Opinion
Docket No. 11436.
Decided November 29, 1971.
Appeal from Recorder's Court of Detroit, George W. Crockett, Jr., J. Submitted Division 1 November 3, 1971, at Detroit. (Docket No. 11436.) Decided November 29, 1971.
Maurice Jones was convicted, on his plea of nolo contendere, of an attempt to take indecent liberties with a minor. Defendant appeals. Reversed and remanded.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Robert A. Reuther, Assistant Prosecuting Attorney, for the people.
Carl Ziemba, for defendant on appeal.
Defendant was charged with attempt to take indecent liberties with (MCLA § 750.336 [Stat Ann 1954 Rev § 28.568]), and having carnal knowledge of, a minor under 16 years of age (MCLA § 750.520 [Stat Ann 1954 Rev § 28.788]).
On October 13, 1970, a hearing was held before a judge of the recorder's court at which time defendant purported to offer a plea of nolo contendere to the charge of attempt to take indecent liberties with a minor. The judge informed defendant, before plea was entered, that the maximum sentence he could receive was five years. Defendant proceeded to unequivocally waive, both orally and in writing, his right to trial by jury. The court then conducted proceedings as though defendant had pled guilty. On November 4, 1970, defendant was sentenced to serve from 2-1/2 to 5 years. On February 22, 1971, the court set aside the sentence which had been imposed on November 4, 1970, and imposed a new sentence of from 2-1/2 to 10 years. The judge explained that he had erroneously believed the maximum sentence under the indecent liberties statute was five years where in actuality it was ten. Defendant's attorney indicated that perhaps defendant would like to withdraw his plea because it was entered on the belief that attempt to take indecent liberties carried a maximum sentence of five years. The court, nevertheless reformed defendant's sentence from a maximum of five to a maximum of ten years.
It has been held that the requirement of GCR 1963, 785.3, that the defendant be informed of the consequences of his plea does not require that the defendant be informed of the maximum or minimum sentences to which his plea will subject him as long as the defendant knows he is subject to punishment. People v. McFarland (1969), 17 Mich. App. 599. Even though the court was not required to volunteer the maximum statutory sentence in this case, the court did so, erroneously informing defendant. It appears to this Court that the policy of GCR 1963, 785.3, in requiring that the defendant be apprised of the consequences of his plea implies that the defendant not suffer misfortune because of a misstatement of the consequences of his plea by the court. Because of defendant's apparent reliance on the representation of the court, it was error for the court to reform defendant's sentence in the manner here attempted.
Reversed and remanded.