People v. Haker

• Decision Date: 14 May 1987
• Docket Number: Docket No. 91997
• Citation: 158 Mich.App. 570,405 N.W.2d 204
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William Kenneth HAKER, Defendant-Appellant. 158 Mich.App. 570, 405 N.W.2d 204
• Court: Court of Appeal of Michigan — District of US

Page 204

405 N.W.2d 204

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. William Kenneth HAKER, Defendant-Appellant.

Docket No. 91997.

158 Mich.App. 570, 405 N.W.2d 204

Court of Appeals of Michigan.

Submitted Nov. 6, 1986.

Decided March 17, 1987.

Released for Publication May 14, 1987.

[158 MICHAPP 571] Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., Jon W. Newman, Pros. Atty., and Charles D. Sherman, Asst. Pros. Atty., for the People.

Donald L. Correll, Lansing, for defendant-appellant.

Before HOLBROOK, P.J., and ALLEN and CLULO, ^* JJ.

ALLEN, Judge.

Should defendant be permitted to [158 MICHAPP 572] withdraw his guilty plea after sentencing because a conviction used as a predicate offense was constitutionally infirm due to the lack of counsel?

This issue of first impression arises on the following facts.

Defendant was not represented by an attorney in proceedings pertaining to his September 5, 1984, misdemeanor conviction for operating a vehicle while under the influence of alcohol (OUIL), second offense. M.C.L. Sec. 257.625(5); M.S.A. Sec. 9.2325(5). Subsequently, on December 9, 1985, defendant pled guilty to a felony charge of OUIL, third offense, M.C.L. Sec. 257.625(6); M.S.A. Sec. 9.2325(6), and was sentenced to a term of from three to five years imprisonment. After sentencing, defendant moved to withdraw his plea of guilty and asserted as grounds for the withdrawal that the OUIL, second offense conviction was constitutionally infirm due to the lack of counsel.

We find that the defendant should have moved to quash the information or strike from the information the infirm conviction before tendering his guilty plea. By failing to do so, the defendant waived he right to challenge the validity of the predicate offense for purposes of the OUIL, third offense conviction.

At defendant's plea-taking proceeding, it was established that, in exchange for defendant's guilty plea, the prosecutor agreed to the dismissal of pending misdemeanor charges for assault and battery, marijuana possession and driving with a suspended license, second offense. The prosecutor also promised not to file a supplemental information charging defendant as a fourth-felony offender. The effect of this agreement was to provide that the defendant would face only a five-year maximum sentence, see M.C.L. Sec. 257.902; M.S.A. Sec. 9.2602, instead of the life sentence he potentially [158 MICHAPP 573] faced as an habitual offender. M.C.L. Sec. 769.12; M.S.A. Sec. 28.1084.

When defendant's plea was taken, defendant was specifically asked by the trial court whether he had been represented by an attorney at proceedings pertaining to his two prior OUIL convictions. Defendant responded affirmatively. However, defendant's presentence information report, prepared after acceptance of the plea, stated that defendant was not represented by counsel at his second OUIL plea-based conviction. Neither the trial judge, the prosecutor, defense counsel nor the defendant made mention of the lack of counsel prior to sentencing. However, defendant's appellate counsel followed up on the presentence information report and established that defendant was not represented by counsel at the subject proceedings and, moreover, that defendant never waived his right to counsel. As a result of these findings, defendant's appellate counsel prepared the motion to withdraw defendant's plea.

In People v. Stratton, 148 Mich.App. 70, 384 N.W.2d 83 (1985), this Court held that an OUIL, third offense conviction could not stand where the defendant did not have representation of counsel in regards to his two prior OUIL misdemeanor convictions. Similarly, in People v. Schneider, 132 Mich.App. 214, 347 N.W.2d 21 (1984), this Court acknowledged that two prior OUIL convictions obtained without counsel could not be used as support for an OUIL, third offense conviction, or as a basis for enhancing sentence, unless the right to counsel was validly waived. Nonetheless, neither of these two cases speaks to the issue of when a defendant must assert the infirmity of a prior conviction in order for the issue to be taken into consideration.

In People v. Crawford, 417 Mich. 607, 339 N.W.2d [158 MICHAPP 574] 630 (1983), the Michigan Supreme Court held that a plea-based conviction, defective because of a failure to advise the defendant of his Jaworski rights [People v. Jaworski, 387 Mich. 21, 194 N.W.2d 868 (1972) ], could not be used as a predicate offense in an information charging the defendant as an habitual offender. However, the Court indicated that in order to guard against such a conviction being so used, the defendant must make a timely motion to either quash the information or strike from the information the defective conviction. The Court held that in order for the motion to be deemed timely, it must be made before a plea of guilty or nolo contendere is accepted. Since the defendant in Crawford, supra, did not move timely for such relief, his habitual offender conviction was affirmed.

Despite the obvious parallels between Crawford, supra, and the case at bar, defendant attempts to distinguish Crawford, supra, in three ways. First, he notes that the defect in Crawford, supra, involved the failure to advise of Jaworski rights whereas the defect herein involves a denial of the right to counsel. Second, he points out that in Crawford, supra, the Court found that the defendant would suffer no prejudice from use of the defective prior conviction since: (1) the defendant had two other prior convictions that could have been used for supplementation; and (2) he was sentenced within the period that would have been allowed if supplemental charges had not been filed. Finally, defendant notes that in Crawford, supra, the prosecutor was not aware of the defect in the defendant's prior conviction whereas here both the prosecutor and the trial court had reviewed the presentence information report. Accordingly, defendant argues, they should have known that defendant was not represented by [158 MICHAPP 575] counsel with respect to the prior conviction and should have investigated whether defendant had waived said right.

We do not view the defendant's bases for distinguishing Crawford, supra, from the present case as persuasive for the following reasons. First, we believe that Crawford, supra, must be read as blurring any distinction between a failure to advise of Jaworski rights and the absence of counsel. Defendant asserts a contrary proposition based on Justice Brickley's concurring opinion in Crawford, supra, wherein he stated that he would allow an attack on a prior guilty plea in a subsequent habitual offender proceeding only if the prior plea were taken in violation of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), i.e., if it were taken without the defendant's being afforded the right to counsel. In response to this concurring opinion, the majority noted that while the denial of the right to counsel had been accorded "special importance," the Court had "assigned pre-eminent importance" to a full recital of a defendant's rights in a guilty plea proceeding. Crawford, supra, 417 Mich. at p. 614, n. 14, 339 N.W.2d 630. Thus, the Court resolved that a conviction gained without the...