Opinion
Docket No. 64611.
Decided June 8, 1983.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Edward J. Grant, Prosecuting Attorney, and Brian E. Thiede, Chief Appellate Attorney, for the people.
State appellate Defender (by P.E. Bennett), for defendant on appeal.
This appeal arises out of defendant's conviction and sentence for one count of breaking and entering an occupied dwelling, MCL 750.110; MSA 28.305, and a probation revocation hearing stemming from an additional breaking and entering of an occupied dwelling, MCL 750.110; MSA 28.305, at a different time and place than the other.
Initially, defendant contends he must be resentenced because his counsel at sentencing had previously been an assistant prosecuting attorney who appeared against defendant in the cases involved in the instant appeal. We disagree.
Our review of the record reveals that defendant was not prejudiced by the representation he received at sentencing and hence a remand for resentencing is unnecessary. Not only was counsel retained by defendant to appear at sentencing but defendant was aware of the fact that retained counsel had previously been actively engaged as an assistant prosecutor in such cases. At the time of defendant's sentencing his counsel was in private practice. Additionally, counsel's only contact with the case as defendant's representative was as defense counsel retained for the purpose of sentencing only. Moreover, our review of the record indicates that retained counsel's representation of defendant at sentencing inured to the benefit of the defendant, not to defendant's detriment. The court stated at the sentencing:
"I would like to say, Mr. Gorzen, I had in mind of giving you quite a bit more time than that, but my conferences with your lawyer, and various recommendations you've got, I did lower the minimum considerably from what I had in mind." (Emphasis added.)
If anyone suffered as a result of retained counsel's representation of defendant at sentencing it was the people, not the defendant. It appears defendant simply wants another bite at the apple.
Lastly, defendant contends his conviction for probation violation should be reversed because he was not advised at the guilty plea proceeding thereon of the maximum possible sentence for the offense upon which he was being sentenced. We agree. GCR 1963, 791.5(b)(2) provides as follows:
"(b) Before the court accepts a guilty plea, it shall, speaking directly to the probationer and receiving the probationer's response,
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"(2) personally advise the probationer of the maximum possible sentence for the offense that led to probation;" (Emphasis added.)
While we are unaware of any decision by this Court interpreting the aforesaid provision, we have every reason to believe that the Supreme Court would apply the same rule thereto as it has for a violation of GCR 1963, 785.7(1)(b). See People v Beaty, 400 Mich. 813; 282 N.W.2d 921 (1977). Accordingly, we hold that failure of the trial court to advise defendant of the maximum sentence for the underlying conviction at the probation revocation hearing constitutes reversible error. Beaty, supra.
Hence, defendant's sentence upon his guilty plea for breaking and entering is affirmed and his sentence for probation violation is reversed and remanded to the trial court to permit defendant an opportunity to withdraw his plea thereto.
Affirmed in part, reversed in part, and remanded.