANNON
Michigan Court of Appeals.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Edward J. Grant, Prosecuting Attorney, and Joseph A. Greenleaf, Chief Appellate Attorney, for the people.
State Appellate Defender (by P.E. Bennett), for defendant on appeal.
Before: M.J. KELLY, P.J., and ALLEN and R.S. HOFFIUS,[*] JJ.
PER CURIAM.
On his plea of guilty, defendant was convicted of assaulting an employee of a place of confinement, MCL 750.197c; MSA 28.394(3). A plea bargain in the case resulted in the dismissal of two assault charges and dismissal of a fourth-felony offender charge. MCL 769.12; MSA 28.1084. Defendant appeals as of right.
On appeal, defendant claims that his conviction should be reversed because the trial judge misinformed him of the maximum sentence for the offense to which he was pleading. Defendant was told twice that the maximum sentence for his offense was five years; it is, in fact, four years. See MCL 750.503; MSA 28.771. Defendant was told that the sentence would run consecutively to the sentence he was serving at the time of the offense. *37 He was sentenced to a consecutive term of two and one-half to four years in prison.
GCR 1963, 785.7(1)(b) requires a judge accepting a guilty plea to inform the defendant personally of the maximum possible prison sentence for the offense to which the plea is offered. A failure to impart the information concerning the maximum possible sentence generally requires reversal. Guilty Plea Cases, 395 Mich. 96, 118; 235 NW2d 132 (1975).
The failure to advise a defendant pleading guilty of the maximum sentence which could be imposed should not be regarded as reversible error per se where there is a sentence bargain and the defendant has been sentenced in accordance with the bargain. People v Jackson, 417 Mich. 243, 246; 334 NW2d 371 (1983).
In this case, the trial judge did not fail to impart information concerning the maximum sentence, but informed the defendant that the maximum possible sentence was higher than it actually was. We do not regard such an error as coming within the per se rule requiring reversal adopted in Guilty Plea Cases, supra, Instead, this issue must be decided by applying the general rule that the nature of the noncompliance with the court rule determines whether reversal is required. See Guilty Plea Cases, supra, p 113, where it is stated as follows:
"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."
The foregoing statement from Guilty Plea Cases, *38 supra, has been cited in People v Rogers, 412 Mich. 669, 671; 316 NW2d 701 (1982).
The decision in Jackson, supra, suggests that reversal is not required where no possibility exists that a defendant has been misled to his prejudice.
We believe that the error in informing the defendant that the maximum possible sentence was greater than it actually was does not require reversal. The rule requiring that a judge inform a defendant of the maximum possible sentence for the offense to which he is pleading was intended to inform the defendant of the most serious consequences he faces if he pleads guilty. This purpose was fully served in the present case, despite the fact that defendant was misinformed as to the maximum penalty.
Misinformation concerning a maximum possible sentence could mislead a defendant to his prejudice if he is informed that the maximum is less than it actually is. We conclude, however, that defendant was not misled to his prejudice. Reversal is not, therefore, required.
Affirmed.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
