Docket Nos. 68461, 69292.
Argued May 5, 1983 (Calendar Nos. 13, 14).
Decided October 17, 1983.
Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, Robert H. Cleland, Prosecuting Attorney, and Peter R. George, Chief Appellate Attorney, for the people in Blythe. Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Deputy Chief, Civil and Appeals, Timothy A. Baughman, Principal Attorney, Research, Training and Appeals, and Carolyn Schmidt, Assistant Prosecuting Attorney, for the people in Luke.
State Appellate Defender (by Chari C. Grove) for defendant Blythe.
Irving Tukel for defendant Luke.
In these consolidated cases, we granted leave to determine whether the phrase "for life or for any term of years" in the armed robbery statute refers to the mandatory minimum sentence to be imposed.
Defendant Luke pled guilty to a charge of armed robbery and was sentenced to imprisonment for a term of six months to four years. Under MCL 750.529; MSA 28.797, armed robbery is punishable by imprisonment "for life or for any term of years". The people argued in the Court of Appeals that the language "any term of years" requires a minimum sentence of at least a year and a day. On April 8, 1982, the Court of Appeals affirmed the sentence imposed by the trial court. 115 Mich. App. 223; 320 N.W.2d 350 (1982). The people then filed the instant request for review.
Defendant Blythe pled guilty to a charge of armed robbery and was sentenced to imprisonment for a term of 7-1/2 to 30 years. Blythe argued in the Court of Appeals that the language "any term of years" refers to the mandatory minimum sentence for armed robbery and that the failure of the trial court to advise him of the minimum sentence at the plea proceeding constitutes a violation of GCR 1963, 785.7(1)(d), warranting a reversal of his conviction. Alternatively Blythe claimed that his guilty plea should be set aside on the basis of ineffective assistance of counsel. Blythe's plea-based conviction and sentence were affirmed by the Court of Appeals on November 17, 1981. 111 Mich. App. 366; 314 N.W.2d 624 (1981). Blythe now requests review.
We conclude that the phrase "for life or for any term of years" in the armed robbery statute refers to the maximum sentence to be imposed and that this provision does not include a mandatory minimum sentence. Thus, the sentence of six months to four years given to Luke was within appropriate sentencing limits. The failure to advise Blythe of a mandatory minimum for the offense of armed robbery was not error.
The only minimum sentence limit to be imposed with respect to the crime of armed robbery is that it is a non-probationable offense. MCL 771.1(1); MSA 28.1131(1).
In People v Burridge, 99 Mich. 343; 58 N.W. 319 (1894), we held that, where a statute provides imprisonment for life or for any term of years, the minimum sentence imposed shall not be less than two years. In Burridge, we rejected a sentence of nine months where that sentence represented both the maximum and the minimum. We conclude, however, that Burridge is inapposite to resolution of the question before us since it was decided prior to enactment by the Legislature in 1903 of the indeterminate sentencing law. 1903 PA 136, now MCL 769.9; MSA 28.1081.
In fact, the language of the first valid indeterminate sentence statute, 1903 PA 136, indicates that the Legislature impliedly rejected the Burridge two-year interpretation. The Legislature stated in the course of outlining the procedure to be followed by the trial court in fixing an indeterminate sentence that "in all cases where the maximum sentence, in the discretion of the court, may be for life or any number of years, the court imposing sentence shall fix the maximum sentence". Thus, in its treatment of sentencing requirements in connection with a crime punishable by life or any term of years, the Legislature viewed that phrase as related only to the maximum sentence. This particular proviso contained no requirement that the court set a minimum sentence of two years or a year and a day. This strongly suggests that the Legislature itself viewed "life or any term of years" as a description of the maximum sentence only.
The inapplicability of the Burridge two-year minimum required for "any term of years" is further demonstrated by the Legislature's amendment of the armed robbery statute to provide for a specific minimum sentence of two years if an aggravated assault or serious injury is inflicted in the course of the robbery. MCL 750.529; MSA 28.797. Application of the Burridge interpretation would lead to the anomalous result of identical minimum sentences for armed robbery and for the aggravated offense. This reading makes the armed robbery statute both illogical and redundant. See People v Harper, 83 Mich. App. 390, 396, fn 1; 269 N.W.2d 470 (1978), lv den 406 Mich. 1021 (1979).
Application of the Burridge interpretation results in another anomaly when its interaction with the probation statute, MCL 771.1; MSA 28.1131, is considered. The Legislature has designated numerous criminal acts as "punishable by life * * * or for any term of years". Of these crimes, murder, armed robbery, and first-degree criminal sexual conduct are the only ones which the probation statute designates as offenses for which probation is not available. MCL 771.1(1); MSA 28.1131(1). Yet if the Burridge rule is applied, all of the crimes listed in the margin carry a mandatory minimum sentence of two years. Thus, any defendant convicted of one of these crimes must receive a sentence of at least two years. Such an interpretation renders meaningless the specific exclusion of murder and robbery in the probation statute.
Assault with intent to commit murder, MCL 750.83; MSA 28.278, assault with intent to rob while armed, MCL 750.89; MSA 28.284, setting fire to mines and mining material, MCL 750.80; MSA 28.275, attempted murder, MCL 750.91; MSA 28.286, second-degree murder, MCL 750.317; MSA 28.549, death due to explosives, MCL 750.327; MSA 28.559, death due to explosives with the intent to destroy a building or object, MCL 750.328; MSA 28.560, perjury committed in court in a trial for a capital crime, MCL 750.422; MSA 28.664, poisoning food, drink, etc., with the intent to kill or injure, MCL 750.436; MSA 28.691, attempt to wreck railroad trains or endanger the safety of passengers, MCL 750.511; MSA 28.779, detention by force of a railroad train by means of intimidation for the purpose of robbing, MCL 750.517; MSA 28.785, first-degree criminal sexual conduct, MCL 750.520b; MSA 28.788(2), armed robbery, MCL 750.529; MSA 28.797, and bank robbery, MCL 750.531; MSA 28.799.
The majority of courts considering the instant question have concluded that there is no mandatory minimum sentence for statutes stating that the offense is punishable for life or "any term of years". See, e.g., People v McKnight, 72 Mich. App. 282; 249 N.W.2d 392 (1976), lv den 399 Mich. 848 (1977). The contrary view posits that the language "any term of years" refers to a mandatory minimum sentence which must be communicated to a defendant pursuant to GCR 1963, 785.7(1)(d), and that the mandatory minimum is a year and a day. People v Harper, supra; People v West, 113 Mich. App. 1; 317 N.W.2d 261 (1982).
We reject this latter view, which is predicated on the following three propositions. First, the term "years" may be applied and limited to the term "year". MCL 8.3b; MSA 2.212(2); Harper, supra, p 397. While we accept this premise as eminently reasonable, we find that it does nothing to clarify whether the entire phrase in question relates to the mandatory minimum or to the maximum.
Second, proponents of the "year and a day" analysis postulate that GCR 1963, 785.7(1)(d) refers to the duty to advise of a "prison" sentence and that pursuant to MCL 769.28; MSA 28.1097(1) there can be no prison term for a defendant serving one year or less. Harper, p 397. A review of MCL 769.28; MSA 28.1097(1) reveals that housing in the state penal institution, as opposed to the county jail or Detroit House of Correction, is dependent upon the maximum sentence imposed, and thus, so long as the defendant is sentenced to a maximum of at least a year and a day, incarceration will be in prison, regardless of the sentence minimum.
Third, proponents of this view conclude that any "`felony' means an offense for which the offender, upon conviction, may be punished by death or by imprisonment for more than one year". (Emphasis in original.) Harper, pp 397-398; MCL 761.1(g); MSA 28.843(g). This provision does not answer the question whether there is a mandatory minimum sentence for armed robbery; it merely defines a felony with reference to the potential punishment. An offense is a felony so long as the statutory maximum is for more than one year, regardless of the mandatory minimum.
Moreover, an offense can be a felony regardless of the mandatory minimum or maximum if the offense is "expressly designated by law to be a felony". MCL 761.1(g); MSA 28.843(g).
In addition, the "year and a day" analysis, when considered in connection with the probation statute, results in the same anomaly discussed above in connection with the Burridge "two-year" interpretation.
In sum, we reject the "year and a day" analysis, and we find instead that the language "for life or for any term of years" refers to the maximum sentence which may be imposed for armed robbery and that this statute does not include a mandatory minimum for the non-aggravated offense.
The mandatory minimum sentence for an armed robbery accompanied by aggravated assault or serious injury is, as specified in MCL 750.529; MSA 28.797, two years imprisonment.
Accordingly, there being no mandatory minimum sentence for armed robbery, the sentence imposed against defendant Luke was proper and is hereby affirmed.
Blythe was advised, pursuant to GCR 1963, 785.7(1)(d), of the maximum possible prison sentence and that he could not be placed on probation for the offense of armed robbery, and, accordingly, his sentence is affirmed.
Blythe further submits that his guilty plea should be set aside because his confession was coerced and because his trial counsel was ineffective in failing to move to suppress his confession.
Where the record made in connection with a defendant's plea proceeding does not factually support his claim of ineffective assistance of counsel, it is incumbent upon the defendant to move to set aside the plea and to make a separate record factually supporting this claim. People v Ginther, 390 Mich. 436, 443; 212 N.W.2d 922 (1973). Blythe having failed to provide record evidence for this claim, we have no basis for considering it.
The judgments of the Court of Appeals and the trial courts are affirmed in both cases. The motion to strike filed by the prosecution in People v Blythe is considered and is denied.
WILLIAMS, C.J., and KAVANAGH, LEVIN, RYAN, BRICKLEY, and CAVANAGH, JJ., concurred with BOYLE, J.